Omission by Commission: The Motlanthe Hearings and President Mnangagwa’s Institutional Deflectionism

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By David T Hofisi

WHEN Emmerson Mnangagwa took over as Zimbabwe’s president, he carried himself with the air a consummate democrat, demystifying the presidency through increased access and vaunted intolerance to corruption. From frequent video messages to random public appearances, President Mnangagwa sold himself as more grounded than his grandiose predecessor.

A year later, he is far more reclusive and reticent. A moribund and fast shrinking economy has robbed Mnangagwa of his initial swagger, whilst dashing hopes that even political moderates retained in the ‘new dispensation.’ Instead, the nation is gripped with anxiety regarding the outcome of a public inquiry into the shootings of 1 August 2018.

I have written concerning the High Court judgment which curiously absolved President of any blame in the shootings. In this article, I deal with commissions of inquiry in the context of the Mnangagwa presidency. I conclude that it is another instantiation of President Mnangagwa’s emphasis on appearance rather than substance, or form rather than functionality. His approach to major questions is usually a pivot to institutional utility to countenance functional futility. When viewed from this prism of social subterfuge, the appointment, membership and terms of the commission of inquiry become easier to comprehend.

Early into his presidency, President Mnangagwa faced uncomfortable questions about the massacres in Matebaleland and Midlands in the 80’s at the World Economic Forum in Davos. In response, he pointed to the establishment of the National Peace and Reconciliation Commission (NPRC). Needless to say, there has been no discernible work by that institution.

In respect of corruption, he threatened to expose people who had been externalizing foreign currency and later published a list of the guilty parties. No action was taken against them. When asked to explain the absence of criminal convictions following these revelations, he proclaimed that he was setting up a crack unit of anti-corruption prosecutors in the President’s Office. The unit is yet to claim its first conviction.

At each turn, President Mnangagwa deflects to an institutional mechanism to avoid, rather than facilitate, public accountability. That is not to say he has not been more proactive in some instances, such as when he bypassed such niceties and publicly took credit for  engineering the release of Tendai Biti on bail. This makes his resort to the substantive utility of institutions less credible, revealing it as a political calculation meant to deflect unwanted attention from his person and office.

Thus, when questions about the events of 1 August 2018 arose, President Mnangagwa predictably resorted to institutional deflection: the establishment of a commission of inquiry. This not only freed him from uncomfortable questions ahead of his inauguration, but also buttressed his legitimacy by creating the veneer of public accountability.

However, the commission could not have been established as a bona fide fact-finding mission. It is inconceivable that there is any person with more intimate knowledge of the occurrences on 1 August 2018 than Emmerson Dambudzo Mnangangwa. All uniformed forces report to him and he has a fully-fledged intelligence service. He is the only one aware of whether he, as Commander-in-Chief, deployed the troops on 1 August 2018 and whether he authorized the use of lethal force.

There was no need for an investigative mission to establish facts already within his knowledge nor was that a necessary step before prosecutions and/or court martials could be conducted. It merely deflected from the ordinary process of criminal justice.

Apropos, this commission was meant to create the appearance of respect for justice through a platform where people could ventilate their feelings without necessarily creating justiciable outcomes. Commissions of inquiry have the capacity to legitimize the state both internally and externally by establishing an alternate ‘rationale and scientific administrative discourse.’

Scholar Peta Sheriff explains that commissions of inquiry are ‘part of the legitimization function of the State such that their contribution to policy formulation is less important than… their contribution toward social harmony.’  This is achieved, by her account, through the participatory aspect of commissions, in which form is more important than content. It assuages actors by ‘replenishing’ arguments in the national discourse and this explains the elation by opposition supporters at the testimonies rendered by their leaders (also possibly the deceptive joy from the illusion of inclusion).

In spite of their vaunted misgivings about the commission, several opposition leaders still elected to present at times lengthy submissions before it, evincing their belief that the potency and pungency of their accounts would be given sufficient consideration by a commission whose legitimacy they continued to question.

This was not the first time that the opposition subjected itself to processes it sought to undermine. They called the legitimacy of ZEC and the Constitutional Court into question before subjecting themselves to both and later questioning the respective outcomes. They seem trapped by the allure of participation without a strategy to deal with the attendant process of legitimation.

The broadly participatory nature of the commission buttressed its legitimacy and it is not surprising that international actors like British Prime Minister Theresa May commended its establishment. This was the true purpose of the Commission: to create the impression of commitment to justice and the rule of law to local and international actors. This is also evident from the leadership of the commission.

The chairperson of the commission, Mr Kgalema Motlanthe, was one of the three mediators in the period leading up to the inclusive government. During my time as part of the Civil Society Monitoring Mechanism (CISOMM), one of the most frequent complaints received from the MDC was how Mr Mothlanhe had distinguished himself as being worse than the openly ZANU PF-aligned Thabo Mbeki.

The choice of Mr Motlanthe as chair, and not say Ian Khama of Botswana, gives credence to the view that the commission was never meant to be a rigorous fact-finding mission which would hold the government or presidency to account.

The State is now prevaricating regarding the way forward. The Presidential Spokesperson indicated that it is up to the President to decide whether the findings will be made public. Professor Magaisa, for a number of reasons, disagrees. Chief among his reasons is the constitutional right to access information. I am not convinced by Professor Magaisa on this point. This is a case in which the political and moral reasons to release the commission’s findings are stronger than the legal ones.

The High Court judgment in Mushayakarara v. Chidyausiku and the Supreme Court finding in ZLHR vs President of the Republic of Zimbabwe both support the assertion by Mr George Charamba: there is very limited legal scope to compel the president in respect of commissions of inquiry. Further, the right to access information under section 62 of the Constitution empowers the legislature to give effect to that right.

Congruent with the finding of the Constitutional Court in Jessie Majome vs ZBC, recourse would have to be to the statute rather that the constitutional provision unless the statute itself is being challenged. In other words, the remedy would have to be through AIPPA as opposed to a stand-alone constitutional evaluation of the President’s decision.

More importantly, the section 62 right is internally restricted by the state interests of defence, public security and professional confidentiality. This is in addition to the general limitation clause in section 86. This makes the constitutional argument highly tenuous and leaves President Mnangagwa well within his rights to exercise his presidential discretion.

I do agree with Professor Magaisa to the extent that a version of the report is likely to be released. Whether in its authentic form, redacted or otherwise edited, it will likely be released only after it is made clear that there is no legal obligation to do so, thus increasing the political dividend for President Mnangagwa. That may well be the end of the matter.

Unless the commission was established as a way to get rid of highly placed allies or to justify prosecution of members of the opposition, its functionality may have reached its zenith during the public hearings and its nadir will probably be publication.

Just as the list of those who externalised foreign currency or the establishment of the NPRC, this will be latest case of going through the motions without any effective follow through; underscoring the Mnangagwa presidency as one of institutional deflectionism to prop up form and appearances at the expense of functionality and substance. It is a reversal of the dictum from R v. Sussex, with justice only seeming, but seldom seen, to be done.

David T Hofisi is a human rights lawyer and doctoral candidate.