Exhumation outside court’s jurisdiction: Experts

Lawyers who spoke to our Harare Bureau yesterday referred to the Inquests Act, which they said did not provide for any contestation of the findings of the court during and at the end of the proceedings.
They also indicated that exhumation was outside the jurisdiction of the inquest and only the Minister of Home Affairs could grant an order for exhumation.
This came after regional magistrate Mr Walter Chikwanha threw out a request by the Mujuru family for the body of the late Gen Mujuru to be exhumed.
Family lawyer Mr Thakor Kewada had sought exhumation of the body in the event that the court decided to hear the evidence of a South African pathologist, Dr Reggie Perumel.
Mr Kewada yesterday said that there was communication breakdown between him and the court on the said application for exhumation.
He denied ever making an application for exhumation saying he only suggested exhumation for the South African pathologist to examine the body.
Mr Kewada said he was waiting for the outcome of the case before taking further instructions from the Mujuru family.
A senior law officer in the AG’s Office said the magistrate was the one in control of the proceedings and that his decisions could not be appealed against by anyone.
“The magistrate does not find anyone guilty or innocent in an inquest. He simply brings witnesses to give evidence that will assist him in compiling a report on his findings and possibly recommendations to be forwarded to the AG.
“Noone is convicted in the inquest proceedings as to warrant an appeal. Evidence led in the inquest establishes who the deceased was, how and where he died,” he said.
According to rule number 6 of the Inquests Rules under Statutory Instrument 129 of 1998, inquest proceedings seek to answer four questions.
“The proceedings and evidence at an inquest shall be directed solely to ascertaining who the deceased was, how, when and where the deceased came to his death.”
Another lawyer said the inquest was not a process meant for the family although they were given an opportunity to ask questions.
“An inquest is a judicial inquiry and it is not conducted for relatives and friends although they are allowed to ask questions.
“A report is sent to the AG who uses his discretion on whether or not to agree with the magistrate.
“Where there is reasonable suspicion of foul play, the AG can order further investigations. Where negligence is detected, a directive for the culprit to be charged is made and where it is not possible to find what really happened, the case will just be closed.
“There is no room for appealing against the court or the AG’s decision under the Inquests Act,” he said.
A senior magistrate said the decision of the magistrate and recommendations would not be announced in court and that exhumation should be separately sought from the Minister of Home Affairs.
“The process is different from that used in criminal and civil court proceedings. The magistrate has the final say and he chooses who he wants to call as witnesses.
“The ruling will not be announced in court but it will simply be sent to the AG together with the record of proceedings and relevant evidence relied on.
“Exhumation is outside the jurisdiction of the court. It is the police or the AG, upon satisfaction that exhumation is necessary, who can apply for it to the Minister of Home Affairs,” said the expert.