This
matter, which concerns the removal of a chief, was placed before me
for trial. Section 283 of the new Constitution,
Constitution
of Zimbabwe Amendment (No.20) Act 2013,
now deals comprehensively with the appointment and removal of chiefs
as well as with any disputes pertaining thereto. With the leave of
the court, heads of argument were submitted by counsel for the
plaintiff and the fifth defendant in order to determine if the trial
could proceed in light of this provision.
By
way of a brief background, the plaintiff's claim is for an order:
“1.
Declaring that the customary principles of succession to the Murinye
chieftainship were not observed nor given due consideration in the
appointment of the 5th
defendant as Chief Murinye.
2.
Directing the 4th
Respondent (plaintiff
appears to use Defendant and Respondent interchangeably although this
matter was brought by way of action)
(sic)
to forthwith make a recommendation to the President for the removal
of the 5th
Respondent (sic)
from chieftainship of the Murinye clan.
3.
Directing the 1st,
2nd,
3rd
and 4th
Defendants to cause a meeting of the eligible elders of the Murinye
clan to be convened to elect the most eligible candidate from the
MUNODAWAFA house for appointment as the next Chief Murinye.
4.
Directing the 1st,
2nd,
and 3rd
Defendants to record the conclusions of the meeting of the eligible
elders of the Murinye clan and forward to the 4th
Defendant and form the basis for a recommendation to the President on
the appointment of the next Chief MURINYE.
5.
For the payment of costs by the Respondents (sic),
jointly and severally, the one paying the other being absolved.”
The
new Constitution provides as follows in section 283;
“283
Appointment and removal of traditional leaders
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.”
THE
PLAINTIFF'S ARGUMENT
The
plaintiff's position is that section 283(c)(ii) does not take away
the jurisdiction of the court to hear the case. He draws strength
from the provisions contained in the 6th
Schedule of the new Constitution, in particular section 18(9) which
provides as follows:
“All
cases, other than pending constitutional cases, that were pending
before any court before the effective date may be continued before
that court or the equivalent court established by the Constitution,
as the case may be, as if this Constitution had been in force when
the case were commenced, but -
(a)
The procedure to be followed in those cases must be the procedure
that was applicable to them immediately before the effective date;
(b)
The procedure referred to in subparagraph (a) applies to those cases
even if it is contrary to any provision of Chapter 4 of this
Constitution.”
The
plaintiff further relies on subsection 18(10)(b) which provides that:
“For
the purposes of subparagraph (9) -
(a)…,.
(b)
A civil case is deemed to have commenced when the summons was issued
or the application was filed, as the case may be.”
As
such, the plaintiff therefore points out that it initially issued
summons on 23 September 2009, under HC4455/09, and, following an
application for joinder, summons were re-issued again on 16 September
2011 under the present matter as case no. HC8352/11. The plaintiff's
point, therefore, is that these summons essentially precede the new
Constitution. According to the plaintiff, the matter therefore falls
to be dealt with in terms of the procedure laid out in section 18(9)
and (10) of the 6th
Schedule since the Constitution came into full effect on the 22
August in 2013.
The
plaintiff further relies on the case of Gurta
v Gwaradzimba NO
HH353-13
for illustrating the Constitutional point that the procedure to be
adopted in such cases is that which was applicable at the time.
THE
5TH
DEFENDANT'S ARGUMENT
The
essence of the fifth defendant's argument is that the new
Constitution clearly uses the word MUST in directing that such
disputes be resolved by the President. It is argued that the word is
peremptory rather than directory and requires strict compliance. The
first defendant cites the cases of Sutter
v Scheepers
1932
AD 165…,
and
also
that
of The
Minister of Environmental Affairs and Others v Pepper Bay Fishing
(Pvt) Ltd
2003
All SA 1 SCA for its point on the peremptory nature of the word.
Also
put forward by the fifth respondent's counsel is the incompetency
of the relief sought in light of the principles provided for in the
Constitution. It is pointed out this court is being asked to make a
recommendation for the removal of the fifth defendant when the
Constitution clearly stipulates how such recommendation is to be made
to the President….,.
The
emphasis by the fifth defendant's counsel is, therefore, that it
being clear that applicable principles are those in the new
Constitution, it is the President, according to these principles, who
has original jurisdiction in resolving any disputes relating to a
Chief. It is therefore maintained that this court cannot hear this
matter in preference to the President who is so mandated by the
Constitution. It is the fifth defendant's position that in the
absence of his pronouncement, it will be premature for this court to
step in. Legal doubt is further expressed as to whether even if such
pronouncement were made, this court could still review the
President's decision.
THE
EFFECT OF SECTION 18(9) OF THE 6TH
SCHEDULE
This
matter indeed falls within the ambit of a non-constitutional matter
which was pending at the time the new Constitution came into force.
As such, as exhorted by section 18(9) of the 6th
Schedule, it is to be continued “as if the new Constitution was in
place when the action was commenced.”
There
is no doubt that the principles to be applied to the case are those
of the new Constitution. The wording of section 18(9) is clearly
designed to ensure that such cases, commenced prior to the new
Constitution coming into force, are subjected to constitutional
standards. In this instance, the new Constitution provides the
channels which must be followed for the appointment, removal and
suspension of a Chief in section 283(c)(i). It also articulates the
channels that must be followed in disputes concerning the appointment
suspension and removal of a chief, in section 283(c)(ii).
As
regards to disputes,
section 283(c)(ii) of the Constitution makes it clear that the
President must deal with such disputes and that the recommendation
must come to him through the Provincial Assembly of Chiefs and the
Minister responsible for chiefs. In other words, the Provincial
Assembly of Chiefs actively plays a role in the resolution of the
dispute in accordance with the traditional practices and traditions
of the communities concerned. It is their efforts or recommendations
which are then communicated to the Minister who, in turn,
communicates with the President for action.
As
regards the appointment, removal,
and suspension of a chief, as distinct from any dispute, section
283(c)(i) of the Constitution stipulates that the President is,
again, the one who must act on the recommendation of the following:
the Provincial Assembly of Chiefs through the National Council of
Chiefs and the Minister responsible for chiefs.
The
starting point is, therefore, at the provincial level. Among the
duties of the National and Provincial Council of Chiefs, as
stipulated in section 286(1)(f) of the new Constitution is “to
facilitate the settlement of disputes between and concerning
traditional leaders”. This is clearly a dispute which falls within
their mandate in terms of their role in facilitating resolution since
it concerns a traditional leader.
THE
IMPORT OF SECTION 283 OF THE NEW CONSTITUTION
The
next issue for consideration is whether the above provisions
therefore oust this court's jurisdictions as argued by the fifth
defendant's counsel.
In
the recent case of Gambakwe
and Ors v Chimene and Others
HH465-15, UCHENA J discussed the import of section 283(c)(ii) of the
Constitution regarding the resolution of disputes. In dealing with an
urgent matter placed before him, which involved a dispute pertaining
to chieftaincy, he made the following remarks pertaining to the ambit
of this section:
“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…,. I therefore
agree with Mr Dondo and Ms Hove that the applicants have come to the
wrong forum.”
UCHENA
J seems to suggest that the courts have no jurisdiction.
In
cases such as this, where the President has the ultimate discretion
on whom he appoints as Chief in terms of both the Constitution and
the Traditional Leaders Act [Chapter
29:17],
what is reviewable by the courts, as stated in the case of
Chagaresango
v Chagaresango
2000
(1) ZLR 99 (S),
is not how the President exercises his discretion but whether those
who formulate their advice to him, acted on sound principle. The
Minister's advice which he relays to the President is said to be
reviewable on three grounds, namely, illegality; irrationality; and
procedural impropriety. See Rushwaya
v Minister of Local Government & Anor 1987
(1) ZLR 15 (S)…, and Gorden
Moyo v Stephen Mkoba & Ors
SC35-13.
What
would thus be reviewable in the present matter would be the
Minister's advice in accordance with the channels stipulated in
section 283(c)(i) and (ii) of the Constitution.
Constitutionally
too, as provided for by section 171, the High Court has inherent
jurisdiction to hear all civil and criminal matters throughout
Zimbabwe. The High court is therefore always a forum of jurisdiction
that can be selected by the parties and the court will exercise its
jurisdiction where
it is clear that it should.
Critically, however, where domestic remedies for resolving the issue
are provided, as in the case before me, the court will want to know
why it should exercise its inherent jurisdiction if such remedies
have not been exhausted. For the court's jurisdiction to be
completely ousted would require a specific provision to that effect.
The
key point therefore is that where a remedy is provided, it is indeed
within the court's power to insist that the remedy be exhausted
before it will intervene in the appropriate manner permissible. It
would otherwise make no sense to ignore the fact that remedies are
provided and constitutionally so in this case. The starting point,
for coherence and clarity, is therefore to ensure that such remedies
have been exhausted as a prelude to the court's intervention so
that the court is essentially coming in where it should and in the
manner that it should….,.
The
import of the provisions of the new Constitution on issues relating
to disputes and the removal of chiefs that were filed before its
coming into effect are such that the procedures in section
283(c)(i)(ii) are to be applied in the face of a dispute. This is a
natural consequence of the mandate to apply the provisions of the new
Constitution to all cases that were pending. There is no escaping
that reality.
There
is no reason why the remedies provided in section 283(c)(i) and (ii)
of the new Constitution cannot be exhausted. I therefore decline to
hear this matter.
Accordingly,
the matter is dismissed with costs.
