ZPRA Veterans Trust v fallen Heroes Trust and Ors (HC 880 of 2011) [2011] ZWBHC 61 (6 April 2011)

ZPRA VETERANS TRUST Applicant

Versus

FALLEN HEROES TRUST 1^st Respondent

And

GEORGE RUTANHIRE 2^nd Respondent

And

THERESA MAKONE, N.O. 3^rd Respondent

And

KEMBO MOHADI 4^th Respondent

(Co-Ministers of Home Affairs)

And

SEKAI HOLLAND, N.O 5^th Respondent

And

MOSES MZILA NDLOVU, N.O 6^th Respondent

And

JOHN LANDA NKOMO, N.O. 7^th Respondent

(Co-Minister of State: National Healing, Reconciliation

& Intergration)

JOINT MONITORING & IMPLEMENTATION 8^th Respondent

COMMITTEE (JOMIC)

HIGH COURT OF ZIMBABWE

MATHONSI J

BULAWAYO 6 APRIL AND 7 APRIL 2011

Mr V.L. Nkomo with Mr S. Mazibisa, for the Applicant

No appearance from all the Respondents

JUDGMENT

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 1^st Respondent, FALLEN HEROES TRUST and 2^nd 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 3^rd to 8^th Respondents and involving all stakeholders and interested parties.

2. The 3^rd and 4^th 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 3^rd to 8^th Respondents and involving all stake –holders and interested parties.

3. The 5^th, 6^th and 7^th 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 8^th Respondent, Jomic, be and is hereby directed to oversee and ensure that the 1^st to 7^th 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 1^st Respondent, FALLEN HEROES TRUST and its members, and the 2^nd 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 3^rd and 4^th Respondent, Co-Ministers of Home Affairs, be and are hereby directed to ensure that the 1^st and 2^nd 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 1^st and 2^nd 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 3^rd and 4^th Respondents whose ministry is charged with superintending national monuments have stood akimbo remaining disinterested on lookers even as 1^st and 2^nd Respondents have no lawful authority to undertake the exhumation exercise.

According to the Applicant, the organ on national healing reconciliation and integration and the 8^th 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 1^st and 2^nd 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 1^st and 2^nd 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 1^st and 2^nd 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 1^st Respondent, FALLEN HEROES TRUST and its members, and the 2^nd 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 3^rd and 4^th Respondents, Co-Ministers of Home Affairs, be and are hereby directed to ensure that the 1^st and 2^nd Respondents forth with comply with the terms of this interim order.

Cheda & Partners, Applicant’s Legal Practitioners