Mujuru family lawyer speaks on Mujuru's exhumation and other issues

Following last year's suspicious death of retired army general Solomon Mujuru, his family demanded that his body be exhumed and a fresh autopsy be conducted.

SW Radio Africa journalist Lance Guma spoke to the Mujuru family lawyer Thakor Kewada and found out why they believe exhuming his body will help solve the mystery.

The lawyer also highlights the inconsistencies in the testimony of witnesses at the inquest which have led the family to believe Mujuru was killed before the fire.

Below is the transcript of the interview

Lance Guma: Good evening Zimbabwe and thank you for joining me on this special edition of Behind the Headlines. My guest tonight is the lawyer that is representing the Mujuru family, that's Thakor Kewada.

I'm happy to report that Mr Kewada joins us to talk about the inquest on the death of General Solomon Mujuru. Mr Kewada thank you so much for your time.

Thakor Kewada: My pleasure.

Guma: Okay, first things first - the question on most Zimbabwean lips - why does the Mujuru family believe exhuming his body will help solve the mystery surrounding his death?

Kewada: Well the situation is that my clients and their relatives and a number of the general public don't believe that the pathologist who carried out the first autopsy did a thorough job.

During the inquest I cross-examined the pathologist for nearly two and a half hours; there are general rules acceptable throughout the world when you are carrying out an inquest or carrying out an autopsy, that you in fact, first of all, you x-ray the body and thereafter you would then take the organs and dissect each organ separately and examine each organ thoroughly.

The report which was filed by Dr Alvero the Cuban pathologist did not give us much confidence in the way the report was written and what he had actually done and what he had said he had done. There were a number of discrepancies which I raised and put to him and he admitted that these were mistakes.

He also said that he did not have sufficient equipment and that he had to send for equipment from Parirenyatwa Hospital to be brought to One Commando Barracks where the autopsy was taking place.

When I questioned him as to what equipment he eventually received from Parirenyatwa Hospital, he said three blades, one pair of pliers and a saw. Now to my mind that really does not give much confidence as to what really was taking place and how the examination of that body proceeded.

He did not dissect any of the organs; they were there, he claimed that all the organs had been burnt.

I showed him photographs that were taken while he was examining the body and was carrying out his autopsy and said - look at the area from the throat to the groin, the photographs, which are colour photographs, clearly show that there are organs there and he was actually touching these organs and we could see this from the photographs.

So with all due respect to him, he said he examined them by just looking at them and feeling them etcetera. My understanding and this has been confirmed by investigations that I've carried out, research that I've carried out and furthermore and more importantly, we called a pathologist from South Africa.

We had hoped that the magistrate would have permitted this pathologist to give evidence but the magistrate said he wanted to hear the Cuban pathologist who he had called as a witness before he took his decision as to whether we could call the South African pathologist Dr Perumal.

Guma: Now you say that Dr Alvero, who does not speak English, destroyed the original autopsy report which he wrote in Spanish. A lot of people are asking the question - why did he do so?

Kewada: Well I in fact asked him for his report which was written in Spanish, yes it is true he does not speak English and therefore we had to have a Spanish interpreter. Initially he said yes he had his report which he had written in Spanish; subsequently he changed his mind and said oh no I tore that up.

Now that does not give us much confidence in that what he said in the post mortem report which was in some respects shallow, why would he tear up the report which he understands and he can read and for him to destroy that - when did he destroy it? We don't know.

But the situation here is, to my mind it looks suspect or there may have been some ulterior motive as to why that report, written in Spanish, was destroyed.

Guma: You made a lot about Dr Alvero not being registered in Zimbabwe; legally how much weight does that carry in terms of the validity of his testimony if he is not registered?

Kewada: Well if one was to look at the Inquest Act, the Inquest Act talks about a registered medical practitioner. Now when I read Dr Alvero's post mortem report which is an affidavit actually made under oath, I for some reason decided that I wanted to check if this man was a registered pathologist so I phoned the Medical and Dental Council, they did not have his name on their records and as a result of that it means he was not registered.

At the hearing I asked if he was registered with the Medical and Dental Council in Zimbabwe and he said no he was in Zimbabwe as a result of a Government-to-Government assistance aid programme and subsequently, or at the beginning the prosecutor indicated that the name that is given on the post mortem report which said Dr Alvero whatever it was, that his full names was something different but it included this Dr Alvero etcetera and it added another name, I presume as a surname called Rodrigues.

Now my understanding and my enquiries of the Medical Council was that he was not registered, whether he was subsequently registered, certainly at the date that he examined the body and gave his report, his post mortem report in the form of an affidavit, technically speaking, it's invalid because the Act itself says it's got to be a registered medical practitioner and Dr Alvero himself admitted that he was not registered.

Guma: What sort of inconsistencies in the testimonies given during the inquest? What sort of inconsistencies convinced the family that foul play took place on the night Mujuru died? If you could just summarise some of the inconsistencies that you've picked up as the family lawyer.

Kewada: Is this the inconsistencies in the post mortem report or inconsistencies generally speaking?

Guma: Generally speaking in the whole inquest.

Kewada: Okay, well let's start off at the very beginning: when the general arrived there at his farm in the evening, he went and he collected, he had indicated that he had left his house keys in Harare so he went to the compound where his housemaid lives.

He asked the housemaid for the keys to the kitchen door, the back door and yet the housemaid had said at the very beginning that she had cleaned the house that morning, she had locked the bedroom area completely and taken the keys. She had locked all the other doors, although some of the other outer doors, she left the keys in the keyholes.

Now when the general went to collect the key to the kitchen door from the housemaid, he said she wanted to give him the whole bunch and he said no I only need the kitchen door key but if he left his entire set of keys in Harare, then the kitchen door is only going to let him into the kitchen and nowhere else.

The maid, when I asked her why didn't you tell the general that you've locked the bedrooms completely and you've got the keys so he'll need these keys because the conversation prior to that was oh if I don't get into there, I won't be able to sleep and I'll have to go and sleep in my motor car and she said no you mustn't do that because you've got a pain in your back, in your neck and your back.

So therefore I enquire why did she not specifically say to him no you have to have these keys to enter the bedroom? So that is an inconsistency in a way.

The second thing was she said she heard gunshots and some of the other witnesses said oh no it was the police witnesses said there were really asbestos being blasting as a result of the fire. Or that it could be that one of the police or the guards were shooting snakes or shooting into the air to chase away maybe intruders who might be around.

So there's areas which the police have not thoroughly investigated as far as that's concerned. The next situation is the police guards who were there on duty: now their job is a job on assignment to guard a VIP and that was the police assignment.

Now the two policemen said oh they had retired to their rest room there and were asleep. The other guard, police guard was supposed to be on patrol. Now it is alleged that the general died between 8.20 on the night of the 15th of August going into quarter to four the following morning, the 16th of August.

The mind boggles when one says what were you doing and how come you did not see the fire or anything that would indicate that the farmhouse was on fire?

Even if one police guard was on duty, surely his function must be to guard the house, walk around, check that there's no intruder etcetera and that aspect of it, the police guard had indicated well he never saw anything; I believe that he probably didn't do his duty by patrolling the house.

The other two policemen and the one who was awake and on duty said that they had walked all the way to the compound to go find out from the maid which was the bedroom; these guys, these police guards had been guarding this place for at least three months, surely they must know if they were patrolling that house and this is just the surroundings of the house.

In three months they would have known the lounge is here, the bedroom is there, the kitchen is there and all that sort of stuff because the curtains are not always drawn, the maid admits that she would clean the house etcetera so it doesn't ring true that these guys did not know where the bedroom was and if they did know, they could have broken into the house and rescued the general.

However even before that if a fire starts, a fire doesn't go into an absolute wild blaze to begin with. It will probably start and they said there were two areas where the fire started; one was in the main bedroom and the next one was just outside the lounge, the second lounge or TV room by the passage.

The Fire Brigade expert said if a fire starts intensely in two areas that is a sign of arson. That somebody, if a fire starts in one place one can understand that it sort of grew and then spread but to have two intense places, this indicates arson.

But commonsense dictates that if one is in fact in the bedroom sleeping and the general's has two very big windows on either side of his headboard in his bedroom and often in the past if he didn't want to walk all the way round through the kitchen to go out, he would actually just open the window and walk out of the windows, because the windows were fairly low down and you could just step over.

And his grandchildren also used to imitate him in doing that. Now commonsense dictates that if there is a fire that has started it must grow gradually and this is a man who has fought, fought a long battle in the war and was always alert, that if he was sleeping in that bedroom of his and the fire started or he smelt smoke etcetera, his natural reaction would be to jump out of the window but that's not what happened or that's not the scene as we see it.

His body was found in the next room by the passage and a doorway. Now why would one walk from one flaring blaze fire to the next room where there's fire and then try to escape from there when the quickest route was to just jump out of the window which were not burglar barred. Just open windows like that and he used them many times to get out.

Guma: Now you say some of the workers and security personnel at the farm knew what really happened to the general, why do you think they are not coming forward with the truth?

Kewada: This is the suspicion my clients and their family and their friends and the general public have. If anybody does not come forward to say what they know we can only assume that they were either asleep and didn't care much about their duties and what they were doing or they were probably spoken to and told keep quiet.

That's as far as I can put it and this is why my clients and their family and friends are suspicious and the general public is suspicious. What happened from 8'o'clock in the evening or 20 past eight in the evening until quarter to four when the fire started?

Guma: Several reports claim the Attorney General has the final say on whether Mujuru can be exhumed or not; do you agree with this legal view?

Kewada: Are you talking about exhuming the body?

Guma: Yes.

Kewada: The Attorney General yes he is the person who would take a decision one way or the other; however the Inquest Act says that if a body is to be exhumed, one must make an application to the Minister of Home Affairs in terms of the Cemeteries Act.

So it would appear that the person who is in fact, who can in fact give the go-ahead to exhume a body is the co-ministers of Home Affairs. Now whether they will be over-ruled by the Attorney General I would suggest anything is possible.

Guma: How complicated will that be because we have two co-Home Affairs ministers, one from the Zanu PF and one from MDC-T? That's set to be quite an interesting decision making process.

Kewada: When I spoke to the Attorney General not too long ago and when the report, the Coroner's Report was out, I said to him why don't you just speak to the Minister of Home Affairs and you tell him to allow me to exhume the body and have this pathologist from South Africa come up and examine it and the pathologist may come to the same conclusion that Dr Alvero came to or he might come to a different conclusion but at least that will bring closure to the matter;

And he said to me okay, you go and see the Minister of Home Affairs. Well I have not done so yet because I want to put forward a number of aspects to my client because my client received a copy of the Coroner's Report on the day before she was travelling to go to India with a group of Zimbabwean businessmen and from there she was then going to go to Dubai on another assignment.

She did come back last Sunday; I've not been able to meet with her and I'm hoping that it won't be too long before I do meet with her because at the time that she gave me the Coroner's Report, she had not read it yet so I would have to give her some time to digest it and then I will have a discussion with her. Once I have that discussion and if my instructions are to have the, to make the application to the Minister of Home Affairs, then I will certainly do so.

Guma: But how disappointing is it for the family, given Mujuru's impeccable liberation war credentials that they are having to fight tooth and nail to have his body exhumed? It must be frustrating.

Kewada: Sorry can you say that again?

Guma: Given Mujuru's record in the liberation war and his contribution to Zimbabwe, how frustrating is it for the family that they have to fight tooth and nail to have his body exhumed and have their suspicions allayed?

Kewada: I tend to agree with your sentiments on this thing here. I have indicated to people that the Mujuru family, the general and the Vice President belong to the same party so this is something that is happening within the family and therefore to bring closure to this thing we should have been allowed to exhume the body or to call the pathologist that we wanted to call and for him to give evidence.

What the magistrate said to me what I could do was I could bring any expert I wanted but he wouldn't give evidence, he could bear direct questions to me and I would then ask the witnesses. When our pathologist came here, we had to bring him at very short notice and he had other assignments to attend to in South Africa so he was here only for two days.

And in fact on the second day he left quite early to get to the airport to catch the midday flight. So yes it is very disappointing. In the minds of the general public who know that I want to make this application and I had at the inquest, advised the magistrate that I will be applying to the Minister of Home Affairs to have the body exhumed.

So the general public have known about this for quite a while. The suspicion here is this - if there is nothing to hide, why don't you just allow the body to be exhumed, let somebody else examine it and see if there is anything that can come out of it. After that if we are satisfied, we will call it quits. You know close the door, close the chapter and get on with their lives.

Guma: How much of this is political? Most of the speculation is centred on the fact that this is a very sensitive issue within Zanu PF, there is a lot of disharmony, people are not happy with the way it's being conducted, so how much of your fight as a lawyer is going to be political more than legal?

Kewada: I would rather not dwell on the political side because I am not a politician; I don't support one party or the other party; I act for people in Zanu PF and I act for people on the other, from other parties as well. I act purely as a lawyer and I do my job to the best of my ability. There have been lots of rumours about this being a political matter.

Nobody is prepared to say what they believe; they're very cagey about it; their attitude basically is that he was in fact killed and the body put into the house or alternatively there was somebody in the house waiting for him and as soon as he arrived, he was bumped off.

Whatever needed to be done was done because the body was charred, the area that still had the organs in there, he was charred and he was lying face down and that area around the chest, from the throat to the groin seemed to be intact because it was protected by the carpet that was on the floor and that carpet had not even burned down.

So people are saying there are, there were curtains that were brought from the bedroom to court to show as exhibits. Some of these curtains were burnt at the top and the rest of the curtain was still there. If the body had, if the house had caught such fire, and such intense fire, how come those curtains were still intact apart from a top portion? One would expect cloth would burn a lot faster than a body.

The suspicion, one of the suspicions that has been made and given as to why or how they think the general's body was charred in that way was white phosphorus. Now white phosphorus is a chemical that is found in grenades and apparently if you take white phosphorus and you spread it on a body with the atmosphere, the oxygen in the atmosphere, it will eat up that body.

Now white phosphorus is not available easily and one cannot just buy it wherever you want to buy it; it's usually kept by the military so therefore not very many people would have access to it.

The other theory that has been given was somebody used a dart that they use for killing, or not killing but immobilizing an elephant or a rhino when they want to move it from one place to another etcetera which will immobilize somebody and eventually what need's to be done was done.

But these are theories that I put to you, that people have put and said. That's their suspicions that they give.

Guma: It was reported that the DNA results when Mujuru's daughter was tested to try and confirm that his body was actually his, we are told these DNA results came after burial. Is it possible that part of the reason why you are struggling to get his body exhumed is that maybe it's not his body buried there after all?

Kewada: Well that is a suspicion from a lot of people and the family. The situation here is this: the autopsy took place on the 16th; the general was buried on the 19th or the 20th; the pathologist after he completed the, his examination, then on the 19th went to get a sample, a tissue sample from the body and that tissue sample was sent off or we are told, was sent off to South Africa to be examined by the forensic experts from the South African police in Johannesburg.

The blood sample to prove that this is the general's body, to carry out a DNA, they asked for a blood sample from the daughter. That blood sample was taken on the 24th of August. The man or that body had already been buried long before any results on these tests were carried out so what the hell were the tests carried out in the first place for?

That particular body which is alleged to be the body of the general was already buried. Now when I put this to the pathologist and I said so how do you know that this was the body of the general? Oh I've been told about it, so therefore the pathologist did not satisfy himself 100% to say that is, the body that he is examining is definitely the body of the general.

One of the ways, and I put this to the pathologist, is if the pathologist in his post mortem report said the upper limbs, the arms, were severed at the elbows, and the lower limbs were severed at the knees, when I asked him if he had seen a wedding ring on the general's left hand, he said oh yes he had seen it.

Now if he had just taken the Vice President who was sitting next door and taken her into the room where he was carrying out his autopsy and said can you identify this ring and is it your husband's ring, she would have been able to identify it but that was never done.

Nobody knows where that ring is yet the photographs show that the left arm was still intact, it was the right hand that was severed at the elbow. The same with the legs, the pathologist in his report said both legs were severed at the knees and I showed him the photographs and said but surely look at these photographs.

Not both, both these legs have not been severed at the knees, it was just the one leg and he admitted that yes it was a mistake on his part and that was now a second mistake on his part. There's lots of other mistakes that I believe he has made. The situation when one looks at the evidence and pieces that you get - the general's motorcar was found not where he normally parks it.

It was found right round the other side which means that he would have to walk, if he left his car there, he would have to walk and come all the way and it's quite a distance, to come and open the kitchen door to enter the house. That's why there's also the suspicion that this car was parked where it would never normally be parked.

It was never locked, he had some groceries he took from Harare to take to the farm, those were still in the plastic bag in the car. His cell phone was found in the car. There was a suit that was hanging there, was still in the car and the car was not locked and to this very day, nobody knows where the keys for that car is.

Now commonsense dictates that if he wanted to enter the house through the kitchen door that's why he went to collect the keys, he normally parks not far from the kitchen door and that's where everybody else parks, that is the parking area to enter the house or for visitors who come visiting them etcetera. So all these are little suspicious aspects which we say hold on it doesn't ring true, there are far too many questions out there.

As far as the forensic experts are concerned, I cross examined the two forensic experts; the one in his report said that he was told to check and examine for liquids only - paraffin, petrol and diesel so he never carried out a test on anything else except those things. The next one was the other pathologist, when he was asked what was he asked to check for and his report said that, he said it was for explosives.

And I said from your tests did you find any explosives and he said no and I said well how is that possible because the investigating officer came to court with a bag weighing six kilograms of spent bullets. Now gunpowder in bullets is explosives, he said that he found that all in the bedroom, the general's bedroom and it exploded because of the fire.

So when I put that to the forensic expert from South Africa and also told him about the ballistics report which also showed there were a number of other ammunition that was blasted out in that bedroom, I said if that happened, how come you could not find any evidence of explosives? And he said well the samples we received were all contaminated.

Now that leaves a lot to be said as to how come the samples did not show any traces of explosive. Were they actually taken from the bedroom or were they taken from an area of the bedroom where there were no explosives there for the purposes of showing there were no explosives used.

Guma: Now you've given quite a compelling case and an argument; for the benefit of our listeners could you just summarise why the magistrate in this inquest refused to consider these points that you are raising and there's this resistance to have the body exhumed? Why in the face of this compelling evidence are you still being turned down?

Kewada: Well I think that's a question one has to ask the magistrate. He's, in his report if you have read it, he actually praises all the witnesses and says it's not their fault if they could not come to a conclusion because it's of the situation in the country.

The fire brigade came but with a truck that wouldn't have been able to carry any water to put the fire out so what the hell did the fire brigade arrive there for? We have those other trucks that are used when there's a riot, I don't know what we call them but they spray water on people who are rioting, now we've got quite a few of those I am told, why wasn't that used?

But anyway, that being the situation, the every, the magistrate looked at all the witnesses, he must have read the transcript of the evidence and the conclusion I've come to and that's what he says in his report, he virtually praises all the witnesses including Dr Alvero whom I had exposed a number of discrepancies and lack of professionalism as far as I'm concerned.

The magistrate said well what I was talking about was textbook examination and the pathologist was doing a practical one. With all due respect that is a very, very flimsy excuses.

Guma: My final question for you Mr Kewada, in cases where the state is refusing to prosecute or proceed with a matter, we often hear of the concept of private prosecutions. Should you get enough evidence to pin this as a murder and actually get a suspect, is it possible to carry out a private prosecution? A lot of our listeners are asking this question.

Kewada: No, an inquest is a hearing to try to establish the cause of death and how it was caused or in this case, the fire, how did he die and how did the fire start.

It's not a prosecution, it's not a trial and our Inquest Act is very limited, it's very limited and our Inquest Regulations are very limited but I would expect that the authorities would say here was this general who was a hero for Zimbabwe, who fought in the war, who did a lot for this country, we need to ensure that no stone is left unturned.

So if I ask for an examination, to exhume the body and have it examined, I think that would go a long way to alleviating some of the suspicions and even if we don't come to a convincing conclusion at least the family will feel we've done what we could.

At this stage if we try to get a complete hearing of the whole matter you must bear in mind from August last year when the general died right up to the time of the inquest, which was what, February, March? A lot of time has lapsed, the evidence has probably been destroyed.

Even if the evidence hasn't been destroyed like the South African forensic expert said, the samples we received were contaminated; they were not packed properly, they were just put into plastic bags and tied up and sent out there. There is a special bag that you use to carry exhibits for examination.

Now that wasn't done and surely the investigating officer must know that there are special bags; this particular investigating officer has been in the police force and he's been in the homicide section of the police force for a good twenty-odd years so we can't say that he doesn't know what needs to be done and I'm sure he's done some of these in the past.

So there is all these suspicions. Whether we would be able to reconstruct the whole thing and try to have another hearing, I don't think that is going to help very much because the evidence would have disappeared by that stage or it was contaminated evidence so that aspect of it of a complete new hearing won't really take us very far.

I have said that we could take the matter up on review or on appeal. The Inquest Act is very silent about it; it does not say you cannot do it, it does not say you can do it but the High Court is the upper guidance on all these matters and has jurisdiction.

But we believe that if we were allowed to examine the body, by, through another pathologist, we would at least satisfy ourselves and my clients would feel a lot more relieved that they've done whatever they can or could do to have that body examined.

The pathologist that we brought in said he read Dr Alvero's post mortem report, he was very critical of it and he said he hasn't done this, he hasn't done that and he hasn't done that and he hasn't done that and therefore, unless that is done you cannot come to these conclusions.

Guma: Could you take it to the High Court? As you are talking about the High Court, is this something you could take to the High Court?

Kewada: I imagine we could. We could appeal to the High Court and say that this report that the pathologist, the inquest report is lacking and there are I believe that the magistrate has erred in a number of respects. With all due respect to the magistrate I believe he has erred and I have said that before.

Now there are, yes we could take it to the High Court; whoever is going to hear it whether he comes to the same conclusion that the Attorney General came to that the report is very fine and thoroughly done etcetera, there are lots of suspicions in the minds of the general public in these matters so we generally speaking, generally speaking have to watch to a certain extent what we say also.

Guma: Well Zimbabwe on that note we will have to end the interview. That is the lawyer for the Mujuru family, Mr Thakor Kewada joining us on this special edition of Behind the Headlines. Many thanks to Mr Kewada for sparing us his time.

Kewada: Thank you very much, my pleasure.

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