THE much-anticipated report of the commission of inquiry into the August 1, 2018 post-election violence was finally released, and its contents make for some interesting reading and discussion.
GUEST COLUMNIST PAUL KASEKE
To begin with, it is commendable that President Emmerson Mnangagwa stuck to his promises to release the report. Given the experiences with the Chihambakwe and Dumbutshena commissions’ reports, there were some reasonably placed fears that the government would not honour its word to release the report. That being said, the true test is what the government will do with the report.
It should be borne in mind that a commission of inquiry plays an advisory role of sorts to the President. It is a recognised tool for presidential decision making on matters that are complex and are in the national interest. The President, therefore, can choose when to establish a commission and more so, what to do with the report of such commissions. It is not uncommon for presidents to ignore reports of commissions, and Zimbabwe has a rich history of this.
The report itself is a mixed bag with some damning findings against the police and army on the one hand and the MDC Alliance on the other. It also, unsurprisingly, is a ball of contradictions making it difficult to make sense of what the final report is all about (128 pages), but much of it is repetition or an attempt to explain the unexplainable. I will deal with some aspects of the report that caught my attention.
Finding #1: ‘The MDC- Alliance incited, pre-planned and well organised the demonstrations’
Rather absurdly, the commission starts its report on the premise that the MDC Alliance was responsible for the violent demonstrations and instead of determining which other parties/individuals or factors may have led to the violent protests, the commission readily assumes that it is the MDC alone that is to blame.
The commission cites two speeches by Advocate Nelson Chamisa and Tendai Biti as its basis of incitement and pre-planned protest. While the commission refers to some incidents where inflammatory comments were made by some members of Zanu PF, it quickly counters those claims either by indicating that the individuals were reprimanded by the government or that the person alleged to have made the statement, refuted the claims. Already, the report takes a seemingly anti-MDC position which is consistent throughout the report.
The commission goes on to make bold claims that the MDC was in violation of the electoral code by supposedly motivating and encouraging political violence. What is more concerning is that the commission fails at all stages in its report, to link the MDC Alliance as a party, to the acts of violence by some of the protestors. For lack of a better word, the connection between the violence and the party leadership was unconvincing.
It instead adduces evidence that some of the protesters had Chamisa Chete placards, consumed alcohol and were bussed in for the protests. With respect, this does not, in the slightest bit, implicate the MDC as an entity and its leadership in any wrongdoing.
The commission fails to conclude who bussed the protesters and who bought and distributed the alcohol, yet it uses these grounds to conclude the MDC violated the Act.
Instead of pinning the protesters directly, the commission by some farfetched theory of agency, attributes their actions to the party and its leadership.
Finding #2: The President deployed the army
There was finally consensus that the President authorised the deployment of the army in terms of s213. The commission bases this on two aspects: the confirmation by the Attorney-General that the army could only be lawfully deployed by the President and the confirmation by the Commander of the Zimbabwe Defence Forces that the then ‘Minister of Defence’, sought authorisation from the President to deploy the army.
Though there are clumsy attempts by the commission to reconcile Public Order and Security Act (Posa) and s213 of the Constitution, the report squarely places the authorisation of the deployment on the President, as required by the Constitution. This is a rather interesting change of narratives because previous reports by the various officials seemingly absolved the President from the decision and the President himself seemed to suggest that the deployment was not directly authorised by him. Strangely, the commission failed to point out the contradiction and flag it as such.
Finding #3- ‘The death and injuries arose from the actions of the military and police’
This is an obvious yet welcome concession by the commission in that it has officially discredited the views of the ZDF and some sectors of government that previously tried to blame the MDC for the loss of life and injuries sustained. What will become clear however, is that despite this finding, the remedial action suggested hardly corresponds to the gravity of the actions of the army. This is a fatal move by the commission which will make it harder to sanitise and accept its findings.
The recommendations are perhaps the most disappointing part of the report. Most of the recommendations are compensatory in nature or add nothing new to the existing terrain. The commission for instance, suggests that parties adhere to the electoral code, but this is already a requirement. The commission further suggests that parties should be registered, which is already a requirement.
How this will help prevent the ZDF from shooting protesters, however, is not only a mystery, but is seemingly outlandish. The right to protest is enjoyed by all in terms of the Constitution and where some people abuse it or exceed the boundaries set by law, then those individuals and they alone should be held accountable, with regards to the relevant laws. This recommendation fails to deal with the core concern which is the conduct of the army — not the parties. Another interesting recommendation is that there should be tougher laws for hate speech and incitement.
The commission in my view, crosses over into dangerous terrain where it suggests further tightening of freedom of expression and instead of advocating for a society based on democracy and openness, it suggests that the problem is that there is an unchecked heightened enjoyment of freedom of speech. The last recommendation is that the army and police should identify the culprits ‘for internal investigations’.
This is an inappropriate recommendation. The conduct of the ZDF on August 1 is not a matter for internal investigation, it is a criminal matter that should be dealt with as such. Section 208(2) of the Constitution is explicitly clear that members if the security services must respect fundamental rights in the Constitution which extends to the right to life for which no derogation is permissible except as set out in the Constitution. On August 1, members of the ZDF violated this constitutional obligation and transcended into the realm of criminality simultaneously.
Mistakes of Law
It is regrettable that while the commission readily admitted that it was a fact -finding body, it ventured into legal questions it was hardly equipped to answer. While three members of the commission were legal minds, the rest of the body, including its chair were not legally inclined. The result is evidentially a confusion of laws and applicable principles. For instance, the commission tries to read s37 of Posa and s213 of the Constitution together.
This cannot be the case because the former allows the Minister of Defence to deploy the army, while s213 permits only the President to do so. One cannot reconcile the two without reaching irrational conclusions. There were several mistakes of law in the report – chief of which is assuming constitutional validity of Posa’s deployment requirement.
The commission further neglected to engage the constitutional right to protest fully, instead preferring to rely on sections of Posa, which have since been declared unconstitutional. Where a law contradicts the Constitution, the Constitution prevails to the extent of the inconsistency. The commission failed to properly interpret the law in this regard and effectively breathed life into unconstitutional laws while indirectly undermining the Constitution. The commission should not have ventured into questions of law, at least without engaging legal specialists to assist with these. In any event, questions of law are best reserved for courts of law.
As always, I feel very strongly about the publishing of personal details. The report contains in some cases, ID numbers, cell numbers, addresses and the ages of victims of the August 1 incident. This is regrettable for various issues and should have been avoided. I also struggled to understand why the commission found that the beating of civilians using whips and guns was ‘disproportionate’ as opposed to being unlawful.
Disproportionate suggests that it should have been done but in a measure that matched the threat. The recommendations fail to deal with this aspect clearly apart from asking the police and army to review their policies. They should, at the very least, have called for the culprits to face a competent tribunal or court on grounds of assault since the injuries referred to in the Report were quite extensive and severe.
Lastly, the commission noted that two individuals were recorded as having suffered stab wounds, but these were later changed to gun wounds. I am no doctor, but the little I know about medicine is that a gun shoot and a stab wound are grossly dissimilar. How it was possible to have changed this is something the commission should have probed further: who was instructing the doctors to wrongly classify deaths and what was their motive?
These are serious questions one hoped the commission would have engaged. For now, we wait to see what President Emmerson Mnangagwa does with these findings. Ultimately, how he handles the recommendations and report as a whole, will speak to his statesmanship and resolve to remedy injustices. If he fails to implement the recommendations, then Zimbabwe is certainly not open for business…just saying!
Paul Kaseke is a legal advisor and former law lecturer with the Wits Law School & Pearson Institute of Higher Education. He writes in his personal capacity.