Omission by Commission: The Motlanthe Hearings and President Mnangagwa’s Institutional Deflectionism

When Emmerson Mnanagwa took over as Zimbabwean president, he carried himself with the air a consummate democrat, demystifying the presidency through increased access and vaunted intolerance to corruption. From frequent video messages to random public appearances, President Mnangagwa sold himself as more grounded than his grandiose predecessor. A year later, he is far more reclusive and reticent. A moribund and fast shrinking economy has robbed Mnangagwa of his initial swagger, whilst dashing the hopes that even political moderates retained in the ‘new dispensation.’ Instead, the nation is gripped with anxiety regarding the outcome of a public inquiry into the shootings of 1 August 2018. I have written concerning the High Court judgment which curiously absolved President of any blame in the shootings. In this article, I deal with commissions of inquiry in the context of the Mnangagwa presidency. I conclude that it is another instantiation of President Mnangagwa’s emphasis on appearance rather than substance or form rather than functionality. His approach to major questions is usually a pivot to institutional utility to countenance functional futility. When viewed from this prism of social subterfuge, the appointment, membership and terms of the commission of inquiry become easier to comprehend.

Early into his presidency, President Mnangagwa faced uncomfortable questions about the massacres in Matabaleland and Midlands in the 80’s at the World Economic Forum in Davos. In response, he pointed to the establishment of the National Peace and Reconciliation Commission (NPRC).  Needless to say, there has been no discernible work by that institution. In respect of corruption, he threatened to expose people who had been externalizing foreign currency and later published a list of the guilty parties. No action was taken against them. When asked to explain the absence of criminal convictions following these revelations, he proclaimed that he was setting up a crack unit of anti-corruption prosecutors in the President’s Office. The unit is yet to claim its first conviction. At each turn, President Mnangagwa deflects to an institutional mechanism to avoid, rather than facilitate, public accountability. That is not to say he has not been more proactive in some instances, such as when he bypassed such niceties and publicly took credit for  engineering the release of Tendai Biti on bail. This makes his resort to the substantive utility of institutions less credible, revealing it as a political calculation meant to deflect unwanted attention from his person and office.

Thus, when questions about the events of 1 August 2018 arose, President Mnangagwa predictably resorted to institutional deflection: the establishment of a commission of inquiry. This not only freed him from uncomfortable questions ahead of his inauguration, but also buttressed his legitimacy by creating the veneer of public accountability. However, the commission could not have been established as a bona fide fact finding mission. It is inconceivable that there is any person with more intimate knowledge of the occurrences on 1 August 2018 than Emmerson Dambudzo Mnangangwa. All uniformed forces report to him and he has a fully-fledged intelligence service. He is the only one aware of whether he, as Commander-in-Chief, deployed the troops on 1 August 2018 and whether he authorized the use of lethal force. There is no need for an investigative mission to establish facts already within his knowledge nor was that a necessary step before prosecutions and/or court martials could be conducted. It merely deflected from the ordinary process of criminal justice. 

Apropos, this commission was meant to create the appearance of respect for justice through a platform where people could ventilate their feelings without necessarily creating justiciable outcomes. Commissions of inquiry have the capacity to legitimize the state both internally and externally by establishing an alternate ‘rationale and scientific administrative discourse.’ Scholar Peta Sheriff explains that commissions of inquiry are ‘part of the legitimization function of the State such that their contribution to policy formulation is less important than… their contribution toward social harmony.’  This is achieved, by her account, through the participatory aspect of commissions, in which form is more important than content. It assuages actors by ‘replenishing’ arguments in the national discourse and this explains the elation by opposition supporters at the testimonies rendered by their leaders (also possibly the deceptive joy from the illusion of inclusion). In spite of their vaunted misgivings about the commission, several opposition leaders still elected to present at times lengthy submissions before it, evincing their belief that the potency and pungency of their accounts would be given sufficient consideration by a commission whose legitimacy they continued to question.

This was not the first time that the opposition subjected itself to processes it sought to undermine. They called the legitimacy of ZEC and the Constitutional Court into question before subjecting themselves to both and later questioning the respective outcomes. They seem trapped by the allure of participation without a strategy to deal with the attendant process of legitimation. The broadly participatory nature of the commission buttressed its legitimacy and it is not surprising that international actors like British Prime Minister Theresa May commended its establishment. This was the true purpose of the Commission: to create the impression of commitment to justice and the rule of law to local and international actors. This is also evident from the leadership of the commission. The chairperson of the commission, Mr Kgalema Motlanthe, was one of the three mediators in the period leading up to the inclusive government. During my time as part of the Civil Society Monitoring Mechanism (CISOMM), one of the most frequent complaints received from the MDC was how Mr Motlanthe had distinguished himself as being worse than the openly ZANU PF aligned Thabo Mbeki. The choice of Mr Motlanthe as chair, and not say Ian Khama of Botswana, gives credence to the view that the commission was never meant to be a rigorous fact finding mission which would hold the government or presidency to account. 

The State is now prevaricating regarding the way forward. The Presidential Spokesperson indicated that it is up to the President to decide whether the findings will be made public. Professor Magaisa, for a number of reasons, disagrees. Chief among his reasons is the constitutional right to access information. I am not convinced by Professor Magaisa on this point. This is a case in which the political and moral reasons to release the commission’s findings are stronger than the legal ones. The High Court judgment in Mushayakarara v. Chidyausiku and the Supreme Court finding in ZLHR vs President of the Republic of Zimbabwe both support the assertion by Mr George Charamba: there is very limited legal scope to compel the president in respect of commissions of inquiry. Further, the right to access information under section 62 of the Constitution empowers the legislature to give effect to that right. Congruent with the finding of the Constitutional Court in Jessie Majome vs ZBC, recourse would have to be to the statute rather that the constitutional provision unless the statute itself is being challenged. In other words, the remedy would have to be through AIPPA as opposed to a stand-alone constitutional evaluation of the President’s decision. More importantly, the section 62 right is internally restricted by the state interests of defence, public security and professional confidentiality. This is in addition to the general limitation clause in section 86. This makes the constitutional argument highly tenuous and leaves President Mnangagwa well within his rights to exercise his presidential discretion.

I do agree with Professor Magaisa to the extent that a version of the report is likely to be released. Whether in its authentic form, redacted or otherwise edited, it will likely be released only after it is made clear that there is no legal obligation to do so, thus increasing the political dividend for President Mnangagwa. That may well be the end of the matter. Unless the commission was established as a way to get rid of highly placed allies or to justify prosecution of members of the opposition, its functionality may have reached its zenith during the public hearings and its nadir will probably be publication. Just as the list of those who externalized foreign currency or the establishment of the NPRC, this will be latest case of going through the motions without any effective follow through; underscoring the Mnangagwa presidency as one of institutional deflectionism to prop up form and appearances at the expense of  functionality and substance. It is a reversal of the dictum from R v. Sussex, with justice only seeming, but seldom seen, to be done. 

HIGH COURT WRONGLY ABSOLVES PRESIDENT MNANGAGWA IN POST-ELECTION SHOOTINGS

Honourable Justice David Mangota

This blogpost explores the ruling by Justice Mangota concerning President Emmerson Mnangagwa's appointment of a commission of inquiry to investigate the post-election violence of 1 August 2018. It highlights the limits of presuming human and governmental compliance with legal strictures and the attendant pitfalls of using law as a basis for factual claims. 

1. THE APPLICATION

The sister to one of the victims of the shootings on 1 August 2018 approached the High Court together with a non-governmental organization, the Counselling Services Unit. They challenged the decision by the President to appoint a commission of inquiry without cabinet consultation as required by sections 88(2) and 110(6) of the Constitution. They had a myriad of other reasons for approaching the court. They asserted that the President was conflicted as the military’s deploying authority, thus undermining his ability to appoint a commission to investigation his own alleged actions. They claimed that the failure to report the deployment to parliament was contrary to section 214 of the Constitution. They also argued against the appointment of Professors Charity Manyeruke and Lovemore Madhuku due to their alleged pro-government bias.

2. ORDER SOUGHT

The two applicants asked the High Court to set aside the decision to establish the commission of inquiry and instead, instruct the Zimbabwe Human Rights Commission (ZHRC) or the National Peace and Reconciliation Commission (NPRC) to conduct the investigations or appoint the commission of inquiry. They also asked that the ZHRC or the NPRC formulate the commission’s terms of reference, whilst insisting that their own terms of reference replace those of the commission. Further, they sought the removal of Professors Charity Manyeruke and Lovemore Madhuku from the commission.

President Mnangagwa with Commissioners Manyeruke and Madhuku 

3. RESPONSE

The government lawyers raised a preliminary point. They drew attention to the distinction between the decision to constitute the commission and the legal process for its establishment. The application only impugned the decision to establish the commission and not the legal actions for its creation. According to the government lawyers, this meant the commission retained its legal status which remained unchallenged. In fact, they argued that the founding affidavit had been commissioned prior to the establishment of the commission, rendering the application premature. 

They also raised substantive arguments. They asserted that the President is exempt from consulting cabinet when making appointments required by legislation in accordance with section 110(2)(d) of the Constitution. They maintained that the President was not conflicted since the commission’s terms of reference went beyond the single issue of deployment of troops. They also argued that there was no basis in law for the ZHRC or the NPRC to appoint a commission of inquiry or act as such.

4. RULING

Justice David Mangota agreed with the government’s lawyers and ruled that the President's decision cannot be impugned without addressing the process which cloaked the decision with legality. The ruling is closely related to the case in which Romeo Zibani sought to stop the holding of interviews for a new Chief Justice because of the executive’s intention to amend the Constitution. The Supreme Court ruled that mere intention is insufficient basis for ignoring constitutional imperatives. Similarly, the intention of the President to set up a commission is insufficient basis to claim constitutional abrogation. At worst, it could amount to an intention to abrogate. This approximates to the general principle of criminal law that intention alone is insufficient in securing conviction. Thus, the failure to address the legal actions pursuant to the President’s intention rendered the application inadequate for the relief sought.  

5. STATEMENTS AFTER RULING

Having upheld the preliminary point, Justice Mangota proceeded to “sing with applicants on the constitutionality or otherwise of the first respondent’s conduct” for “academic purposes.” In this part of the judgment, he ruled that the President’s actions were constitutionally valid because appointments to commissions of inquiry are exempt from cabinet consultation under section 110(2)(d) of the Constitution. The Court restated that there is no legal basis for the ZHRC or NPRC to appoint a commission of inquiry or act as such, something which the applicants had since conceded. The Court also found that there was no evidence of the alleged bias of Professors Madhuku and Manyeruke, arguing that Professor Madhuku’s participation in the 2018 elections was evidence of his opposition to rather, than common purpose with, the current government.  

Downtown Harare, 1 August 2018

6. PRESIDENT’S INVOLVEMENT IN THE 1 AUGUST SHOOTINGS

In a dramatic twist, Justice Mangota then absolved President Mnangagwa of any wrongdoing in the tragic events of 1 August 2018. He ruled that the President was not involved in the deployment of troops and was therefore not conflicted in his appointment of the commission of inquiry. The honourable judge based his reasoning on the media report of Obey Manayiti published in the Newsday of 2 August 2018. The report was attached to the application as an annexure. It referred to a statement by the police indicating that the Commissioner General of Police had, on 1 August 2018, invoked section 37(1) of the Public Order and Security Act (POSA) to request for assistance from the defence forces. That section of POSA allows the Minister of Home Affairs to request the Minister responsible for defence to authorize the defence forces to assist the police. On that basis, Justice Mangota concluded that the Minister of Home Affairs had “…in turn, approached his counterpart in the Ministry of Defence” and “he (the Minister of Defence) in turn, dispatched members of the defence forces…”

Vice President Chiwenga and President Mnangagwa

This finding is extraordinary in several ways. It is accepted that courts can take judicial notice of a notorious fact or assert a claim averred which is not in dispute. However, this is markedly different from making a highly controvertible finding of fact against an individual who is not before the court based on a media report. Without any witness testimony or reference to an averment from the parties, the judge used a media report to extrapolate findings of fact from provisions of law. This is breathtaking, even more since it was done using the same non sequitur which the judge would go on to deplore: “The above stated matters expose the incorrectness of the applicants’ syllogism. They proceeded on the premise that, because the constitution confers power on the President to deploy, he deployed members of the defence forces on 1 August, 2018. The correct position is that he did not.” 

This is the same syllogism used to counter the one advanced by the applicants. They share the presumption of governmental action in accordance with law, and mistakenly deduce factual claims from legal provisions. As correctly noted by the honourable judge, the law is a poor indicator of human behaviour and is hardly a basis for making findings of fact. Only a slight alteration to the wording of Justice Mangota’s dictum is needed to capture the dissonance immanent in his reasoning. He “proceeded on the premise that, because POSA confers power on the Minister of Defence to deploy, he deployed members of the defence forces on 1 August, 2018.” The correct position is that we do not know. The testimony by the Commander of the Defence Forces (CDF) before the commission of inquiry casts further doubt over this finding of the court. The CDF indicated that the Vice President had written to the President in respect of the demonstrations on 1 August 2018, but he is not aware of the response from the President if any.  

Commission of Inquiry into the Post-Election Violence during one of its hearings

7. CONCLUSION

The ruling was delivered when the commission of inquiry was already conducting  its investigations. The chairperson of the commission had to play down the effect of the ruling on the commission’s work whilst the main opposition called for the arrest of Vice President Constantino Chiwenga who was, at the material time, the officer responsible for the Ministry of Defence. There is little doubt that the ruling has been disruptive.  This is highly undesirable, especially to the extent that it undercuts the work of the commission. Since the preliminary point had already been upheld, there was hardly any need to engage in an “academic exercise” which delves into matters for which an independent commission of inquiry was constituted. In so doing, the Court exonerated the President whilst effectively indicting an individual without affording them the right to be heard. This creates the impression of a judiciary which is fervent in its desire to absolve the President of any wrong doing, even in the absence of compelling evidence and ahead of independently established investigatory processes.