Court name
Supreme Court of Zimbabwe
Case number
SC 12 of 2003
Civil Application 311 of 1999

Zimbabwe Lawyers for Human Rights and Another v President of the Republic of Zimbabwe and Another (311/99) (SC 12 of 2003, Civil Application 311 of 1999) [2003] ZWSC 12 (19 November 2003);

Law report citations
Media neutral citation
[2003] ZWSC 12



14


SC
12/03















REPORTABLE
(30)


Judgment
No. SC 12/03


Civil
Application No. 311/99








(1)
ZIMBABWE LAWYERS FOR HUMAN RIGHTS


(2) THE
LEGAL RESOURCES FOUNDATION v





(1) THE
PRESIDENT OF THE REPUBLIC OF ZIMBABWE
(2) THE ATTORNEY-GENERAL








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA, ZIYAMBI JA, MALABA JA & GWAUNZA JA


HARARE,
MARCH 17 & NOVEMBER 20, 2003








J
B Colegrave
,
for the applicants





Y
Dondo
,
for the respondents






CHEDA JA:
The first applicant is a
universitas
which was established in February 1996. Its main purpose is to
foster a culture of human rights in Zimbabwe and encourage the growth
and strengthening of human rights at all levels of Zimbabwean
society. In particular it strives to protect, promote, deepen and
broaden the human rights provisions of the Constitution of Zimbabwe
(“the Constitution”).





The
second applicant is a charitable and educational trust established
according to the law of Zimbabwe in 1984.





The
first respondent is the President of the Republic of Zimbabwe.





The
second respondent is the Attorney-General of the Republic of
Zimbabwe, who is cited in terms of s 24(6) of the Constitution
of Zimbabwe (“the Constitution”).






By Statutory
Instrument 204A of 1981, the then President of Zimbabwe appointed a
Commission of Enquiry into disturbances at Armed
Encampments in
Zimbabwe. The appointments were in terms of s 2(1) of the
Commissions of Enquiry Act [
Chapter 10:07].
The Commission of seven members, chaired by JUSTICE DUMBUTSHENA
(as he then was), is referred to as “the Dumbutshena Commission”.





The
terms of reference for the Commission were –






(a) to inquire into the mutinous
disturbances which took place during February 1981 at



Glenville Military Camp,


Ntobazinduna
Military Camp, and


Entumbane
ZANLA and ZIPRA Camps


for
the purposes of determining the causes underlying, or which led to,
the mutinous behaviour and of identifying, if possible, the
persons
and organisations responsible for planning or promoting the
disturbances; and






(b) to make recommendations for
the resolution of the problems identified.






The
Statutory Instrument further directed that the Commission continue in
full force and virtue until it had finally reported upon
the matters
aforesaid, that it report to the President with all convenient speed
the information upon matters submitted for its consideration,
and
that it has the liberty to report to him its proceedings from time to
time.





Subsequent
to the appointment of the Dumbutshena Commission, and in 1984,
Mr Chihambakwe, a legal practitioner, was appointed
to head what
has been referred to as a Committee of Inquiry (“Chihambakwe’s
Committee”). No instrument has been found to
show if this
Committee was appointed in terms of the Commissions of Inquiry Act or
not.





There
is no report from Chihambakwe’s Committee and it has not been
properly established what this Committee was appointed to
do in the
absence of the appointing instrument and the report.





As
for the Dumbutshena Commission, the Report was never published.





The
applicants now seek an order in the following terms:





“IT
IS ORDERED THAT –






1. The President of the Republic
of Zimbabwe cause to be made public through the Government Printer
within sixty (60) days of the
date of this order at a reasonable cost
the reports made to him when he was Prime Minister of the Commission
of Inquiry into events
concerning Entumbane 1 and 2 known as the
‘Dumbutshena Report 1982’, and the Chihambakwe Committee of
Inquiry into events between
December 1982 and March 1983, known as
the ‘Chihambakwe Report 1984’.







2. If this application be not
opposed there be no order as to costs.







3. If the application is opposed
the costs be paid by the State. ”






The
first applicant, being a
universitas,
has rights of its own apart from the rights of its individual
members. It is a person in terms of s 113(1) of the
Constitution
(see also
Company
Law in Zimbabwe
by
Nkala and Nyapadi 1995 ed p 15). Its
locus
standi
was not
questioned by the respondents. Ms 
Dondo,
for the respondents, said she was arguing the case on the basis that
the applicants had a right to receive information. In other
words,
she accepts that the applicants have
locus
standi
.





The
application is based on s 24(1) of the Constitution, which reads
as follows:





“If
any person alleges that the Declaration of Rights has been, is being
or is likely to be contravened in relation to him (or,
in the case of
a person who is detained, if any other person alleges such a
contravention in relation to the detained person) then,
without
prejudice to any other action with respect to the same matter which
is lawfully available, that person (or that other person)
may,
subject to the provisions of subsection (3), apply to the
Supreme Court for redress.”





The
applicants contend that they are being hindered in the enjoyment of
their constitutional rights to freedom of expression by
the
respondents’ failure or refusal to publish the Reports of the
Dumbutshena Commission and the Chihambakwe Committee.





The
right complained of is based on s 20 of the Constitution which
reads as follows:





“Section
20 Protection of freedom of expression





(1) Except
with his own consent or by way of parental discipline, no person
shall be hindered in the enjoyment of his freedom of
expression, that
is to say, freedom to hold opinions and to receive and impart ideas
and information without interference, and freedom
from interference
with his correspondence.”





It
is on this basis that the applicants want the first respondent to
make the two Reports available to the public. No clear reason
is
given for this request. All that the applicants can say is that
they are entitled to the reports, and that, since twenty years
have
passed, there is no good reason to refuse to publish the reports.





Generally,
most Constitutions that have a Bill of Rights create those rights and
at the same time provide exceptions or derogations.
The following
are examples:





“No
person is to be deprived of his liberty except …”. (Ghana
Constitution);





“No
person shall be deprived of personal liberty except according to
procedures established by law.” (Namibian Constitution);





“No
person is to be deprived of his liberty except …”. (Zambian
Constitution);





“No
person is to be deprived of life intentionally except …”.
(Kenya Constitution); and





“No
person shall be deprived of his personal liberty save as may be
authorised by law in any of the cases specified in subsection (2).”
(Section 13(1) of the Constitution of Zimbabwe).





The
preamble to the Declaration of Rights in the Constitution of Zimbabwe
reads as follows:








“11 PREAMBLE





Whereas
persons in Zimbabwe are entitled, subject to the provisions of this
Constitution, to the fundamental rights and freedoms
of the
individual specified in this
Chapter,
and whereas it is the duty of every person to respect and abide by
the Constitution and the laws of Zimbabwe, the provisions of
this
Chapter
shall have effect for the purpose of affording protection to those
rights and freedoms
subject
to such limitations on that protection

as are contained herein,
being
limitations designed to ensure that the enjoyment of the said rights
and freedoms by any person does not prejudice the public
interest or
the rights and freedoms of other persons

(The emphasis is mine)





The
above shows that while the rights created by the Constitution are
protected, they are not absolute. They are subject to limitations.





The
provisions of s 20(2) make this even clearer:





“20 (2) Nothing
contained in or done under the authority of any law shall be held to
be in contravention of subsection (1)
to the extent that the law
in question makes provision –






(a) in the interest of defence,
public safety, public order, the economic interests of the State,
public morality or public health;





(b) for
the purpose of –






(i) protecting the reputations,
rights and freedoms of other persons or the private lives of persons
concerned in legal proceedings;





(ii) preventing
the disclosure of information received in confidence;





(iii) …





(iv) …





(v) …;
or






(c) that
imposes restrictions upon public officers;






except
so far as that provision or, as the case may be, the thing done under
the authority thereof is shown not to be reasonably justifiable
in a
democratic society.”





These
provisions make it clear that these rights can only be exercised
subject to observation of, and respect for, other people’s
rights,
or those rights stipulated in subs (2)(a) of s 20.





In
In re Munhumeso &
Ors
1994 (1) ZLR 49
(S) at 56 F-H this Court said:





“The
importance attaching to the exercise of the right to freedom of
expression and freedom of assembly must never be underestimated.

They lie at the foundation of a democratic society and are one of the
basic conditions for progress and for the development of
every man.”





Even
with the above in mind, one should not overlook the fact that
whatever has to be done, the rights of others are equally as
important and deserve protection. The interest of the State and
other persons cannot be overlooked.





In
this case, the Inquiries were ordered by the President. The Reports
were to be made to him. It is he who is aware of the
contents. He
is the one who determined in the circumstances whether it was in the
interests of defence, public safety or public
order, or in the
interest of the State, or not, to publish the Reports.





Section 7
of the Commissions of Inquiry Act provides as follows:





“It
shall be the duty of the Commissioners after taking the oath referred
to in section 5 –






(a) to make a full, faithful and
impartial inquiry into matters specified in the proclamation; and





(b) to
conduct the inquiry in accordance with the directions, if any, in the
proclamation; and





(c) in
due course, to report to the President in writing the results of
their inquiry; and





(d) when
required to do so, to furnish to the President a full statement of
the proceedings of the Commission and of the reasons leading
to the
conclusions arrived at or reported.”





It
should be recalled that in the Statutory Instrument the President
asked the Dumbutshena Commission to even “identify the persons
and
organisations responsible for planning or promoting the
disturbances”. This could result in certain persons and
organisations
being named in the Report. In that case the President
should certainly use his discretion if he deems it fit to protect the
reputations,
rights and freedoms of other persons or the private
lives of persons concerned as well as preventing the disclosure of
information
received in confidence as provided in subs (2)(b) of
s 20 of the Constitution.





In
refusing to publish the Report, the first respondent relies on the
following grounds:






“1. The Executive authority of
Zimbabwe vests in the President and the powers of Executive authority
are provided in s 31H of
the Constitution.







2. After its inquiry the
commission reports its findings to the President. The Act does not
impose any obligation on the President
to publish the Report.







3. The findings and
recommendations were solely for use by the Government and Government
had no legal duty to divulge the findings
to the general public.







4. In any case, because of the
sensitivity of the matter at the time the Report was presented to
Government, it was not reproduced
and as of now it has not been
located.”






These
appear in the affidavit of Mr E D Mnangagwa, who
deposed to the affidavit on behalf of the first respondent when
he
was Minister of Justice.






The
extent to which exercise of the President’s functions are
justiciable is provided for in s 31K of the Constitution:





“31K Extent
to which exercise of President’s functions justiciable





(1) Where
the President is required or permitted by this Constitution or any
other law to act on his own deliberate judgment, a court
shall not,
in any case, inquire into any of the following questions or matters –






(a) whether any advice or
recommendation was tendered to the President or acted on by him; or





(b) whether
any consultation took place in connection with the performance of the
act; or





(c) the
nature of any advice or recommendation tendered to the President; or





(d) the
manner in which the President has exercised his discretion.”






In
my view, publication of the Reports would amount to disclosure of the
above issues which in turn would be an infringement of
these
provisions.





There
are prerogatives exercisable by the President which are conferred on
the President by the Constitution and which the courts,
all things
being equal, cannot enquire into because the President, acting on the
advice of Government, is the best judge on matters
of policy covered
by the prerogatives. (See
Patriotic
Front – Zimbabwe African People’s Union v Minister of Justice,
Legal and Parliamentary Affairs

1985 (1) ZLR 305 (S) at 315).





The
applicants have neither shown nor alleged that there is any prejudice
to any person resulting from the failure to make the Reports
public,
except that they are for the information of the public.





As
long as the first respondent declines to publish the Reports on the
basis of the interest of the State and safety of other persons,
he
cannot be compelled to publish the Reports.





The
applicants submitted that after twenty years there is no longer any
good reason to keep the Reports confidential. The decision
to
release the Reports on the basis of the period that has passed is a
policy decision that can only be made by politicians or Parliament.

It is not a legal decision to be made by the courts.





The
derogations in the Constitution can be applied to the Reports by the
President when he deems it necessary and he is therefore
entitled to
use his discretion as long as the need to do so is governed by the
provisions in the Constitution.





The
applicants have not given any reason for wanting the Reports to be
published, other than that they are of public interest that
they be
published.





On
the other hand, the first respondent argues that they were solely for
the use of Government and was never intended for the public.



It
is clear that in so saying the first respondent is relying on the
provisions of s 20(2) and the derogations therein, which
provides:





“(2) Nothing
contained in or done under the authority of any law shall be held to
be in contravention of subsection (1) to
the extent that the law
in question makes provision –






(a) in the interest of defence,
public safety, public order …







(b) for the purpose of –







(i) protecting the reputations,
rights and freedoms of other persons or the private lives of persons
concerned in legal proceedings;







(ii) preventing disclosure of
information received in confidence.”





The
first respondent also points out that the Dumbutshena Report cannot
be located.





I
am of the view that no good cause has been shown for the above Report
to be published and that, in any case, it cannot be published
when it
cannot be found.





Accordingly,
the application cannot succeed.





The
applicants asked for costs in their draft order if the application
was opposed. At the hearing no submissions were made by
either side
on the question of costs.





Since
this is a matter of national interest, I do not intend to award costs
to either party.






I therefore make the following
order –





1. The
application is dismissed.





2. There
will be no order as to costs.











CHIDYAUSIKU  CJ:
I agree.











ZIYAMBI  JA:
I agree.











MALABA  JA:
I agree.











GWAUNZA  JA:
I agree.











Kantor
& Immerman
,
applicants' legal practitioners


Civil
Division of the Attorney-General’s Office
,
respondents' legal practitioners