The
first applicant claims to be the guardian (zibambo) of the Budzi
chieftainship. The second to the fifth applicants are the eldest
surviving male children from the four houses among which the Budzi
chieftainship rotates. The applicants claim that the guardian and the
eldest male children of each house have the responsibility of
nominating a person to be appointed chief of the Budzi clan. They say
the second respondent nominated and imposed the first respondent for
appointment as Chief Budzi against their customs.
The
first respondent is the eldest son of the late Gwinyai Dzivakwe who
was appointed Chief Budzi but had not been installed when he died. He
has been nominated for appointment as Acting
Chief Budzi and it is believed the second to the fourth respondents
are in the process of preparing papers for his appointment by the
President.
The
applicants seek an interdict to stop them from processing papers for
the first respondent's appointment.
The
second respondent is the District Administrator of Bikita District
under which the Budzi chieftainship falls. The third respondent is
the Provincial Administrator of Masvingo Province under which Bikita
District falls. The fourth respondent is the Minister of Local
Government Rural and Urban Development through whom the
recommendations for a Chief
or Acting
Chief's
appointment is forwarded to the President.
The
applicants filed this urgent application seeking the following
interim order;
“That
pending determination of this matter the Applicants are granted the
following relief;
(a)
2nd,
3rd,
and 4th
Respondents be and are hereby interdicted from processing and
forwarding to His Excellency the President of Zimbabwe the documents
pertaining to the nomination and appointment of the 1st
respondent as Acting Chief Budzi.”
Counsel
for the applicants' relied on section 3 of the Traditional Leaders
Act [Chapter
29:17]
to establish the applicants' right to nominate a person to be
appointed Acting Chief Budzi. She submitted that, because the
provisions of section 3 of the Traditional Leaders Act and the
customs of the Budzi clan were not followed, the nomination of the
first respondent is most likely going to be declared null and void in
an application for a declaratory order the applicants filed under
HC4111/15. She submitted that the process of appointing a Chief
takes about a month hence the applicant's apprehension that if the
second to fourth respondents' are not interdicted from processing
the appointment, the appointment might have gone through by the time
their application will be heard.
The
respondents opposed the application.
Counsel
for the first respondent submitted that the first applicant is not
the guardian of the Budzi chieftainship, and, therefore, has no right
to have been consulted in respect of the first respondent's
nomination. He submitted that the first applicant's elder brother
is the guardian of the Budzi chieftainship. He submitted that the
second to the fifth applicants, while heads of Houses among which the
chieftainship rotates, do not have an interest in the current
appointment as their Houses have already had their chances as the
current chief should come from the Chimene House. He submitted that
the fifth respondent has a right to contest the chieftainship as a
member of the Chimene House but he is not the son of the last
appointed Chief Budzi and is therefore not entitled to be appointed
the Acting Chief Budzi.
Counsel
for the first respondent further submitted that the resolution of
disputes should be done by the President, in terms of section 283 of
the Constitution, on the recommendation of the Provincial Assembly of
Chiefs through the Minister responsible for traditional leaders. He
submitted that the Constitution gave the responsibility to resolve
disputes concerning the appointment of Chiefs to the President. He
submitted that the courts can only intervene on review after the
President will have resolved the dispute.
Counsel
for the second
to fourth
respondents agreed with counsel for the first respondent's
submissions
and further submitted that the applicants are erroneously relying on
section 3 of the Traditional Leaders Act [Chapter
29:17]
which provides for the nomination of persons for appointment as
substantive chiefs. She submitted that section 4 of the Traditional
Leaders Act, which provides for the appointment of Acting Chiefs,
does not provide for a nomination procedure. She therefore submitted
that the applicants had no right to nominate an Acting Chief and are
therefore not entitled to the interdict sought.
Sections
3 and 4 of
the Traditional Leaders Act [Chapter
29:17]
provide as follows;
“3
(1)
Subject to subsection (2), the President shall appoint chiefs to
preside over communities inhabiting Communal Land and resettlement
areas.
(2)
In appointing a chief, in terms of subsection (1), the President -
(a)
Shall give due consideration to -
(i)
The prevailing customary principles of succession, if any, applicable
to the community over which the chief is to preside; and
(ii)
The administrative needs of the communities in the area concerned in
the interests of good governance; and
(b)
Wherever
practicable, shall appoint a person nominated by the appropriate
persons in the community concerned in accordance with the principles
referred to in subparagraph (i) of paragraph (a):
Provided
that, if the appropriate persons concerned fail to nominate a
candidate for appointment as chief within two years after the office
of chief became vacant, the Minister, in consultation with the
appropriate persons, shall nominate a person for appointment as
chief.
4
(1)
Subject to subsection (2), in the event of the office of a chief
becoming vacant through the death of the chief, or his removal or
suspension from office in terms of this Act, the President may
appoint an acting chief to preside in his stead for such period or
periods as the President may fix.
(2)
An appointment in terms of subsection (1) shall cease to have effect
-
(a)
On the date the President, in terms of subsection (1) of section
three,
appoints
a chief for the community concerned; or
(b)
On the cancellation of the suspension of the chief of the community
concerned in terms of subsection (3) of section seven;
or
(c)
When the President cancels the appointment.”
Counsel
for the applicants, in her response, conceded that section 3 of the
Traditional Leaders Act [Chapter
29:17]
does not apply to the appointment of an Acting Chief. She further
conceded that Acting Chiefs are appointed in terms of section 4(1) of
the Traditional Leaders Act.
That
concession is fatal to the applicants' application which depended
on the provisions of section 3(2) of the Traditional Leaders Act
which gives the applicants a role in the nomination of a person for
appointment as Chief Budzi. Section 4(1) of the Traditional Leaders
Act, which applies to the appointment of Acting Chiefs, does not
provide for their participation; it merely provides that if the
office of a chief is vacant “the President may appoint an Acting
Chief to preside in his stead for such period or periods as the
President may fix.”
That
should have been the end of the inquiry if the Constitution had not
changed the law because an interdict can only be granted to a party
who has an actual or prima
facie
right. The applicants, in terms of section 4(1) of the Traditional
Leaders Act do not have any such rights.
Section
4(1) of the Traditional Leaders Act [Chapter
29:17]
is not consistent with the provisions of section 283 of the
Constitution. In terms of section 2(1) as read with section 10 of the
Sixth Schedule of the Constitution “any law, practice, custom or
conduct inconsistent” with the Constitution “is invalid to the
extent of the inconsistency”. Section 4(1) of the Traditional
Leaders Act cannot, because of its inconsistency with section
283(c)(i) of the Constitution, be the determinant factor in this
case.
Section
283 of the Constitution, which provides for the appointment of
Chiefs, provides as follows;
“283
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
through the National Council of Chiefs and the Minister responsible
for traditional leaders and in accordance with the 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.”
Section
283(c)(i) provides for the appointment of a chief by the President
“in accordance with the traditional practices and traditions of the
communities concerned.” While sections 3 and 4 of the Traditional
Leaders Act [Chapter
29:17]
distinguishes the procedure for the appointment of a Chief and Acting
Chief, the Constitution only mentions the appointment of a chief.
In
terms of section 340(1)(c) of the Constitution, the power to appoint
a substantive office holder includes the power to appoint a person to
act in that office, therefore, according to the new Constitution the
procedure provided for the appointment of a Chief applies to the
appointment of an Acting Chief. Section 340(1)(c) of
the Constitution
reads;
“340
(1)
Except as otherwise provided in this Constitution, a power under this
Constitution to appoint a person to an office includes a similar
power -
(a)…,.
(b)…,.
(c)
To
appoint a person to act in that office;”…,.
Counsel
for the first respondent submitted that the provisions of section
283(c)(ii) of the Constitution has the effect of ousting the court's
jurisdiction to determine issues concerning disputes over the
appointment of chiefs, except the review of the President's
determination of such disputes.
Counsel
for the applicants
submitted
that the court's jurisdiction was not ousted by section 283(c)(ii)
of the Constitution.
While
the court's guard, jealously, against the ousting of their
jurisdiction, it is important for the courts to identify the
intention of the legislature and act accordingly. In this case, from
the use of the word “must” in section 283(c)(ii) of the
Constitution I am persuaded that the Legislature, in drafting the
Constitution, intended to give that responsibility to the President.
My
view is strengthened by the provisions of section 342(1) of the
Constitution which provides as follows;
“342
(1) A power, jurisdiction or right conferred by this Constitution may
be exercised, and a
duty imposed by this Constitution must be performed,
whenever it is appropriate to do so.”….,.
As
already said, the requirement in section 283(c)(ii) of the
Constitution, that disputes concerning the appointment of chiefs
“must be resolved by the President on the recommendation of the
Provincial Assembly of Chiefs through the Minister responsible for
traditional leaders;” imposes a duty on the President and is
indicative of the legislature's intention that only the President
should resolve such disputes.
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.
Counsel
for the applicants further submitted that the provisions of section
283(c)(ii) of the Constitution do not apply to disputes which arise
before the appointment of a Chief or Acting Chief, but only applies
to disputes which arise after a Chief has been appointed.
Counsel
for the second to fourth respondents submitted that the word
“concerning” which precedes the disputes to be resolved which
includes appointment of chiefs, means “about” and “involving”.
This, she argued, means the disputes to be resolved include those
which arise before the appointment of a Chief
or Acting
Chief.
I
agree.
The
use of the word “concerning”, which means something about or
involving the appointment of chiefs, includes disputes which arise
before a chief is appointed as long as they have something to do with
a chief's appointment. The Cambridge Advanced Learners'
Dictionary supports the meaning given by counsel for the second to
fourth respondents. I therefore agree with counsel for the first
respondent and counsel for the second to fourth respondents that the
applicants have come to the wrong forum.
Section
283(c)(i) of the Constitution introduced the involvement of the
Provincial Assembly of Chiefs on whose recommendation the President
appoints chiefs. This means what the applicants wanted to do in terms
of their customs, as regards the nomination of the Acting
Chief,
may be included in the Provincial Assembly's recommendations to the
President. Section 286(1)(a) and (f) of the Constitution provides
that the functions of a Provincial Assembly of Chiefs includes; the
protection, promotion and development of Zimbabwe's culture and
traditions and the facilitation of settlement of disputes between and
concerning traditional leaders. It is therefore within a Provincial
Assembly's mandate to make recommendations about how an Acting
Chief should be nominated under the Budzi clan. This also means the
applicants have alternative remedies through which they can stop the
first respondent's appointment. They can, in addition to presenting
their grievances to the President for resolution, present them to the
Provincial Assembly of Chiefs which can in turn include them in its
recommendations to the President.
The
applicants' application must therefore be dismissed with costs. It
is therefore ordered that;
1.
The applicants' application is dismissed.
3.
The applicants shall pay the respondents' costs.
