Commissions Watch 27th Nov 2018 [Commission of Inquiry into Post-Election Violence of 1st August]
Harare.
Dear Sir,
Submissions to Commission
On behalf of my organisation, Firinne Trust (known as Veritas), I should like to make
submissions on Zimbabwean law relating to the subject-matter of the Commission’s inquiry.
Veritas is a non-governmental organisation registered as a trust. It publishes information on
legal issues, including legislation and the proceedings of Parliament, and works for
constitutionalism and the advancement of human rights. It has MOUs with Parliament and the
Zimbabwe Human Rights Commission and has a distinguished Board of Trustees.
The submissions I wish to make are the following:
1. The Commission’s Terms of Reference
The Commission’s terms of reference set out in Proclamation 6 of 2018 do not specify one
issue which many Zimbabweans regard as the most important of all: who ordered or
authorised soldiers onto the streets of Harare on the 1st August? I shall make submissions
on that issue later in this letter, but here I simply point out that you can deal with it under
paragraph (vii) of your current terms of reference, which empowers you “to investigate into
any other matter which the Commission of Inquiry may deem appropriate and relevant to
the inquiry.”
2. The Sanctity of Life under Zimbabwean Law
In Zimbabwe, unlike South Africa and most other countries, the right to life is almost
completely sacrosanct. Although courts are allowed to impose the death sentence on
convicted murderers (section 48 of the Constitution), that is the only circumstance in which
persons can legally be killed. Section 86(3)(a) of the Constitution makes this clear: no law
may limit the right to life, and no person may violate it.
What this means is that even if the soldiers were trying to suppress a riot, perhaps even if
they were trying to defend themselves, they had no right to kill people.
3. Were the Police Unable to Control the Disturbances?
The Police have ample powers under section 29(3) of the Public Order and Security Act
[Chapter 11:17] to control riots and are allowed to use such force as may be necessary for
the purpose, though the force must be moderate and proportionate to the circumstances
and cannot extend to killing.
Not only do the Police have ample legal powers to control riots, but they have the physical
power as well, from well-equipped anti-riot squads to mobile water-cannons.
4. Who Ordered or Authorised Soldiers to be on the Streets of Harare?
Section 37 of the Public Order and Security Act empowers the Minister of Defence, at the
request of the Minister of Home Affairs and the Commissioner-General of Police, to
authorise the Defence Forces to assist the Police in suppressing a civil commotion or
disturbance. This provision is unconstitutional however because section 213(1) of the
Constitution states that only the President has power to authorise the deployment of the
Defence Forces or determine their operational use. The Constitution as the supreme law
overrides section 37 of the Public Order and Security Act and renders it void.