Zimbabwe court declines to hear case seeking probe into 2008 atrocities

HARARE – The High Court of Zimbabwe has struck off a constitutional challenge aimed at compelling investigations into the 2008 election violence, during which more than 200 people were killed and thousands were tortured or displaced.

Heal Zimbabwe Trust had approached the court seeking to invalidate a provision of the Zimbabwe Human Rights Commission Act that limits the commission’s mandate to investigate historical human rights violations.

But Justice Maxwell Takuva ruled that the application was improperly before the court, as it had been brought under the supremacy clause of the Constitution instead of the correct enforcement provisions.

Heal Zimbabwe, a human rights organisation focusing on peace, reconciliation and political violence, together with Hilton Chironga, had approached the court challenging the constitutionality of section 9(4)(a) of the Zimbabwe Human Rights Commission Act (Chapter 10:30).

The provision restricts the commission from investigating complaints relating to acts or omissions that occurred before 13 February 2009, or where complaints are made more than three years after the alleged violation.

The applicants argued that the limitation was unconstitutional as it curtailed the broad investigative powers granted to the Zimbabwe Human Rights Commission under sections 242 and 243 of the Constitution.

They contended that the restriction undermined rights to truth, access to information, equal protection of the law, and freedom from torture, particularly in relation to violence that occurred during the 2008 run-off elections in Chaona, Mashonaland West.

Heal Zimbabwe sought an order compelling the Zimbabwe Human Rights Commission and the National Peace and Reconciliation Commission to investigate alleged killings, torture and assaults linked to political violence in the area.

“The Applicant argues that s 9(4) (a) is ultra vires the provisions of s 243 of the Constitution of Zimbabwe and is a violation of the doctrine of Constitutional legality.

“The Applicant submits this provision is in breach of the right to truth, access to information guaranteed by s 62 of the Constitution and S56 (1), right to equal protection and benefit of the law,” read part of the court papers.

The Zimbabwe Human Rights Commission, however, opposed the application, maintaining that it lacked jurisdiction to investigate events predating February 2009 due to the clear wording of section 9(4)(a) of the Act. The commission said it would abide by the court’s decision.

“The second Respondent is of the opinion that it is the correct position of the law, particularly on the constitutionality of s 9 (4)(a) of Zimbabwe Human Rights Commission Act. Section 9(4) (a) entails the jurisdiction of Commission to conduct investigations.

“It stipulates that the Commission shall not investigate a complaint unless the complaint is made within three years from the date on which the action or omission that occurred earlier than the 13 February 2009,” the court noted.

Parliament of Zimbabwe, cited as the third respondent, also opposed the application.

It argued that Heal Zimbabwe lacked the requisite legal standing and had failed to properly frame the matter as an enforcement of fundamental rights under section 85 of the Constitution.

Parliament submitted that the relief sought amounted to a direct challenge to legislation without a corresponding declaration of rights infringement.

In determining the matter, Justice Takuva identified four issues, including whether the applicants had locus standi, whether the application was properly before the court, and whether section 9(4)(a) was unconstitutional.

On locus standi, the court found that Heal Zimbabwe had not demonstrated that it was acting in the general public interest, but rather on behalf of a specific class of victims from the Chaona area.

The court held that this required a different procedural approach, such as a class action under section 85(1)(c) of the Constitution.

The judge ruled that although section 2 of the Constitution affirms constitutional supremacy, it does not provide a standalone procedural route to challenge legislation.

Instead, challenges to the constitutionality of a law based on alleged infringement of fundamental rights must be brought under section 85 of the Constitution.

“It is my view that the complaint by the Applicant on the constitutional validity of s 9(4) (a) of the Act, should have been made in terms of s 85 (1) (a) of the Constitution, alleging of one or more of the constitutional rights.

“Therefore, the application was not properly placed before this Court,” Justice Takuva held.

As a result, the court struck the application off the roll, making no order as to costs. The court did not rule on the substantive constitutionality of section 9(4)(a) of the Zimbabwe Human Rights Commission Act.

Heal Zimbabwe was represented by Tendai Biti, while the respondents were represented by the Attorney General’s Office, Matsikidze Attorneys-at-Law, and Chihambakwe, Mutizwa and Partners.

Zimbabwe’s 2008 election period was marked by widespread political violence that followed the first round of voting and intensified during the run-off.

Instead of a peaceful democratic process, the country experienced coordinated attacks largely targeting opposition supporters, civil society activists and ordinary civilians.

International and local human rights organisations documented thousands of cases of assault and torture, the displacement of tens of thousands of people from their homes, and more than 190 politically motivated deaths.

The violence was widely attributed to state-linked actors, including militia groups and so-called war veterans, with involvement by elements of the security forces, creating one of the gravest human rights crises in Zimbabwe’s post-independence history.