The
plaintiff is the eldest daughter of the late Chief Nyangayezizwe
Mvuthu Mlotshwa who was the substantive chief of Mvuthu area in
Hwange District until his death in March 2014. The second defendant
is her uncle, the brother of her father, who has been seconded for
appointment as the next Chief Mvuthu.
The
plaintiff has instituted summons action against her uncle and the
cited Government officials, including the President of the Republic
of Zimbabwe, seeking the following relief:
“(a)
An order for the setting aside and declaration as null and void the
appointment of the second defendant as a substantive Chief Mlotshwa
of Mvuthu area under the Hwange District by the 1st
defendant and/or 3rd
defendant and 4th
defendant on the grounds that the process of appointment is not in
compliance with section 3 of the Traditional Leaders Act [Chapter
29:17] read with the Constitution of Zimbabwe, in particular section
51, section 56, section 63.
(b)
An order that pursuant to (a) above the 1st
and 3rd
defendants ensure compliance with section 3 of the Traditional
Leaders Act [Chapter 29;17] in the choice of a substantive Chief
Mlothswa for Hwange District, Mvuthu area within 90 days of granting
of the order, failing which the plaintiff, being the eldest daughter
of the late Chief Mlotshwa (Mvuthu) and being heir apparent and with
no legal impediment prohibiting her to be substantive Chief Mlotshwa
be and is hereby declared as such under the Traditional Leaders Act
and customs, practices and norms.
(c)
An order that any of the defendants who opposes the relief sought
pays the costs of suit on an attorney-client scale.”
The
plaintiff's case could have been presented better and the pleadings
drafted in a more elegant manner, but, in essence, she avers in her
declaration that they are the descendants of the Nguni people who
hail from South Africa. They follow the lineal system of succession
in the appointment of a chief, sometimes expressed in the term “a
chief begets a chief” meaning that the eldest child of the Chief
succeeds the Chief.
This system contrasts with the rotational system often found in Shona
culture where chieftainship moves from one family to the other within
the clan.
As
the last Chief Mvuthu is survived by only three daughters, she being
the eldest, and he had no son whatsoever, it means that she should
succeed her father as the next Chief Mvuthu. On account of her
gender, those charged with the responsibility of selecting a
successor, discriminated against her and moved the chieftainship
sideways to the second defendant, her uncle, whose name has been
forwarded to the appointing authority, the President, for appointment
as substantive Chief Mvuthu overlooking her, the heiress apparent.
As
if the discrimination on the basis of gender was not bad enough, the
second respondent does not hail from the chief's area of
jurisdiction, he does not even have a homestead there, but has lived
all his life in South Africa. His appointment is therefore at
variance with all the known norms and customs of the people and is
motivated only by sexism, greed and other vices. It is for that
reason that she craves the grant of an order setting aside the
nomination aforesaid.
The
defendants have filed special pleas to the claim. In their special
plea, the first, third and fourth defendants averred as follows:
“1st,
3rd
and 4th
defendants plead specially to the plaintiff's summons and
declaration as follows:
1.
The plaintiff has approached the wrong forum. The High Court does not
have jurisdiction to determine disputes concerning the appointment,
suspension and removal of traditional leaders.
2.
In terms of section 283(c)(ii) of the Constitution of Zimbabwe
Amendment (No. 20) Act 2013, these disputes must be resumed (sic)
by the President.
3.
The 3rd
and 4th
defendants have been wrongly joined as parties because what
transpired was the nomination process and only involved the 1st
defendant.
WHEREFORE,
the 1st,
3rd
and 4th
defendants pray for plaintiff's claim to be dismissed with costs.”
As
if in chorus, the second defendant also filed a special plea
objecting to the jurisdiction of this court. He averred:
“2nd
defendant specially pleads to plaintiff's claim as contained in the
summons and declaration as follows:
1.
This Honourable Court does not have jurisdiction to entertain or
resolve any dispute concerning and/or in connection with the
appointment, suspension, or removal of a traditional leader including
a chief.
Wherefore,
second defendant prays that the plaintiff's claim may be dismissed
with costs on an attorney and client scale.”
The
plaintiff has tried to aver, in her replication, that she does not
seek to be appointed or nominated as substantive chief but desires
“protection from discrimination during the nomination process;” a
kind of distinction without a difference not helpful at all when
considered against the specific provisions of the Constitution
dealing with chieftainship disputes.
In
advancing arguments in support of the special pleas, both counsel for
the first, third and fourth defendants and counsel for the second
defendant relied on the authority of Gambakwe
and Others v Chimene and Others
HH465-15 and Munodawafa
and Others v District Administrator, Masvingo
HH571-15 in which this court sought to interpret the provisions of
section 283 of the Constitution.
What
they did not do is to address their minds on the status of the
authority of Moyo
v Mkoba and Others
2013 (2) ZLR 137 (S), a case in which the Supreme Court pronounced
itself on the justiciability of the process of selecting a chief in
light of the new dispensation introduced by section 283 of the new
Constitution….,.
Counsel
for the plaintiff submitted lengthy heads of argument and
supplementary heads of argument. For all his industry and extensive,
certainly not intensive, research, he did not address the gist of the
special pleas. He complained bitterly about crass male chauvinistic
arguments used to discriminate against the plaintiff by the clan and
to disqualify her from succeeding her father on no other ground than
that she is a woman.
It
is regrettable that the plaintiff's people have adopted a
classicist position of preserving the male domination mentality, that
only the masculine gender has capacity to hold leadership office, in
a time capsule as something perfect, pure and unchanging in the face
of constitutional imperatives like section 56 of the Constitution
that men and women have the right to equal treatment, including the
right to equal opportunities in political, economic, cultural and
social spheres.
It
is disgraceful that when all the progressive legal instruments are in
place there are still some among our people who cherish the
feudalistic views expressed in casting aside the plaintiff on gender
in favour of someone else when the succession principles of her clan
clearly point to her as the heiress to the throne. The Government can
only put in place the legal mechanisms for the advancement of women's
rights but as long as our people do not embrace those rights, the
struggle for the emancipation of women and the enjoyment of these
rights will remain a pipe dream.
The
biggest problem confronting the plaintiff in the present matter is
not that she does not have a Constitutional right to equal
opportunities in the cultural and social sphere, because she
certainly has that right, it is the forum that she has approached as
an expression of that right.
Has
she come to the right court?
In
terms of section 283 of the Constitution:
“An
Act of Parliament must provide for the following in accordance with
the prevailing culture, customs, traditions and practices of the
communities concerned -
(a)
The appointment, suspension, succession and removal of traditional
leaders;
(b)
The creation and resuscitation of chieftainships; and
(c)
The resolution of disputes concerning the appointment, suspension,
succession and removal of traditional leaders; but –
(i)
The appointment, removal and suspension of chiefs must be done by the
President on the recommendation of the Provincial
Assembly
of Chiefs
and through the National Council of Chiefs and the Minister
responsible for traditional leaders in accordance with traditional
practices and traditions of the communities concerned.
(ii)
Disputes concerning the appointment, suspension and removal of
traditional leaders must be resolved by the President on the
recommendation of the provincial assembly of chiefs through the
Minister responsible for traditional leaders.
(iii)
The Act must provide measures to ensure that all these matters are
dealt with fairly and without regard to political considerations.
(iv)
The Act must provide measures to safeguard the integrity of
traditional institutions and their independence from political
interference.”
The
current Act of Parliament providing for matters referred to in
section 283 of the Constitution is the Traditional Leaders Act
[Chapter 29:17].
As
has been said repeatedly about the delays in aligning the laws to the
current Constitution, the Traditional Leaders Act [Chapter 29:17] is
still lagging behind awaiting alignment. For instance, the Act does
not provide a dispute resolution mechanism regarding the appointment
and succession of chiefs. While it does provide for a Provincial
Assembly
of Chiefs,
in section 35, it does not have as one of its functions making
recommendations to the President envisaged by the Constitution.
What
is however not in dispute is that chieftainship wrangles now fall, by
constitutional provision, to be resolved by the President on the
recommendations of the Provincial
Assembly
of Chiefs.
By clear and unambiguous language, the law giver has bestowed that
responsibility on the President.
The
issues to be determined in this matter have already been subjected to
erudite judicial pronouncements before. In Gambakwe
and Others v Chimene and Others
HH465-15,
UCHENA J…, considered the effects of section 283(c)(ii) of the
Constitution and concluded that it imposes a duty on the President to
resolve disputes concerning the appointment of chiefs whether they
occur before or after the appointment, to the exclusion of the
courts. The learned judge asked rhetorically;
“Otherwise,
how must the President resolve such disputes if the courts can also
resolve them? The use of the word 'must' means he is obliged to
resolve every such dispute.”
The
learned judge went on to conclude that since a Provincial Assembly
now has the mandate to make recommendations to the President on how a
chief should be nominated, it means that an aggrieved person has
alternative remedies to approach the Provincial Assembly of chiefs
for it to make recommendations to the President over and above the
remedy of submitting a grievance to the President.
It
is trite that, even though this court has inherent jurisdiction to
decide any matter, traditionally, it will not invoke such inherent
jurisdiction where a party has other domestic remedies through which
it can obtain recourse.
A
few weeks after UCHENA J…, had pronounced himself in Gambakwe
and Others v Chimene and Others
HH465-15, TSANGA J was confronted with the same question of the
effect of section 283 of the Constitution in Munodawafa
and Others v District Administrator, Masvingo
HH571-15. She followed the reasoning in the earlier matter but also
added the crucial point, which I totally agree with, that this court
will always be a forum of jurisdiction and for its jurisdiction to be
completely ousted would require a specific provision to that effect.
What
is clear though is that section 283 of the Constitution has created
domestic or internal remedies for a party who is aggrieved by a
process of selecting a chief. Such person is at liberty to approach
the Provincial Assembly, which is reposed with the authority to make
recommendations to the President, or to submit a grievance to the
President for resolution. To the extent that such remedies are
available, this court will not readily exercise jurisdiction.
The
judgment of the Supreme Court in Moyo
v Mkoba and Others
2013 (2) ZLR 137 (S), was delivered on 7 August 2013. The
Constitution which ushered in section 283 was promulgated on 22 May
2013 although most of its provisions only came into effect on 22
August 2013. What is apparent though is that the apex court dealt
with the provisions of section 3 of the Traditional Leaders Act
[Chapter 29:17] as they applied before the new Constitution changed
the law relating to the selection of a chief.
In
that case, MALABA DCJ remarked…,:
“The
President is required to act on his own deliberate judgment after he
has information relating to the prevailing customary principles of
succession applicable to the community to which he must give due
consideration. Whether the information placed before the President
relates to the matters to which he is required to give due
consideration is a justiciable question…,.”
It
occurs to me that the remarks of the learned Deputy Chief Justice
remain good law even after the coming into effect of the new
Constitutional dispensation. In other words, the process of selection
at the level of the Provincial Assembly and the responsible Minister,
and the recommendations they make to the President, can still be
subjected to judicial review while the appointment by the President
cannot as it is executive discretion. What has changed however is
that the dispute must first and foremost be submitted to none other
than the President himself for resolution.
I
have no doubt that the plaintiff has a good case to make about how
and indeed why she was overlooked on gender bias in breach of her
constitutional right. However, the debatement of those issues must
take place before the President in terms of the current law. There is
therefore merit in the special pleas filed by the defendants and this
court has to decline jurisdiction.
In
the result, it is ordered that;
1.
The special pleas filed by the defendants are hereby upheld.
2.
This court declines jurisdiction in this matter.
3.
The plaintiff shall bear the costs of suit.
