High Court Hearing this Afternoon for Challenge to Stop Commission of Inquiry

High Court Hearing this Afternoon for Challenge to Stop Commission of Inquiry into Post-Election Violence

Kgalema Motlanthe

Charles & the Counselling Services Unit v the President of Zimbabwe and 10 Others

A preliminary application for this case to be dealt with on an urgent basis has been set down for hearing today.

The application will be heard by Justice Mangota this afternoon, Wednesday 10th October, at the High Court, Harare, starting at 3 pm. 

As this is a chamber application, the judge may deal with it in chambers [i.e. in his office], in which case only the parties and their legal practitioners will be able to attend.  In view of the importance of the case, however, the judge may decide to hear it in open court – if he does so, interested members of the public will be able to attend.

If Justice Mangota grants this application, the case will jump the queue of ordinary cases awaiting hearing.  If not, it will have to take its turn on the ordinary court roll, and that could mean its hearing will be delayed for weeks – possibly until after the Commission delivers its report, which it is obliged to do by 19th December 2018.

Reminder: What the Case is About

The Commission of Inquiry into Post-Election Violence was established by a Presidential proclamation gazetted on 14th September [link].  The seven Commissioners were sworn in on the 19th September.  It is due to start hearing evidence next week, and must submit its report to the President by 19th December.

On the same day the proclamation establishing the Commission was published in the Gazette, an application was filed in the High Court to set aside its establishment.  The applicants’ papers in the case [Charles & the Counselling Services Unit v the President of Zimbabwe and 10 Others] can be viewed on the Veritas website [link].  See also Veritas’ Commissions Watch bulletin of 25th September [link].

The applicants challenge the Commission on several grounds:

  • The President established the Commission without seeking the advice of the Cabinet [This ground is based on the fact that the President announced the Commission’s establishment before he had appointed a Cabinet].
  • The President established the Commission without publishing a proclamation as required by the Commissions of Inquiry Act [Now of course the President has done so].
  • The President could not appoint a Commission to inquire into his own conduct [This challenge arises because, under section 213 of the Constitution, the President is responsible for deploying the Defence Forces and therefore, the applicants assume, he ordered their deployment on the 1st August].
  • Two of the Commissioners, in public statements, have allegedly shown that they are likely to be biased or that they have prejudged the subject-matter of the Commission’s inquiry.
  • The Commission’s terms of reference presuppose that it was justifiable for armed soldiers to be present on the streets of Harare on the 1st August.

Whether the High Court will rule in the applicants’ favour – indeed whether the court will hear the matter at all before the Commission delivers its report – remains to be seen.

 

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied

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