ED's commission of inquiry faces fresh court challenge

HARARE - A Zimbabwean woman has approached the High Court seeking to stop the work of a commission of inquiry set up by President Emmerson Mnangagwa to investigate the August 1, 2018 killings, pending the outcome of another case in which she is demanding to have the appointment of some members nullified.

It’s the latest application by Alison Charles who lost her brother in the shootings that claimed the lives of at least six people.

It comes after Charles last month filed a High Court application challenging Mnangagwa’s decision to set up a seven-member commission led by former South African president Kgalema Motlanthe, claiming some of the members of that committee were biased.

Other members of the commission of inquiry include lawyer and National Constitutional Assembly president Lovemore Madhuku, Zanu PF loyalist and academic Charity Manyeruke, Law Society of Zimbabwe (LSZ)’s ex-president Vimbai Nyemba, Rodney Dixon of the United Kingdom, former Tanzanian chief of defence forces General Davis Mwamunyange and former Commonwealth secretary-general Chief Emeka Anyaoku of Nigeria.

In her main application filed last month, Charles demanded that Manyeruke and Madhuku’s appointments into the commission be nullified.

In her latest request, she is now demanding that the commission stops work, pending the outcome of her main application.

According to the application, Charles and the Counselling Services Unit are the applicants, while Mnangagwa, Motlanthe, the commission of inquiry, Justice minister Ziyambi Ziyambi, Home Affairs minister Cain Mathema, Defence minister Oppah Muchinguri-Kashiri, Commissioner-General of police Godwin Matanga, commander of the Defence Forces Valerio Sibanda, Attorney-General Prince Machaya, Madhuku, Manyeruke, ZHRC and NPRC, are cited as respondents.

“Pending the determination of the applicants’ court application in case number HC 8436/18 pending before this honourable court, applicants are granted the following relief: the first (Mnangagwa), second (Motlanthe) and third (commission of inquiry) respondents be and are hereby interdicted from operationalising and or acting in pursuance and in any manner to further the factual and or legal consequences of the impugned conduct of the first respondent as contended by the applicants under the said case number HC 8436/18, more particularly, but not limited, to operationalising and or furthering the ends of the commission of inquiry purportedly proclaimed and gazetted under Statutory Instrument 181 of 2018,” she said.

She said she should be allowed to approach the judge president within 10 days of the court order so that her main application can be heard as soon as may be directed by the judge president.

Charles said if the commission of inquiry is to proceed without her case determined, it would defeat the court process she initiated last month.

“Despite being served with the application on the 18th of September 2018, the first respondent on the 19th of September proceeded to issue a proclamation gazetted in the Government Gazette as Statutory Instrument 181 of 2018. He further proceeded to purportedly appoint, alternatively appointed and swear in the commissioners of the commission of inquiry.

“The conduct of the first respondent suggests that he is either contemptuous of my application, or this honourable court (or both),” she said.

The respondents have not yet responded to this application filed on Wednesday.

In her main application, Charles is seeking the commission to inquire on who deployed the military on the streets and residential areas, what was the legal basis for the deployment and the nature of assignment to be accomplished, who were the individual perpetrators and to what extent were their conduct in line with the laws of the country and United Nations guiding principles as well as identifying the chain of command, among other issues.

“On the 1st of August 2018, my brother, (Mr) Gavin Dean Charles also referred to as ‘Gavin’ was shot and killed by members of the Defence Forces of Zimbabwe in Harare. The cause of death indicated on the death certificate as ‘…gunshot injuries, hypovolemic shock’.

“Gavin was my immediate brother. He came after me. He stayed at my place of residence. On August 1, 2018, Gavin left home at about 08:00 hours in the morning, I did not know that would be the last time I would ever see him alive again. As siblings we were very close. We literally shared our lives together,” she said.

She further told the court that from media reports, she later learnt that five people were also killed on the same day. She said her brother was not a member of any political party and was not a registered voter in the 2018 elections.

She also said members of the ZRP refused to give the family access to the post mortem report notwithstanding their application.

“I respectfully contend that the decision by the first respondent (Mnangagwa) to appoint a commission of inquiry is reviewable on the basis that it is grossly unreasonable on at least two separate and or interlinking bases,” she said, adding that Mnangagwa’s decision violates the principle of legality and is irrational,” the court heard.

She said in terms of the law deployment of the army is only authorised by the president, but said such deployment on August 1, 2018 was not necessary.

“The deployment of members if the Zimbabwe Defence Forces under the command of the first respondent and sixth respondent (Sibanda) in unclear circumstances has led to the loss of life of Gavin, my beloved brother,” she said.

She also said Madhuku and Manyeruke were not fit to be part of the commission, claiming they were biased.

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