MATHONSI J: This is an application brought on a certificate
of urgency and the Applicant seeks a provisional order in the following terms:
''TERMS OF THE FINAL
ORDER SOUGHT
That you show cause to this
Honourable Court why a final order should not be made in the following terms:
1. The 1st
Respondent, FALLEN HEROES TRUST and 2nd Respondent, GEORGE
RUTANHIRE be and are hereby interdicted from conducting any exhumation of
the remains of any persons who died or disappeared during the pre-independence
or post –independence military or political hostilities in Zimbabwe, outside the
mandate, framework or authority of a process set up and agreed upon by the 3rd
to 8th Respondents and involving all stakeholders and interested
parties.
2. The 3rd and 4th
Respondents, co-ministers of Home Affairs, be and are hereby directed to ensure
there are no unauthorised exhumations of the remains of any persons who died
during the pre-independence or post – independence military or political
hostilities in Zimbabwe outside the mandate, framework or authority of a
process set up and agreed upon by the 3rd to 8th
Respondents and involving all stake –holders and interested parties.
3. The 5th, 6th and 7th
Respondents co-ministers of State: National Healing, Reconciliation and Integration,
be and are hereby directed to come up with a legal process, after consultation
with all stakeholders and interested parties countrywide, which shall be the
framework for any exhumation of the remains or persons who died or disappeared
during the pre-independence or post - independence military or political
hostilities in Zimbabwe.
4. The 8th Respondent, Jomic, be and
is hereby directed to oversee and ensure that the 1st to 7th
Respondents comply with the terms of this order.
5. The Respondents, jointly and severally, the
one paying the other to be absolved, be and are hereby ordered to pay the costs
of suit.
INTERIM RELIEF GRANTED
Pending the finalisation of
this matter, Applicant be and is hereby granted the following relief:
1. The 1st Respondent, FALLEN HEROES
TRUST and its members, and the 2nd Respondent, GEORGE RUTANHIRE, be
and are hereby ordered and directed, jointly and severally, to forthwith stop
and desist from conducting any exhumation of the remains of persons found at a
disused mine shaft in Mount Darwin, Mashonaland Central and anywhere else in Zimbabwe.
2. The 3rd and 4th
Respondent, Co-Ministers of Home Affairs, be and are hereby directed to ensure
that the 1st and 2nd Respondents forthwith comply with
the terms of this interim order.''
When this application
was initially placed before me and upon realising that it raised issues of
national interest affecting a lot of people including relatives of those who
died and were buried during the war of independence and disturbances which may
have occurred after independence, I directed that it be served upon all the
Respondents together with a notice of set down to enable them to respond to the
application.
At the commencement of
hearing Mr Nkomo appearing for the Applicant submitted certificates of service
of both the application and the notice of set down upon all the 8
Respondents. Despite such services, none
of the Respondents attended the hearing.
I therefore have not had the benefit of hearing their side of the story.
The Applicant is an
association of veterans of the war of liberation of Zimbabwe who fought the war
under the Zimbabwe People's Revolutionary Army (ZPRA), the military wing of the
Zimbabwe African People's Union (ZAPU).
It is registered as such in terms of the Private Voluntary Organisations
Act, Chapter 17:05. In terms of its
constitution which was registered with the Register of Deeds on 15 September
2009, one of its objectives is;
''to rehabilitate, maintain
and propitiate the war time graves, shrines and monuments as a legacy of the
liberation struggle.''
In his founding
affidavit, Lazarus Ncube, the chairman of the Applicant alleged that the 1st
and 2nd Respondents have been involved in a chaotic and
non-scientific exhumation of the remains of people who died and were thrown
into a disused mineshaft at Chibondo village in Mount Drwin. It is further alleged that no forensic
investigations and anthropological analysis of the remains has been made as no
experts have been involved in the process.
It is the Applicant's
case that the exhumations do not meet the minimum standard required by
international instruments for such an undertaking and reliance is placed on the
United Nations Model Protocol on the Forensic Investigation of Deaths suspected
to have been caused by a Human Rights Violation. When all this has been happening the 3rd
and 4th Respondents whose ministry is charged with superintending
national monuments have stood akimbo remaining disinterested on lookers even as
1st and 2nd Respondents have no lawful authority to
undertake the exhumation exercise.
According to the
Applicant, the organ on national healing reconciliation and integration and the
8th Respondent, both established in terms of the Global Political
Agreement which brought about the government of national unity have not shown
any interest whatsoever in the activities of the 1st and 2nd
Respondents which, in their present form, appear to be an interference with or
tampering with crime scenes. Applicant
is of the view that if the exhumations are allowed to continue they will result
in the obliteration of crucial evidence which might be useful and of national
interest.
The exhumations have
been undertaken without consulting the Applicant and other stake holders and
are not even a national effort. Mr Nkomo
for the Applicant strongly argued that the Applicant has a direct interest in
the issue given that some of its fallen heroes could have been thrown into the
mine shaft being tampered with by the 1st and 2nd
Respondents. He insisted that ZPRA
forces died and / or disappeared during and after the liberation war in
Mashonaland West and Central. A ZPRA 21 Infantry Battalion which also
operated in Mount Darwin had a number of soldiers who may be lying at Chibondo
Village, Mount Darwin.
The exhumation process
that is going on has excluded the Applicant and other interested parties and
the government is not involved making it a private adventure of the 1st
and 2nd Respondents. As
already stated, none of the Respondents have contested these claims. In the absence of any opposition, I have no
reason to disbelieve the Applicant and I am indeed satisfied that the Applicant
has made out a case for the grant of the interim relief sought.
In the result, I grant
the provisional order as amended, the interim relief of which is as follows:
1. The 1st Respondent,
FALLEN HEROES TRUST and its members, and the 2nd Respondent, GEORGE
RUTANHIRE, be and are hereby ordered and directed jointly and severally to
forthwith stop and desist from conducting any exhumation of the remains of
persons found at a disused mineshaft in Mount Darwin, Mashonaland Central and
anywhere else in Zimbabwe.
1. The 3rd and 4th
Respondents, Co-Ministers of Home Affairs, be and are hereby directed to ensure
that the 1st and 2nd Respondents forth with comply with
the terms of this interim order.
Cheda
& Partners, Applicant's Legal Practitioners
