HIGH Court Judge Justice Joseph Mafusire on Friday 15 February 2019
reserved judgment on an application filed by Concillia Chinanzvavana,
a victim and survivor of torture, seeking to extend the lifespan of
the National Peace and Reconciliation Commission (NPRC), so that it
operates for an effective 10 years envisaged in the Constitution.
Justice Mafusire, who presided over the hearing of Chinanzvavana’s
application at Masvingo High Court said he will notify the parties
involved in the matter once he is ready to hand down his ruling, which
will be delivered in Motion Court.
Chinanzvavana’s lawyer Tendai Biti of Zimbabwe Lawyers for Human
Rights, urged Justice Mafusire to stop attempts by government to use
unusual means to shorten the lifespan of the NPRC.
In her application, Chinanzvavana, who is a legislator for the
MDC-Alliance party, argued that delays in promulgating an Act of
Parliament operationalising the NPRC has effectively cut short the
Commission’s lifespan by five years.
The Commission is envisaged to have started being operational on 18
August 2013 when former President Robert Mugabe was sworn into office.
That effectively meant that the life of any commission to be
established would function to 19 August 2023, a period of 10 years.
However, for the Commission to become operational, it had to be
legislated in an Act of Parliament, which would provide minute details
regarding its working operations.
The Act of Parliament only came into effect on 5 January 2018.
Hence Chinanzvavana argued that effectively this means that by the
government’s own omissions and commissions, five years of the 10 years
envisaged in section 251(1) of the Constitution has been taken away
effectively leaving the period of effective operation and existence of
the commission being a mere five years.
In effect, Chinanzvavana contended that this means “through deliberate
omission or through negligence”, the Minister of Justice, Legal and
Parliamentary Affairs Hon. Ziyambi Ziyambi and Vice-President Kembo
Mohadi, and their ZANU-PF party have improperly amended section 251(1)
of the Constitution by effectively ensuring that the life of the
Commission would be five years and not 10 years.
Hon. Ziyambi is cited as the first respondent while Hon. Mohadi, who
is mandated with the administration of the NPRC, is cited as second
respondent. President Mnangagwa is cited as the third respondent and
the NPRC as the fourth respondent. The Attorney-General is cited as
the fifth respondent in the application.
Chinanzvavana wants the High Court to declare that notwithstanding the
provision of section 251(1), the NPRC must be deemed to have commenced
operations on 5 January 2018 and must therefore operate for a period
of 10 years to 5 January 2028.
In the alternative, she wants the High Court to issue a relief that
within six months of the order, Hon. Ziyambi and Hon. Mohadi be
compelled to amend the NPRC Act to insert a provision that makes it
clear that the life of the Commission would run from 5 January 2018 to
5 January 2028.
But Kenias Chimiti from the Attorney-General’s Office, who opposed the
application, described the order sought by Chinanzvavana as “an
incompetent order at law because the torture survivor cannot seek to
amend the Constitution through an order of court.”
However, Biti disagreed with Chimiti and insisted that failure to
allow the NPRC to enjoy its full course and its full life as envisaged
by the Constitution is a breach of the rights of many people to equal
protection of the law and to the enjoyment of all those functions that
the commission is supposed to carry out.
During the hearing, Justice Mafusire said Section 251 of the
Constitution is the most ambigious provision in the Constitution.