Fidelis Munyoro Chief Court Reporter
A legal bid to stop the Government from exhuming victims of the post-independence internal conflict known as Gukurahundi and rebury them properly was dismissed by the High Court sitting in Bulawayo early this week as “presumptuous and premature”.
The Bulawayo applicant was advised to consult the National Peace and Reconciliation Commission which will, under its constitutional authority, lead any programme of exhumation and reburial. In any case President Mnangagwa in his submission to the court made it clear that any such programme would first have to be carefully laid out and then agreed to by all stakeholders before there were any exhumations.
Gukurahundi survivor, Charles Thomas, acting along with Zapu and Ibhetshu Likazulu, had sued President Mnangagwa, Home Affairs and Cultural Heritage Minister Kazembe Kazembe, political activist Jenni Williams and lobby group Matabeleland Collective, seeking an urgent interdict on any exhumations.
He based his application on part of a report in The Herald on a visit to Bulawayo in August this year by President Mnangagwa.
The President attended a meeting to which he was invited by traditional leaders, civic organisations and Bulawayo City Council to discuss a wide range of issues including the issuance of birth and death certificates to victims of Gukurahundi, exhumations and reburial of Gukurahundi victims and implementation of the Matabeleland Zambezi Water Project, among other matters of high importance.
After hearing arguments from counsel representing all parties, Bulawayo High Court judge Justice Martin Makonese threw out the application on the basis of the preliminary points without hearing argument on the merits. The judge ruled that the application by Thomas and his co-applicants was premature and improperly before the court as the applicants had no legal standing to bring such an action.
Justice Makonese also accepted President Mnangagwa’s contention that relief sought by the applicants was presumptuous as it alleged that Government sought to conduct unlawful exhumations when the President had not expressed any desire to operate outside the law.
The judge criticised the applicants for not taking time to in finding out how any exhumations would be carried out, considering the fact that the matter was emotive and sensitive.
Before taking legal action against the President and the State, Thomas should have sought the intervention of the National Peace and Reconciliation Commission, which was legally mandated to lead the envisaged process of exhumations and reburials in terms of the Constitution.
“The issue of Gukurahundi and exhumation has to be dealt with carefully and in full compliance of the law,” said Justice Makonese. “The manner in which the application was rushed to court without following the provisions of the Constitution is deeply concerning.” The court found that any allegations of an illegal act made against the President . . . “should not be made lightly, more so when it is shown that the alleged illegal acts have not occurred”.
Thomas conceded in his application that it was the National Peace and Reconciliation Commission that had a legal mandate to promote the programmes concerning peace and reconciliation in accordance with the Constitution.
To this end, the court wondered why Thomas chose to file his urgent application before engaging the commission when he was fully aware of the legal remedies available in the Constitution.
“For the foregoing reasons, it is my finding that the application is presumptuous and premature,” said Justice Makonese adding that there was need for the applicants to exhaust domestic remedies provided in the Constitution. He upheld all the objections raised against Thomas and his co-applicants and found no need to determine the matter on the merits. Through their lawyer, the applicants argued that they urgently approached the High Court because they were convinced the Government was going ahead with the reburials without consulting anyone.
President Mnangagwa was clear in his opposing argument that it was extremely presumptuous of the applicants to attribute illegal conduct against him in circumstances where there was no actual intention or where the President had not shown any desire to operate outside the law.
It was also the President’s submission that the article referred to by the applicants did not even state when the exhumations would commence.
The roll-out programme, as envisaged, would take into account the interest of stakeholders, argued the President. In addition, a draft policy framework would be laid out before any exhumations could even begin and once an agreement was reached with stakeholders on a final policy, only then could exhumations start.
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