MANGOTA
J:
Chikwavadombo
Mastick Marange [“Chikwavadombo”] died on 8 September 2005. He
was the substantive Chief Marange. Two persons acted in his place and
stead, each in turn, after his death. These were one Ringisai Noah
Marange and one Gilbert Marange.
The
first respondent eventually succeeded him as Chief Marange.
The
process of selecting Chikwavadombo's successor was long and
arduous. It commenced at about the time of Chikwavadombo's funeral.
It remained in place for some eleven (11) years running. It ended
with the installation of the first respondent as Chief Marange. The
installation took place on 27 October, 2016. The installation of the
first respondent triggered the present application.
The
applicant alleged that the first respondent was irregularly and
improperly appointed to the position of Chief Marange. He said the
incumbent Chief [“incumbent”] was imposed upon the people of
Marange. The incumbent was, according to him, not the people's
preferred candidate for the position. He stated that the people had
chosen him, and not the incumbent, to be their Chief. He averred that
the second respondent hand-picked the first respondent and imposed
him on the people against the latter's wishes.
He
moved the court to review the work of the second respondent and set
the same aside and, by implication, remove the first respondent from
his position of Chief for the people of Marange.
The
respondents opposed the application.
They
agreed with the first respondent's in limine matter. They submitted
that the court lacked jurisdiction to hear and determine the
application. They anchored their argument on section 283 of the
Constitution of Zimbabwe.
They
stated that disputes which related to the appointment, removal and
suspension of a Chief should be resolved by the third respondent on
the recommendations of the Provincial Assembly of Chiefs through the
second respondent. They insisted that the applicant should have taken
that route instead of approaching the court. He should, they said,
have referred his grievance to the Provincial Assembly of Chiefs for
dealing.
They
moved the court to dismiss the application.
The
application is, in my view, against the second, more that it is
against the third, respondent. The third respondent was not involved
in the selection process which culminated in the nomination of the
first respondent as the substantive Chief Marange. He was, in fact,
presented with a fait accompli. The second respondent who commenced
the selection process and drove it through to the nomination stage of
the first respondent presented the third respondent with a
recommendation upon which the latter had to, and did actually, act.
He had no choice but to endorse his signature upon the recommendation
of the second respondent. The third respondent operated upon the
premise that the second respondent to whom he assigned the
Traditional Leaders Act would not mislead him.
The
respondents missed the point when they submitted that the court
lacked jurisdiction to hear and determine the application.
The
court does have the requisite jurisdiction to inquire into the
conduct of the second respondent. It is, at law, permitted to
scrutinise the process which the second respondent commenced and
drove right through to the nomination by him of the first respondent
as the people of Marange's preferred choice. It should ascertain if
the process which brought about the result which the applicant
complains of was within, or outside, the law.
The
view which the court takes of the matter finds fortification from a
reading of s26 of the High Court Act [Chapter 7:06] [“the Act”].
The section confers power, jurisdiction and authority on the court to
review all proceedings and decisions of inferior courts of justice,
tribunals and administrative authorities within Zimbabwe.
Section
27 of the Act spells the grounds for review. It reads:
“(1)
subject to this Act and any other law, the grounds on which any
proceedings or decision may be brought on review before the High
Court shall be -
(a)
absence of jurisdiction on the part of the court, tribunal or
authority concerned;
(b)
interest in the cause, bias, malice or corruption on the part of the
person presiding over the court or tribunal concerned or on the part
of the authority concerned, as the case may be;
(c)
gross irregularity in the proceedings or the decision.” [emphasis
added]
It
is mentioned in passing that the application was based on sections 26
and 27 of the Act. The application lays criticism on the manner in
which the second respondent went about discharging his duties as the
Minister to whom the President of Zimbabwe assigned the Traditional
Leaders Act. The work of the second respondent is, to all intents and
purposes, an administrative act. He dealt with that work in his
capacity as an administrative authority.
That
work is, therefore, reviewable by the court. It is reviewable to
ascertain if it did not offend any of the above mentioned grounds for
review.
It
is pertinent to stress that administrative acts are subject to
review. The court has the power, authority and jurisdiction to
ascertain whether or not the acts are compliant with the law. Where
they are, they remain undisturbed. Where they are not, the court has
the power and authority to revisit them by either setting aside the
result of the acts or by correcting them so that they remain in sync
with the law.
On
the merits, the applicant gave a clear and concise narration of the
events which led to the appointment of the first respondent to the
position of Chief Marange. His version was easy to follow. He made
every effort to show that he was the preferred candidate for the
position of Chief Marange.
He
attached to his application the supporting affidavits of nine (9)
persons.
He
also attached to the same a letter which the second respondent
allegedly addressed to the Office of the Attorney General on 21 April
2015 and a Cabinet Minute which the second respondent purportedly
drew on 4 May 2016.
He
produced no further evidence which supported his averments apart from
the supporting affidavits of the nine (9) persons, the letter and the
purported Cabinet Minute.
His
case was, therefore, akin to a still birth.
The
supporting affidavits of the nine persons were deposed to on 1
November 2016. Four (4) of the nine (9) persons did, on 10 January
2017, depose to affidavits in which they denied having ever deposed
to affidavits in support of the application. They stated that the
signatures which appeared on the supporting affidavits of 1 November,
2016 did not belong to them. They denied having ever appeared before
any commissioner of oaths to sign the affidavits.
Two
(2) of the four (4) did, on 26 February 2017, depose to affidavits
stating that their depositions to the affidavits of 10 January 2017
were made by them under duress. They said they were taken from their
rural home to Harare where they were accused by an unidentified
physically imposing man of undermining the authority of the
government by supporting the applicant. They said they were told to
make amends and were given drafted affidavits which they were made to
sign and they signed those.
Three
(3) of the four (4) did, on 14 March 2017, depose to affidavits in
which they dissociated themselves from the applicant's case and
cause.
It
is evident, from the foregoing, that the deponents were used as a
means to an end. They were, no doubt, at the mercy of the applicant
and the first respondent. They went along with whoever approached and
sought their support. No weight can be attached to affidavits of
persons who swang from one party to the other like a pendilum. The
affidavits told a lie about themselves. In telling the lie as they
did, they revealed the pressure to which the deponents were subjected
in the parties' respective effort to ascend to the throne.
The
supporting affidavits which the applicant attached to the application
do not, therefore, support anything let alone his case.
The
letter which the second respondent allegedly addressed to the Office
of the Attorney General and the purported Cabinet Minute do carry
very little, if any, weight. Neither the letter nor the Cabinet
Minute was signed by anyone. Their origin was not clarified.
The
applicant did not tell the court what method he used to access the
two documents. They were not for his attention or consumption. They
are privileged documents which are for the attention of no one else
but Cabinet.
The
net effect of the above analysed matters is that the applicant's
case stood on nothing.
He
made allegations which he failed to substantiate.
He
said he was the people of Marange's choice for the position of
Chief. He, however, produced nothing which supported his claim(s).
It
is trite that he who alleges must prove. The applicant alleged. He
did not prove.
The
applicant's case would have been more convincing than it currently
is if he attached to his application minutes of meetings which
members of the house of Marange held in their effort to select the
next Chief Marange. The minutes would have shown the members'
deliberations as well as the person who emerged as the people's
preferred choice for each meeting which was held. These would have
constituted concrete evidence which would have left the court with
little, if any, doubt as to the members' preferred choice.
Whilst
the applicant could not show that he was the people's favourite, he
was able to show the existence of a dispute which reared its ugly
head in the selection process.
The
dispute remained in the process from the time that the second
respondent became alive to it to date. It could not be, and was not,
wished away. The nomination of the first, by the second, respondent
did not put it to rest. It, if anything, escalated it resulting in
the present application wherein the applicant moves the court to
scrutinise the second respondent's work.
The
first respondent, in his wisdom, attached to his opposing papers some
minutes of meetings of members of the house of Marange. He attached
minutes of the meeting of 1 March 2013 as well as those of 15
February 2013. He called them Annexures B and C respectively. The
contents of the annexures showed that the applicant was at same point
kicked out of the race. The relevant portion of the first annexure
reads:
“It
was agreed that if the Zibaba is unclean then he is not eligible to
become chief. The chairperson confirmed about the houses that are
unclean … The houses came out as Dzoma and Manjengwa houses (sic)
committed incest …. As a way forward the houses agreed that they
will continue the selection process using the Zvipomerwa method. The
house found to be unclean will be out of the race---.”
Minutes
of deliberations of the meeting of 15 February 2013 read, in part, as
follows:
“..
they said those Madzibaba should be clean… of which the houses like
Dzoma, Manjengwa and Muchisi were alleged to have some incest cases.”
The
first respondent was wise enough to produce evidence which tended to
show that the applicant fell out of the race. He selected what he
believed would damage the applicant's claim. He left out any
minutes which he considered to have been supportive of the
applicant's case. I say so because the members held more than two
meetings in their effort to select, from among them, a person who
should have become chief Marange. Any minutes, therefore, which
supported the applicant's cause would have assisted him to
substantiate his claims.
That
the applicant was a serious contender in the race to the
chieftainship of Marange requires little, if any, debate. He stated
as much. The second respondent supported his statement in the
mentioned regard. He made a concession in paragraph 40 of his
opposing affidavit. He said “it is admitted that at some point
during this lengthy selection process applicant was nominated but
rejected before appointment owing to infractions stated above.”
The
second respondent held not less than five (5) meetings with the
people of Marange. He held those in an effort to find a candidate
whom the people would accept as their chief. He held the meetings
through his representatives. The meetings did not produce a clear
candidate whom the second respondent could recommend to the third
respondent for appointment to the position of chief Marange.
The
second respondent's next move was to establish commissions of
inquiry.
Three
such commissions were set up, each in turn. The first one's work
took place in June 2014. The second one's work was in August 2014.
The third one did its work on an unnamed date but after August 2014.
The
second respondent's assertions were that the June 2014 commission
of inquiry was set up owing to the inconclusive nature of the
nomination of the applicant as chief. He said the August 2014
commission was established because the previous commission was
inconclusive and did not produce a candidate.
It
was evident to the second respondent that the position of chief
Marange was a hotly contested matter. He stated as much. He said the
Marange chieftainship was bitterly contested. He stated that
Government had, therefore, to be certain on the right candidate
before making the appointment.
The
second respondent's effort was, to some extent, commendable.
Its
shortcoming was that the people whom he chose to drive the process
were not in any way conversant with the customs, cultures and
traditions of the people of Marange.
Both
of them - Mukwaira and Felix Chikovo – had to inquire from the
Marange families the latter's succession customs with regard to the
issue of chieftainship. As inquirers, they did what they thought was
best for the people. They, in the process, cooked a raw deal which
the people of Marange, or at least some of them, refused to accept.
The
dispute which should have been effectively resolved centred on two
contenders. These were the applicant and the first respondent. The
dispute could easily have been conclusively resolved if the second
respondent had acted in terms of s283(c)(ii) of the Constitution of
Zimbabwe. He should, in other words, have referred the same to the
provincial assembly of chiefs.
It
is one of the functions of the provincial assembly of chiefs to
consider and report on any matter which the second respondent refers
to it.
Reference
is made in this regard to s42(3) of the Traditional Leaders Act.
The
Provincial Assembly of Chiefs comprises all chiefs of a given
province. That provincial assembly is better qualified than anyone
else to know the customs, traditions and cultures of the people of
their province. They know what is and what is not taboo. They are,
after all, the recognised custodians of the cultures and traditions
as well as customs of all persons who inhabit their province.
The
work and recommendations of the provincial assembly of chiefs for the
province of Manicaland would properly have guided the second
respondent on the best course of action for him to take. The
provincial assembly of chiefs would have looked at the contenders'
profiles, each in turn, the infractions they were alleged to have
committed and any other matter which was relevant to the resolution
of the dispute. It would have made its recommendations upon which the
second and third respondents would have properly acted in a
conclusive manner.
The
contenders' dispute appeared to have surfaced at about the time of
the funeral of Chikwavadombo. It, however, became apparent to the
second respondent in 2008 and the subsequent years. The method which
he adopted for a resolution of the same prior to the birth of the
country's current constitution was above board. However, when the
dispute spilled into the promulgation of the Constitution of Zimbabwe
Amendment [No. 20] Act of 2013 his work became a lot easier than it
was during the old constituion.
The
second respondent should have realised that he could not continue to
employ the old method of resolving the dispute. He should have
realised that section 283 of the new constitution offered him a clear
guide which he could not ignore.
The
drafters of the new constitution made every effort to have disputes
of the present nature referred to the custodians of people of the
province's cultures, customs and traditions. They realised that
such custodians are better placed than any outsider in interpreting
vague situations which tend to arise on matters of customs and
traditions and resolving disputes which, more often than not, tend to
arise when a person, or persons, aspire(s) to be appointed to the
position of chief of a people. They, therefore, stated in unequivocal
terms that such disputes be resolved by the President on the
recommendation of the Provincial Assembly of Chiefs through the
Minister responsible for traditional leaders, the second respondent
in casu.
The
constitutional provision makes the second respondent's work a lot
easier than it was in the past.
The
moment he realises that a dispute which relates to the appointment
to, suspension, succession and/or removal of, a person from, the
position of chief is at hand, he should refer such to the provincial
assembly of chiefs for its attention. His next move is to receive the
provincial assembly of chiefs' recommendation which he will, in
turn, forward to the President of Zimbabwe who will act upon the
same.
The
route which the respondents urged the applicant to take in casu is
the same route which the second respondent should have taken when he
became alive to the dispute which existed between the applicant and
the first respondent. Section 283 of the Constitution was already in
place when he nominated and recommended the first, to the third,
respondent for appointment to the position of Chief Marange. The
commissions of inquiry which the second respondent established in
June and August 2014 are not provided for in the Traditional Leaders
Act let alone in the current Constitution of Zimbabwe. They were
illegally set up and the result of their work was or is a nullity. It
is at one such commission of inquiry that the first respondent was
identified as a suitable candidate for the position of chief Marange.
The work of the commission which identified him as such offended s283
of the Constitution of Zimbabwe.
The
commission acted outside the law and so did the second respondent. He
did not have the jurisdiction to act as he did. His work was ultra
vires the constitution.
The
constitution is the supreme law of Zimbabwe. Any law, practice,
custom or conduct which is inconsistent with it is invalid to the
extent of the inconsistency. The doctrine of supremacy of the
constitution is sacrosanct. It is immutable.
The
work of the second respondent was frought with an illegality. It is
invalid. It is a nullity. It cannot, therefore, stand.
The
long and short of the stated position is that the event of 27 October
2016 should be undone.
The
second respondent who is already alive to the dispute of the
applicant and the first respondent will have to revisit the matter
which relates to the appointment of substantive Chief Marange. He is,
in the mentioned regard, properly guided by s283 of the constitution
of Zimbabwe as read with s42(3)(b) of the Traditional Leaders Act.
It
is not known when the provincial assembly of chiefs to whom the
second respondent will, in terms of the law, refer the dispute will
complete its work. Paragraph 2 of the draft order which places an
obligation on the third respondent to appoint a substantive chief
within sixty (60) days of the date of the order cannot stand. The
paragraph is, therefore, struck out. The matter which relates to that
aspect of the process is better left open than closed.
The
court has considered all the circumstances of this case. It is
satisfied that the applicant proved his case on a balance of
probabilities. It is, accordingly, ordered that:
1.
The appointment of the first respondent as the substantive chief
Marange be and is hereby set aside.
2.
The first and second respondents shall pay the costs of this
application.
Warara
& Associates, applicant's legal practitioners
T
Pfigu, 1st respondent's legal practitioners
Civil
Division of the Attorney General's Office, 2nd & 3rd
respondent's legal practitioners
