Tuesday, September 21, 2021
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Constitutional ambiguity stalls High Court’s NPRC judgement

Upenyu
Chaota

MASVINGO
Glaring ambiguities
in Section 51 of the Constitution has seen Masvingo High Court Judge, Justice
Joseph Mafusire reserving judgment in a case by which a Harare woman has
mounted a legal challenge against President Emmerson Mnangagwa for allegedly failing to operationalise the National Peace and Reconciliation Commission (NPRC) in time.

The NPRC was only operationalised through an Act of
Parliament in January 2018, with its mandate scheduled to end in 2023.
However, Concilia Chinanzvavana, who is a member of the
opposition MDC, filed a High Court application demanding that the 10-year
lifespan of the commission should end in 2028, and not in 2023 since government
did not operationalise it immediately after the adoption of the new Constitution
in 2013.
Chinanzvavana claims to be a torture survivor who
suffered enormous abuse in the hands of State security agents after the sham
2008 election results were announced.
She is being represented by Tendai Biti,
backed by the Zimbabwe Lawyers for Human Rights (ZLHR).
In their submissions in court today, February 15, the
applicants argued that by operationalising the commission in 2018, President
Mnangagwa was in violation of Section 51 (1) of the Constitution.
“There has been delays in operationalising the
commission for political reasons. Zanu PF did not want to be have their
atrocities investigated hence the reason it took them five years to set up the
commission.
“The commission should have been operationalised in
2013 and expire in 2023 according to the Constitution. So we want to know what
will happen to the other wasted five years. We submit that the 10-year lifespan
of the commission start in 2018 so that it will have time to look into the
atrocities committed against the applicant,” said Biti.
Mafusire said he found the section to be the most
ambiguous in the whole supreme law document.
“There is no such ambiguity on the provisions of other
commissions but this one has a problem. We are finding it difficult to
interpret. Judgement will be reserved and both parties will be notified once it
becomes available.
“We do not know whether the 10-year period is the
lifespan of the commission or it is the stipulated time frame within which the
commission has to be setup,” said Mafusire.
The section partly reads, “For a period of ten years
after the effective date, there is a commission to be known as the National
Peace and Reconciliation Commission…”
President Mnangagwa was represented by Kenias Chimiti
from the Attorney General’s office who had a torrid time presenting his defence.
Chimiti changed his statements and mumbled through his
responses each time the judge sought clarifications, drawing the ire of Biti
who scorned the AG’s office for sending an ‘inexperienced’ representative.
Mafusire also drew Chimiti’s attention to Section 324
which demands that constitutional obligations be performed diligently without
delay, and asked him if he did not feel that by spending five years without
operationalising the commission, government had not violated the law.

Again, Chimiti mumbled through his response.

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