The Motlanthe Commission

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Mothlanthe Commission Final Report December 2018 (PDF)

Composition

The Zimbabwean president appointed the commission of inquiry that comprised of Motlanthe, British international law expert Rodney Dixon, former Commonwealth secretary-general Emeka Anyaoku from Nigeria and former chief of the Tanzania People’s Defence Forces Gen Davis Mwamunyange,Charity Manyeruke, Lovemore Madhuku and Vimbai Nyemba

Commission’s Terms of Reference

Essentially the Commission was charged with investigating the circumstances leading up to what the proclamation called the 1st of August, 2018, post-election violence and making suitable recommendations in the matter.^[2]

Commission’s Procedures, Powers and Duties

Procedure

Section 10 of the Commissions of Inquiry Act gave the Commissioners power to make rules “for their own guidance and the conduct and management of proceedings before them and the hours and times and places for their sittings. The rules do not have to be published; they can be informal.

The Commission had the same power as a magistrates court to summon witnesses and examine them on oath, and to require witnesses to produce documents in evidence. Witnesses who failed or refused to attend after being summoned, or who gave false evidence on oath, could be prosecuted. Generally witnesses were obliged to answer all questions put to them, though there were exceptions: for example, they were not be obliged to incriminate themselves [section 11(3) of the Commissions of Inquiry Act] and journalists were not to disclose their sources of information [section 61(2) of the Constitution].

Publicity

The proclamation allowed the Commission to hold its inquiry “both in public, or privately, as the exigencies of the Inquiry may determine.” It was hoped that, in the interests of transparency, all evidence was to be heard in public.

Deadline

The Commission was given three months to investigate the violence and deliver its written report and recommendations to the President. The deadline for the Commission to complete was 19 December 2018.

Publication of report

In his proclamation, the President directed that the Commission’s report would be availed at the Conclusion of the Inquiry”. It was hoped that the report was to be published in full as soon as the Commission had delivered it to the President.

Commission’s proposed schedule

On the 22nd September 2018 the Chairman of the Commission, Mr Motlanthe, announced that the Commission was to hold public hearings from mid-October. The Chairman invited institutions and members of the public to send in written submissions to reach the Commission’s secretariat before the 12th of October 2018.

Court Challenge to Commission

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 challenged the Commission on several grounds:

• The President established the Commission without seeking the advice of the Cabinet.
• The President established the Commission without publishing a proclamation as required by the Commissions of Inquiry Act.
• The President could not appoint a Commission to inquire into his own conduct [The applicants claimed that the challenge arose because, under section 213 of the Constitution, the President is responsible for deploying the Defence Forces and therefore, the applicants assumed, he ordered their deployment on the 1st August].
• Two of the Commissioners, in public statements, allegedly showed that they were 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.

High Court's Verdict

High Court judge Justice David Mangota ruled that the Commission of Inquiry set up by President Mnangagwa to investigate the August 1 post-election violence was legal.

Key Testimonies

Philip Valerio Sibanda

In November of 2018 Commander of the Zimbabwe Defence Forces testified before the commission of inquiry and stated that he received orders from Constantino Chiwenga to deploy soldiers, during the August 1 post election violence.^[3] Sibanda denied that the army shot and killed civilians during the August 1 protests.

I do not believe that any of the soldiers fired. Yes, they fired in the air, but I do not believe any could have aimed shots at the civilians. I have no reason to believe that one of the soldiers could have shot and killed those people

Jim Kunaka

Whilst giving testimony Kunaka said that one of the commissioners Charity Manyeruke was in no moral position to ask him questions as she was a member of ZANU -PF and contributed to the violence unleashed by the party against the opposition. Kunaka also said that the army should take responsibility over the people who died during the protests and that it was not logical of the commission to grill people like him when evidence showed that the army killed those civilians.

Paddington Japajapa

Japajapa claimed that he saw soldiers firing at 180 degrees into the crowd during the August 1 post-election riots. His claims were contrary to the army's claims that they shot into the air at 45 degrees.

Tendai Biti

Notice said that he appeared to testify on the commission under protest as he was not given the transcript of charges being leveled against him in advance. Biti also said that Emmerson Mnangagwa had no legal standing to set up the commission because he was in conflict of section 213 of the constitution. Biti also blamed the ZANU PF party for the violence that has haunted the nation since 1980. He stated that his party the MDC was a party of peace and excellence.

Nelson Chamisa

Chamisa distanced himself and his party from the August 1 shootings and violence.He said that his party was not the perpetrator but rather the victim of state violence.

History is replete with examples of how we were victims of violence," Chamisa told the commission of inquiry chaired by Kgalema Motlanthe, a former president of South Africa, denying claims that the six victims died after being attacked by MDC supporters.Violence has never been part of our DNA. My hands are clean. My conscience is very clear...my heart is pure. My mouth has never conspired to have a life lost on the basis of political violence. The paradox in all this is the allegations are being made by those whose hands are unclean.

Maynard Manyowa

Manyowa said some of the victims of August 1, 2018, post-election violence were shot while they were in the midst of a crowd with no soldiers in sight. Manyowa also said the protesters were chanting pro-Nelson Chamisa songs. Manyowa told the Kgalema Motlanthe Commission of Inquiry he did not see any soldiers when Ishmael Kumene, was fatally shot adjacent to the intersection of Cameron Street and Jason Moyo Avenue during protests MDC-Alliance supporters.^[4]

A group of protesters were running and as they were running, I noticed a guy wearing black and he took two steps and tumbled down.At the time he took those steps, there had been people behind him, but there were no soldiers at the time. I don’t know who shot the guy.There were gunshots going all over the directions. I think it could be people in the crowd who fired shots.Two gentlemen launched bricks towards the police water canon and hit the muzzle, when they hit the muzzle, the water canon immediately flooded, and that caused water leakages near the gate.A group of protesters besieged the Zimbabwe Electoral Commission’s Results Centre at the Rainbow Towers Hotel.They protested peacefully and co-operated with police. It was quite an incredible sight, watching protesters pave way for traffic, taking turns with the police to open and close the gate.Some 20 minutes later, they left. Some one hour later they returned, with new company. Armed with sticks and stones. This time cars were blocked, police were stoned. A few colleagues and I received a few bricks to the back as we fled.

References