''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.''…,.
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 first and second 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 third and fourth respondents, whose Ministry is charged with superintending
national monuments, have stood akimbo remaining disinterested onlookers even as
the first and second 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 first and second
respondents, which, in their present form, appear to be an interference with or
tampering with crime scenes. The 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 stakeholders and are not
even a national effort. Counsel 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 first and second
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 first and second 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.
2.
The 3rd and 4th Respondents, 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. 