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.
