The Motlanthe Commission

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The Motlanthe Commission was a seven-member commission set up to probe the post-election violence that left at least six people dead in Zimbabwe after the July 30, 2018 Elections In Zimbabwe. Former South African president Kgalema Motlanthe was appointed the Chairman of the commission by President Emmerson Mnangagwa on the 19th of September 2018.[1]


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 gives 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 “shall 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 would be holding 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.


References