Zimbabwe high court deals blow to Constantino Chiwenga over election violence

11 November 2018 - 00:00 By RAY NDLOVU

High court judge David Mangota has ruled that Vice-President Constantino Chiwenga was responsible for the deployment of the army in the streets of Harare on August 1, which resulted in the deaths of at least six civilians.
Mangota said the order of events prior to and during the post-election violence was "as clear as night follows day" and said it was not President Emmerson Mnangagwa who was responsible.
The ruling is likely to chip away at the political clout of Chiwenga, who just a year ago was riding a wave of popularity for having toppled former ruler Robert Mugabe.
Chiwenga was minister of defence when clashes between the army and opposition supporters protesting at the election results broke out in the capital.
But in recent weeks, his influence and power have been waning as Mnangagwa tightens his grip on power.
The president recently issued a statutory instrument in which he relieved his deputy of control of the army.
Chiwenga was instead put in charge of "procurement and research".
The Zanu-PF Youth League also said at its assembly this month that it backed Mnangagwa to stand for re-election in the 2023 elections.
Political observers see the endorsement of Mnangagwa for a second term as a dig at Chiwenga, who has ambitions for high office and had been tipped as the favourite to succeed Mnangagwa.
Legal experts said Mangota's ruling could be used as the basis of the work being done by the commission of inquiry into post-election violence, which is led by former South African president Kgalema Motlanthe.
"If not challenged, it is now a fact and the judgment can be used by the commission. It is not good for the former army general," said a Harare lawyer who asked not to be named.
Another lawyer said that because Chiwenga had not opposed the application when it was brought before the courts, there was no way he could challenge the ruling now.
The Motlanthe commission on Friday finished conducting its hearings in the border town of Mutare. It has so far collated evidence from members of the public in Harare and Bulawayo.
It is expected to call officials in the security sector to testify later this month.
Mangota's ruling was in response to an application by Allison Charles, the sister of one of the victims of the violence, Gavin Dean Charles, and an NGO, the Counselling Services Unit. They were challenging Mnangagwa's appointment of a commission of inquiry into the killings.
They argued that Mnangagwa was conflicted because he had authorised the army's deployment and would therefore appoint commission members who were likely to be biased in his favour.
In addition, they said that when Mnangagwa announced the appointment of the inquiry on August 29, he did so without prior consultation with the cabinet, as is required by the constitution.
In the judgment, Mangota said there was a subsection of the constitution that provided for exceptions to this consultation requirement.
"Mnangagwa's announcement was also merely a statement of intent, and the commission chaired by . Motlanthe was only legally appointed on September 14, three days after the swearing in of the cabinet," Mangota said.
The judge said the events of August 1 unfolded thus: A commotion started in the central business district of Harare;
The police commanding officer of the district assessed the magnitude of the commotion in relation to the number of officers he had at his disposal;
He approached the police commissioner-general, and told him what was happening;
The police commissioner-general in turn approached the minister under whose supervision he operates;
The minister spoke to his counterpart in the defence ministry, Chiwenga; and
Chiwenga then deployed members of the defence force who operated under the command of the regulating authority of the district of Harare. "The above-stated matters expose the incorrectness of the applicants' syllogism," Mangota said in the ruling.
"They proceed on the premise that, because the constitution confers power on the president to deploy, he deployed members of the defence forces on August 1.
"The correct position of the matter is that he did not. Because the president did not deploy, he is not conflicted as the applicants would have the court believe," he said.
The judge said the legality of the deployment of the soldiers was open to challenge.
"It is a matter for argument for another day for someone to suggest that the police commissioner-general and the minister under whose supervision he operates violated section 214(a) of the constitution," he said.

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