Opposed
Application
MAFUSIRE
J:
[1]
Section 251(1) of the Constitution of Zimbabwe says:
“For
a period of ten years after the effective date, there is a commission
to be known as the National Peace and Reconciliation Commission
consisting of –”
The
rest is not immediately relevant.
[2]
Mrs Chinanzvavana, the applicant, is a Member of Parliament for the
House of Assembly on the ticket of the Movement for Democratic Change
– Alliance party (MDC-A), the largest opposition political party in
Zimbabwe by number of followers, at least from the results of the
last general election on 30 July 2018. She wants the court to
pronounce that the intention of the framers of the Constitution, as
expressed in section 251(1) above, was that the life of the National
Peace and Reconciliation Commission (“the NPRC” or simply “the
Commission”) once established “… after the effective date …”
would be, at the very least, ten years. Otherwise, she says, there is
nothing in that section limiting the existence of the Commission to
just ten years.
[3]
For her cause, the applicant has brought to court the top echelons of
the Executive arm of the Government of Zimbabwe comprising the
President; his Vice to whom the administration of the Commission is
assigned; the Minister of Justice who, among other roles, doubles up
as leader of Government business in Parliament, and the Attorney
General of Zimbabwe, who, among other things, is the chief legal
adviser. It being the subject of the suit, the NPRC is also a party.
[4]
At first brush, there can be nothing awkward or problematic with what
section 251(1) of the Constitution is saying. The provision is
recognizing that there is an effective date, for this is clearly
defined in section 332 of the Constitution. It is naming a certain
commission that should be there for a fixed period after the
effective date. It names that commission as being the NPRC. It
defines that period as ten years. In other words, and looking at it
superficially, the Commission exists for ten years after the
effective date.
[5]
But apparently the position is not altogether that obvious. To begin
with, the section does not expressly tell when exactly the Commission
is established. It starts by simply recognising it as a fait
accompli, a thing that has already happened after the effective date.
The hidden problem comes out more in the open when one considers the
exact nature of the relief sought by the applicant. According to her
draft order:
“1.
The National Peace and Reconciliation Commission established in terms
of Section 251 of the Constitution shall have tenure of life of ten
years which are deemed to have commenced on the 5th of January 2018
when the National Peace and Reconciliation Act became law.
2.
It is declared that the ten year life and tenure of the National
Peace and Reconciliation Commission shall deem to run from the 5th of
January 2018.
3.
The 1st Respondent pays costs of suit.”
[6]
Thus, to the applicant, the ten year period should be counted from 5
January 2018. That should be deemed the effective date because, she
says, that is when the operation of the Commission became effective
when the enabling legislation, the National Peace and Reconciliation
Act, Cap 10 32 (“the enabling Act”), was gazetted. That is when,
according to her, the Commission became operational when, among other
things, the commissioners were sworn in; the secretariat appointed;
the funding for the Commission's operations provided for; the
manner of its operations spelt out; and so on.
[7]
The respondents have opposed the application on one single ground
that they have stuck to from beginning to end. At the beginning they
took the point as a preliminary objection, or point in limine, and
filed no further defence on the merits. According to them, the
Commission automatically ceases to exist ten years after the
effective date.
[8]
Section 332 of the Constitution defines “effective date” as the
date when the Constitution came wholly into operation as contemplated
by section 3(2) of the Sixth Schedule to the Constitution. In terms
of section 3(2) of this Schedule, the rest of the Constitution came
wholly into operation on the day on which the President elected in
the first election (after the promulgation of the Constitution)
assumed office. The former President, Mr Robert Gabriel Mugabe,
assumed office after that election in August 2013. On all this the
parties are ad idem, save for a minor discrepancy on the exact date
former President Mugabe assumed office in August 2013: the applicant
saying 18 August, and the respondents saying 22 August. In fact, it
was 22 August.
[9]
The respondents' argument is that the court cannot do what the
applicant wants it to do. What the applicant wants done is to have
the court declare that the effective date referred to by section
251(1) of the Constitution is 5 January 2018, and that therefore the
Commission lasts until 4 January 2028. The respondents say that that
will amount to the court amending the Constitution “by the back
door”. It is unheard of. Only Parliament, not the court, gets to
amend the Constitution in terms of the procedure set out in section
328 of the Constitution.
[10]
In the answering affidavit the applicant denounces the respondents'
conduct of just raising the point in limine and refraining from
pleading to the merits altogether. To her that is arrogance. I was
persuaded. The point in limine was the entire case before me. I
considered that it was bogus. By avoiding the merits altogether the
respondents were in effect pleading in intalmnts. In terms of Rule
232 and Rule 233 of the High Court Rules, respondents have ten days
from the date an application is served upon them, to file their
notice of opposition together with one or more opposition affidavits.
They are barred if they fail to comply. So I took the respondents to
task on why they had pleaded that way.
[11]
Mr Chimiti, for the respondents, argued that pleading in the manner
the respondents had done was permissible. He referred to a case the
name and citation of which he said he could not remember. He said the
respondents in that case had pleaded in exactly the same way the
respondents herein had done, avoiding the merits altogether and only
taking a point in limine which they argued all the way on appeal to
the Supreme Court, and succeeding for that matter.
[12]
I deprecated the respondents' conduct. The objection to pleading in
instalments had been raised as early as the applicant's answering
affidavit. The respondents had not replied. On his part, Mr Chimiti
seemed ill-prepared. He was relying on an indeterminate case
authority. The matter had to be postponed.
[13]
I dismissed the respondents' preliminary objection on the ground
that the issue they were raising was in fact the substance of the
whole case before me. The applicant was not asking the court to amend
the Constitution. She was asking the court to interpret section
251(1). Courts do this all the time. From time to time they are
called upon to interpret pieces of legislation which someone may
consider vague, meaningless, or the like. In casu, the applicant was
asking for nothing unusual. So to mark my displeasure for the way the
respondents had pleaded, I ordered them to pay the wasted costs on an
attorney and client scale. I gave them leave to file their notice of
opposition in terms of the time frame Counsel had mutually agreed
upon.
[14]
Pleading 'in instalments' as it were, that is, only taking a
preliminary objection or point in limine and refraining from pleading
to the merits unless the objection is dismissed, is not provided for
in the Rules of Court. The Rules of Court contemplate a situation
where the respondents have one bite of the cherry. They plead all
their defences and technical objections within the prescribed ten
days. Only in exceptional circumstances may they do what the
respondents in casu have done.
[15]
In the case of Zimbabwe Lawyers for Human Rights & Anor v
President of the Republic of Zimbabwe 2000 (1) ZLR 274 (S), in which
exactly the same situation happened, GUBBAY CJ said1:
“It
is true that such cases as Bader & Anor v Weston & Anor 1967
(1) SA 134 (C) at 136E–G; Governing Body of the Winterberg
Agricultural High School v President of the Eastern Cape & Ors
[1996] 3 All SA 71E at 77E–I; and Valentino Globe BV v Phillips &
Anor 1998 (3) SA 775 (SCA) at 779I–780B, lay down, as a general
rule of procedure, that a respondent who wishes to raise a
preliminary issue against an application should file an affidavit on
the merits of the matter within the normal time limits prescribed by
the rules of court. In other words, a respondent is at risk in
relying solely upon a preliminary point. But the rule is not rigid or
inflexible. See Standard Bank of South Africa Ltd v RTS Technique and
Planning (Pty) Ltd & Ors 1992 (1) SA 432 (T) at 442A–E.
Situations may arise where the procedure of merely taking a
preliminary point is unexceptionable. To my mind, the present is just
such a situation” (my emphasis).
[16]
It turned out that the case authority Mr Chimiti had wanted to rely
on was that of The President of Zimbabwe, Robert Gabriel Mugabe &
Ors v Tsvangirai SC21-17.
He
was right to say that in that case the respondents only took a
preliminary objection and refrained from dealing with the merits. In
the High Court the preliminary point was dismissed. The respondents
were given leave to file their response on the merits. However, they
appealed to the Supreme Court against the dismissal of their point in
limine. The appeal succeeded. The preliminary objection was upheld.
However, the Supreme Court did not deal with the question whether or
not the respondents had been right to simply take a technical
objection and leave the merits for another day. Even the High Court
had not dealt with the point either, only noting in passing that the
respondents had yet to file their papers on the merits2.
[17]
Therefore, the correct position on whether a respondent can take a
preliminary objection and refrain from dealing with the merits until
the preliminary point has been determined is as set out in Paragraphs
[14] and [15] above.
In
casu, there was nothing “unexceptionable” in the preliminary
point that the respondents were raising. Raising it to block the
consideration of the case on the merits was vexatious.
[18]
Every case depends on its own facts. In the present case, it was very
clear that all that was sought by the applicant was a judicial
pronouncement of the meaning of section 251(1) of the Constitution in
relation to the tenure of the NPRC.
In
reality, what the respondents sought to do by mounting the
preliminary objection in the form they did was to impugn the
consequences of the court's pronouncement, if it were to agree with
the applicant, rather than its inherent power to interpret
legislative provisions.
Viewed
from this angle the objection became even more absurd.
As
SACHS J of the South African Constitutional Court would put it3,
the rights and values promoted by a constitution are fundamental to
the judges' role as defenders of the constitution. They link up
directly with the oath the judges take, which is to uphold and
protect the constitution and the fundamental rights entrenched
therein.
“Only
the most compelling language would justify a departure from such a
clear responsibility.”4
[19]
The respondents eventually filed their affidavit on the merits.
Little
or nothing of the extensive allegations in the applicant's founding
and answering affidavits was challenged.
In
summary, the applicant's case was that the Constitution was a
negotiated document during that period in history from 2008 when
government power in Zimbabwe was shared among the then leaders of the
then three dominant political parties: the Zimbabwe African National
Union–Patriotic Front (ZANU-PF), then led by Mr Mugabe; and the two
MDC formations, one led by Mr Morgan Richard Tsvangirai and the other
by Professor Arthur Mutambara. It was called a Government of National
Unity (GNU) whose mid-wife was the then South African President, Mr
Thabo Mbeki, through some framework called the Global Political
Agreement (GPA).
[20]
The applicant explains that the constitutional making process was an
extensive and protracted effort which involved several other abortive
initiatives, including the one led by the then Chief Justice of
Zimbabwe, the late Mr Godfrey Chidyausiku, and the other led by
representatives from ZANU-PF and the MDC, Messrs Patrick Chinamasa
and Welshman Ncube respectively.
Procedures
set out in the GPA involved outreach programmes to all parts of the
country to gather the views of the populace on the various thematic
areas. The setting up of some kind of commission or body to
investigate certain conflicts like the disturbances that rocked
Matabeleland and Midlands Provinces from about 1982 to 1987, commonly
referred to as “Gukurahundi” – much along the lines of the
South African Truth and Reconciliation Commission chaired by the
Anglican Archbishop Desmond Tutu – was one such thematic chapter.
[21]
The applicant alleges that, among other issues, the setting up of a
peace and reconciliation commission became so emotive and contentious
that it threatened to derail the whole constitutional making process.
At the core was the unflinching objection by ZANU-PF for its setting
up, which was equally matched by the resolute determination by the
MDC formations for its establishment. The applicant says that from
the outreach programmes, the idea of setting up such a body garnered
51% support, and sat at number six in terms of popularity after
issues of electoral reform; human rights; anti-corruption; media, and
land.
[22]
To break the deadlock, the applicant says a compromise was reached.
Among other things, the NPRC would be set up with some kind of
truncated mandate in terms of time frames. It would only have a life
span of ten years and would only investigate post 2013 conflicts. She
says that that explains why section 251(1) of the Constitution is
worded the way it is.
[23]
In her narrative, the applicant adverts to the violence that flared
up in this country in 2008 following a general election the first
results of which produced no outright presidential winner between Mr
Mugabe and Mr Tsvangirai, leading to a re-run that was eventually won
by Mr Mugabe amid bitter contest when Mr Tsvangirai had pulled out of
the race citing excessive violence against members of his party. She
says she and her entire family suffered severely in that violence.
She was abducted by State agents together with several other members
of her party. She was detained for fifty-five days during which she
and her fellow abductees were kept blindfolded for most of the time
and were subjected to severe torture, and to inhuman and degrading
treatment.
[24]
The applicant says several members of her party were brutally
murdered or they simply disappeared. They remain unaccounted for to
this day. She and her colleagues were eventually handed over to the
police. However, plans to prosecute them for subversion collapsed
after one of the abductees, Ms Jestina Mukoko, won a permanent
reprieve from the Supreme Court given the illegal pre-prosecution
conduct of the State: see Mukoko v Attorney General 2012 (1) ZLR 321
(S).
[25]
Mr Biti, for the applicant, argues that the NPRC is such an important
constitutional body whose functions should not be restricted beyond
what the Constitution already does. He argues that the respondents
have by design rendered the Commission impotent and have purported to
proscribe its operations by severely limiting its life span. They
waited a staggering five years before giving the Commission its
wings. It was only made operational on 5 January 2018 when the
enabling Act became law. Yet post conflict investigation is so
critical to heal wounds, given the history of violence in Zimbabwe
which is traced from the first war of liberation in the 1890s, called
the First Chimurenga; the second war of liberation in the 1970s,
called the Second Chimurenga; Gukurahundi, and all the other
subsequent periods of violence, particularly at general election
times.
[26]
The only serious contest to the applicant's factual averments on
the history and birth of the NPRC, something said “from the Bar”
by Mr Chimiti, is that the respondents did not exactly wait five
years before setting up the Commission. He says by 17 July 2016 the
first chairperson of the Commission had already been appointed. His
name was Mr Cyril Ndebele. Unfortunately he died seven months after
appointment.
[27]
Mr Chimiti agrees that the current NPRC, led by Mr Selo Nare, a
retired Judge of the Labour Court, only became operational after 5
January 2018 following the promulgation of the enabling Act. Mr
Chimiti's basic argument is that whatever might have happened,
under no circumstances can the life of the NPRC extend beyond ten
years after the effective date. To do so will be to do violence to a
clear constitutional provision. He further argues that the
respondents did comply with their obligations in terms of section
251(1) of the Constitution in that within a period of ten years from
the effective date they managed to incept the NPRC. He says all that
the section implores the respondents to do is to ensure that the NPRC
is set up within the ten year period.
[28]
So the issue before me, putting it simply, is what is the meaning of
section 251(1) in relation to the life of the NPRC? Can this
commission exist after 21 August 2023, being the ten years after the
effective date? Or can it exist up to 21 August 2028 being the ten
years after the enabling Act was gazetted? Can it not even exist in
perpetuity after 22 August 2013, the effective date? What exactly did
the framers of the Constitution mean?
[29]
To answer the above questions I have invoked the relevant techniques
of statutory interpretation as they apply to constitutional
provisions. Ideally the various canons of construction should return
the same result. But invariably they return conflicting answers. When
that happens the court does not throw its hands in the air in
despair. It gets down to work. It sets out to unravel the hidden
meaning. DENNING LJ (as he then was) said in Seaford Court Estates
Ltd v Asher [1949] 2 All ER 155 (CA) at 164E–H5:
“Whenever
a statute comes up for consideration it must be remembered that it is
not within human powers to foresee the manifold sets of facts which
may arise, and, even if it were, it is not possible to provide for
them in terms free from all ambiguity. The English language is not an
instrument of mathematical precision. Our literature would be much
the poorer if it were. This is where the draftsmen of Acts of
Parliament have often been unfairly criticised. A judge, believing
himself to be fettered by the supposed rule that he must look to the
language and nothing else, laments that the draftsmen have not
provided for this or that, or have been guilty of some or other
ambiguity. It would certainly save the judges trouble if Acts of
Parliament were drafted with divine prescience and perfect clarity.
In the absence of it, when a defect appears a judge cannot simply
fold his hands and blame the draftsman. He must set to work on the
constructive task of finding the intention of Parliament, and he must
do this not only from5
Quoted with approval in S v Aitken 1992 (2) ZLR 84 (S), at 89A–D
the language of the statute, but also from a consideration of the
social conditions which gave rise to it and of the mischief which it
was passed to remedy, and then he must supplement the written word so
as to give 'force and life' to the intention of the legislature.”
[30]
A constitutional instrument is sui generis. It calls for principles
of interpretation of its own and suitable to its character (see
Minister of Home Affairs (Bermuda) & Anor v Fisher & Anor
[1980] AC 319, at 328– 29; [1979] 3 All ER 21 (PC) at 25–26). But
in general, the principles governing the interpretation of a
constitution are basically no different from those governing the
interpretation of any other legislation: see Hewlett v Minister of
Finance & Anor 1981 ZLR 571 (S), at 580F.
[31]
There are a number of guides to statutory interpretation, or 'canons
of construction'. The law has not yet authoritatively established
any complete hierarchy among them: see Tzu-Tsai Cheng v Governor of
Pentonville Prison [1973] 2 All ER 204, at 212H. However, the 'golden
rule' of statutory interpretation is universally the first and most
elementary rule of construction.
[i]
The 'golden rule' of construction
[32]
According to this technique, except in technical legislation, it is
to be assumed that the words in a statute are used in their ordinary
and natural meaning. Nothing is to be added unless the words are at
variance with the clear intention of the legislature as gathered from
the statute itself, or they render a manifest absurdity or some
repugnance. If that be the case, the language may be varied or
modified. Otherwise it is a strong thing to read into a piece of
legislation words which are not there, and in the absence of clear
necessity it is a wrong thing to do: see Thompson v Goold & CO
[1910] AC 409, at 420.
[33]
Of the golden rule of statutory interpretation, McNALLY JA put it
this way in Chegutu Municipality v Manyora 1996 (1) ZLR 262 (S):
“There
is no magic about interpretation. Words must be taken in their
context. The grammatical and ordinary sense of the words is to be
adhered to,… 'unless that would lead to some absurdity, or some
repugnance or inconsistency with the rest of the instrument, in which
case the grammatical and ordinary sense of the words may be modified
so as to avoid that absurdity and inconsistency, but no further.”6
[34]
Applying the golden rule to section 251(1) of the Constitution, I do
not find it saying the life of the NPRC is ten years from the
effective date. Mr Biti emphasises that the preposition used in that
section is “after”, not “from”. The section says, “For a
period of ten years after the effective date …” It does not say
“For a period of ten years from the effective date...” I agree.
Mr Chimiti's argument that the Commission can only exist for ten
years after the effective date would probably make sense if it was
“from”, not “after” that the section uses. With “from”
the clock would have started to tick from 22 August 2013. “From”
is a preposition depicting, among other things, the point in time at
which a particular process, event or activity starts. That point in
time is determinate. It is definite. It is fixed. But “after” is
not. It is indeterminate. It is unfixed.
[35]
If the Commission was effectively established five years, or even
three years after the effective date, and if Mr Chimiti insists that
there was nothing wrong with that, then the respondents' argument,
taken to its logical conclusion, could mean that they could well have
waited nine years and eleven months. They could simply incept the
Commission on the eve of the expiry of the ten year period. They
would still have complied. That brings me to the second canon of
construction relevant to this case. It is the presumption against
anomaly or absurdity.
[ii]
Presumption against anomaly or absurdity
[36]
By this technique the courts adopt a construction agreeable to
justice and reason. There is a presumption that in enacting a law, no
unreasonable result is intended. If there is some construction
available other than that leading to an unreasonable result, it is
the one to be preferred. The reason, as GUBBAY CJ put it in S v
Aitken 1992 (2) ZLR 84 (S)7,
is:
“For
to stand aside where the object and intention of the enactment are
clear would be to allow it, contrary to good sense, to be reduced to
a nullity by the draftsman's unskilfulness or ignorance of the
law.”
[37]
So if the date the Commission was effectively established is 5
January 2018 or, according to Mr Chimiti, 7 July 2016, and if,
according to the respondents, the Commission must not exist beyond
ten years after the effective date, the result could be a monstrous
absurdity. As noted above, the respondents could wait nine years and
eleven months before incepting the Commission and still claim to have
complied. Plainly that is wrong. Plainly the reference to ten years
in section 251(1) of the Constitution is to the life of the
Commission rather than the length of time given the respondents to
establish it.
[38]
That the reference to ten years is in regards to the life of the
Commission rather than the time given for its establishment becomes
clearer if regard is had to the other provisions of the Constitution.
When interpreting an unclear provision it is permissible for a court
to go outside it and consider the entire document: see Chegutu
Municipality v Manyora (supra). In this regard, section 324 of the
Constitution provides that all constitutional obligations must be
performed diligently and without delay. Mr Chimiti had no choice but
to concede that for the Government to have waited five years, or on
his construction, three years, before incepting the Commission,
cannot pass the diligence and without delay test.
[39]
Furthermore, by section 252 of the Constitution, a whole range of
daunting responsibilities are fostered upon the NPRC. They include:
(i)
ensuring post conflict justice, healing and reconciliation;
(ii)
developing and implementing programmes to promote national healing,
unity and cohesion in the country; and
(iii)
bringing about national reconciliation.
[40]
Zimbabwe has been blighted by conflict before and after independence.
Its peoples are severely polarised. In a nutshell, the mandate of the
NPRC is to inculcate and nurture a culture of tolerance, peace, love
and harmony. Each of the functions assigned to it by the Constitution
requires lots of time to accomplish. It is even doubtful whether ten
years are enough. But to put the issue beyond doubt I go on to
consider the next canon of construction.
[iii]
Purposive and generous construction
[41]
This canon of construction calls for a broad and generous approach.
The aim is to identify the core values underpinning the rights
enshrined in a constitution and promote its whole purpose. It avoids
a narrow, artificial, rigid and pedantic interpretation. It eschews
the “austerity of tabulated legalism”: see Rattigan & Ors v
Chief Immigration Officer & Ors 1994 (2) ZLR 54 (S).
[42]
Of the purposive and generous approach to constitutional
interpretation SACHS J, in the Mhlungu case above, and quoting LORD
DENNING, said8:
“All
it means is that the Judges do not go by the literal meaning of the
words or by the grammatical structure of the sentence. They go by the
design or purpose which lies behind it. When they come upon a
situation which is to their minds within the spirit – but not the
letter – of the legislation, they solve the problem by looking at
the design and purpose of the legislature – at the effect it was
sought to achieve. They then interpret the legislation so as to
produce the desired effect” (my emphasis).
[43]
Unlike the old Constitution which was negotiated in Britain at
Lancaster House in 1979 to stop the war of liberation and grant
Zimbabwe independence, the current Constitution is home grown. Quite
regrettably, since 1982 Zimbabwe has suffered, and continues to
suffer, conflict, especially at election time.
[44]
The current Constitution came into force in 2013. It was an attempt
to break with the past which was characterized by intense violence
and suffering. Its aim and aspiration is to establish an egalitarian
society. It is laden with the values of equality, peace, unity,
democracy and justice. These are summarised in the preamble.
Of
a preamble to a constitution, SACHS J says9
it should not be dismissed as “a mere aspirational and
throat-clearing exercise of little interpretative value. It connects
up, reinforces and underlies all of the text that follows. It helps
to establish the basic design of the Constitution and indicate its
fundamental purpose” (my emphasis).
[45]
The establishment of the NPRC and the mandate given it in section 252
of the Constitution should be viewed from this angle. It is
undoubtedly one of the most important independent commissions
established under Chapter 12. There are four others, namely the
Zimbabwe Electoral Commission; the Zimbabwe Human Rights Commission;
the Zimbabwe Gender Commission and the Zimbabwe Media Commission.
[46]
Yet unlike its siblings, the NPRC is the only one with some
proscription as to time. But its mandate in section 252 is so broad
in terms of time and scope. The first of these functions is to ensure
post-conflict justice, healing and reconciliation. Conflict happens
all the time. It can happen anytime and anywhere. It needs to be
investigated and remedial measures taken to avoid recurrence. This
judgment is written against a background of deplorable violence on 1
August 2018, a day after the general election on 30 July 2018 in
which six people died. This tragic event led to the establishment by
the second respondent herein of a Commission of Enquiry, chaired by
the South African exPresident, Mr Kgalema Petrus Motlanthe.
[47]
As if that was not enough, the hearing of this case is happening
against a background of further violence that flared up from 15
January 2019 and in which an unknown number of people died. All this
is massive work for the NPRC, not to mention the other episodes of
violence in the past.
[48]
The considerable foresight of the framers of our Constitution in
setting up the NPRC and bestowing upon it broad based functions so as
to safeguard our nascent democracy and, inter alia, develop
strategies to bring about national unity, healing, peace, justice,
reconciliation and facilitate dialogue among political parties as
provided for in section 252, should not unnecessarily be impeded by
the 'austerity of tabulated legalism' in constitutional
interpretation or the need to accommodate parochial sectarian
interests. On the contrary, the interpretation of section 251 of the
Constitution, should unapologetically be so wide as to give maximum
support to the values and ethos of the Constitution such that, among
other things, the reference to ten years must be read so as to mean
the minimum period of life of the NPRC rather than the end of it from
the effective date. The same result flows from a consideration of the
next canon of construction.
[iv]
Construction according to historical setting and the 'mischief'
rule
[49]
According to this canon of construction, first is ascertained the
general situation, or rather the historical setting against which the
constitution was framed. Secondly, is ascertained the 'mischief'
or the particular situation for which a remedy was being provided.
[50]
In casu, the historical setting against which, and the mischief for
which, the current Constitution was promulgated and the NPRC was set
up, are self-evident from the applicant's affidavit which the
respondents have not contested in any material respect. It is a
historical fact that since independence Zimbabwe has lurched from one
episode of violence and conflict to another. Some of these episodes
stick out quite notoriously, like Gukurahundi from 1982 to 1987. It
only ended with the Unity Accord between the then two dominant
political parties, ZANU-PF, then led by Mr Mugabe, and the Patriotic
Front–Zimbabwe African People's Union (PF-ZAPU), then led by the
former Vice-President of Zimbabwe, the late Mr Joshua Mqabuko
Nyongolo Nkomo.
[51]
The other notorious episode of violence was immediately after the
presidential election in March 2008 as already explained above. The
applicant says she and her family were some of the victims of that
violence. Mr Mugabe's installation as President of the Republic was
bitterly contested. This led to the GNU, one of whose task was to
motivate, sponsor and craft a broad based constitution to foster
peace, unity, justice, reconciliation and democracy, among other
values. The result was the current Constitution that gave birth to,
among others, the NPRC.
[52]
The Preamble to the Constitution crisply captures the 'mischief'
for which the framers were providing a solution. It says in part:
“We
the people of Zimbabwe, United by our common desire for freedom,
justice and equality…,. Recognising the need to entrench democracy,
good, transparent and accountable governance and the rule of law,
Reaffirming our commitment to upholding and defending fundamental
human rights and freedoms, …, Cherishing freedom, equality, peace,
justice, tolerance,…, Resolve by the tenets of this Constitution
to commit ourselves to build a united, just and prosperous nation,
founded on values of transparency, equality, freedom, fairness,
honesty and the dignity of hard work,…,.”
[53]
The Chapter 12 independent Commissions of which the NPRC is one, are
demonstrably some of the strategies to attain and protect the rich
values espoused by the Constitution. This is unambiguously spelt out
in section 233. On the list of objectives of those Commissions are
the following:
(i)
to support and entrench human rights and democracy;
(ii)
to protect the sovereignty and interests of the people;
(iii)
to promote transparency and accountability in public institutions;
(iv)
to ensure the observance of democratic values and principles;
(v)
to ensure that injustices are remedied.
[54]
Among other obligations, Government must provide adequate funding for
these Commissions [section 325(1)(a)]. It and all its institutions
and agencies at every level must assist them through legislative and
other measures [section 235(2)] (my emphasis).
Therefore,
given that the respondents gazetted the enabling Act for the NPRC and
appointed its staff only midway through the ten year period after the
effective date, it cannot be argued rationally that section 324 of
the Constitution was complied with. This is the provision that
requires diligent and timeous performance of constitutional
obligations. In short, there was a serious breach of a constitutional
obligation by the respondents.
[v]
Conclusion
[55]
The application of all the canons of construction considered above
returns the same result. It is my conclusion that the reference to
ten years in section 251(1) of the Constitution is in relation to the
life of the NPRC after its establishment after the effective date,
and not the period within which it must be established.
Unquestionably,
it must have been established immediately after, or as soon as
practicable, after the effective date in line with section 324 of the
Constitution.
[56]
In the result, except for the prayer for costs, there is nothing
wrong or irregular in the nature, form or substance of the relief
sought by the applicant.
But
with costs, it is now established practice to make no award in public
interest litigation, which this case by all means is.
Accordingly
the following order is hereby granted:
1.
The National Peace and Reconciliation Commission that is established
in terms of section 251 of the Constitution shall have tenure of life
of ten years deemed to have commenced on 5 January 2018 with the
gazetting as law of the National Peace and Reconciliation Act, Cap
10:32. 2. There shall be no order as to costs.
13
March 2019
Tendai
Biti Law, applicant's legal practitioners
Civil
Division of the Attorney-General's Office, first and second
respondents legal practitioners
1.
At p279D–F
2.
At p3 of the cyclostyled judgment
3.
In S v Mhlungu & Ors 1995 (3) SA 867 (CC)
4.
At p912
5…,.
6.
See also Zimbabwe Revenue Authority & Anor v Murowa Diamonds
(Pvt) Ltd 2009 (2) ZLR 213 (S) at 217H–218A
7.
At p88G–H12
8.
At p916D–E
9.
In S v Mhlungu, supra, at p913
