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.
