This
matter came before me as an urgent chamber application. I then set it down
and heard the parties' legal practitioners on 26 August 2013. After
hearing the legal practitioners I dismissed the application with costs. On 13
September 2013, the applicant's legal practitioners…, wrote to my clerk
requesting that I give reasons for my ...
This
matter came before me as an urgent chamber application. I then set it down
and heard the parties' legal practitioners on 26 August 2013. After
hearing the legal practitioners I dismissed the application with costs. On 13
September 2013, the applicant's legal practitioners…, wrote to my clerk
requesting that I give reasons for my decision to dismiss the
application. These are they.
In his
urgent application filed on 21 August 2013, the applicant sought the following
relief:
“FINAL
ORDER SOUGHT
1. The
respondent be and is hereby interdicted from uttering any hate language
denouncing me and my political party.
2. The
respondent be and is hereby ordered to stop forthwith engaging in any political
activities in Masvingo West Constituency.
3. The
respondent shall pay costs of suit on attorney-client scale.
INTERIM
ORDER
1. That
pending the determination of the final order the respondent is interdicted
from;
(i)
Coercing his subjects from attending political meetings or rallies.
(ii)
Threatening his subjects with death or evictions for supporting applicant and
MDC-T.
SERVICE
OF THE INTERIM ORDER
The
applicant's legal practitioners be and are hereby given leave to serve this
provisional order on the respondent.”
The
applicant herein was a candidate in the harmonized elections conducted on 31 July
2013. He contested and lost the Masvingo West National Assembly
seat. He contested the seat on the ticket of the Movement for Democratic
Change (MDC-T) led by the former Prime Minister Morgan Tsvangirai. In his
founding affidavit, he states that he has since filed a petition with the
Electoral Court under case number EC35/13 challenging the results of the
election on the basis of “multiple electoral malpractices and irregularities
which marred the election.”
The
respondent, whom the applicant alleges to have “continued to conduct meetings
and/or rallies in the Masvingo West Constituency denouncing him and his party
MDC-T,” is a Traditional Chief in the Constituency. The respondent is also the
President of the Traditional Chiefs' Council in Zimbabwe.
The applicant
averred that after the elections the respondent continued to conduct meetings
for people to attend what he called “Partisan Political Meetings.” These
meetings, the applicant went further, were in turn addressed by the ZANU-PF
winning candidate, Mr Ezra Chadzamura. In paragraphs 10-15 of his founding
affidavit, the applicant states as follows:
“10.
I am advised by my legal practitioners of record, and such advice I accept,
that the office of the Chief is an apolitical office and Chiefs are primarily
there to promote unity and social cohesion not to be an extension of any
political party or candidate.
11.
In this context, the actions by the respondent to force-march villagers
meetings and denouncing me are illegal and should be stopped as a matter of
urgency.
12.
Masvingo West Constituency is a relatively rural community and conservative
where Chiefs are held in high esteem as vanguards of traditional norms and
values and the continued meddling in political affairs of this constituency by
the respondent is thus an evil political mechanism which is designed to exert
undue pressure on the electorate, against me, and my political party, such that
even in the event that my election petition is successful, it would not be
conducive to hold a fresh election anytime soon because the electorate would
still be in deep slumber of intimidation and threats by respondent.
13.
I am also of the view that since I have filed an Electoral Petition and amongst
my grounds is the fact that the respondent has been intimidating people to vote
for ZANU PF, it is in the best interests of justice to have respondent stopped
since I may be prejudiced in the event of the Electoral Court nullifying the
elections of July 31st 2013 in Masvingo West Constituency and
ordering a re-run.
14.
A Chief, as a social leader, should not utter hate language like “Down with
Takanayi Mureyi” rather, he is supposed to unify people beyond their political
orientation. His open support for ZANU PF as evidence by affidavits of the
concerned subjects annexed hereto marked Annexure “B1, - B8” wherein he has been intimidating and
jointly giving eviction and death threats to villagers with ZANU- PF winning
candidate for the Constituency is completely unacceptable, unlawful and
unconstitutional.
15.
My right to seek an order from the Honourable Court to bar the Chief from
intimidating villagers and giving an advantage to one political party at the
expense of another is well established since I am a Politician, I was a
candidate in this particular constituency and I have a direct interest in this
matter as I am awaiting ruling on my Electoral Petition and my supporters have
been the prime targets of the respondent.”
Indeed,
in support of his case, the applicant produced a number of affidavits from
villagers in the Masvingo West Constituency. In some of the affidavits,
the villagers recount their experiences - mainly before the harmonised
elections referred to above. Given the alleged conduct of the respondent,
the applicant sought the relief indicated…., herein (re: interdict against the
respondent).
Consel
for the applicant correctly argued that the new Constitution did not allow the
respondent to conduct himself in the manner he was alleged to be doing. He
said, notwithstanding the fact that some of the affidavits from the villagers
dealt with experiences prior to the elections, there was still ample evidence
showing that the respondent had, after the elections, continued to conduct
himself in the manner alleged in this application. He did not agree that granting
the application was tantamount to supporting the applicant's petition already
before the Electoral Court. He therefore urged the court to grant the
relief sought.
There
were no opposition papers filed but counsel for the respondent submitted that
the respondent denied the allegations of threats and intimidation directed
against the applicant and other villagers. He said the relief sought was
meant to support the applicant's petition already before the Electoral Court in
that if the order prayed for in casu were granted
that would be confirmation of the applicant's allegations.
Counsel
for the respondent argued that the effect of the relief sought would also
interfere with the respondent's role as a Traditional Chief. He said the
respondent, as a Chief, had to address his people from time to time. He agreed
that the Constitution did not allow the respondent to engage in politics but
the allegations in casu were not admitted and
therefore the respondent should be allowed access to his people as provided for
in the Traditional Leaders Act [Chapter 27:17]….,.
There
is no issue regarding the Constitutional provision which disables the
respondent from engaging in politics. Section 281(2) of the Constitution
of Zimbabwe Amendment (No.20) Act 2013 provides as follows:
“(2)
Traditional leaders must not -
(a)
Be members of any political party or in any way participate in partisan
politics;
(b)
Act in a partisan manner;
(c)
Further the interests of any political party or cause; or
(d)
Violate the fundamental rights and freedoms of any persons.”
Section
282(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 then spells
out the functions of traditional leaders, such as the respondent, as follows:
“Functions of traditional leaders
(1)
Traditional leaders have the following functions within their areas of
jurisdiction -
(a)
To promote and uphold the cultural values of their commodities and, in
particular, to promote sound family values;
(b)
To take measures to preserve the culture, traditions, history and heritage of
their communities, including sacred shrines;
(c)
To facilitate development;
(d)
In accordance with an Act of Parliament, to administer Communal Land and to
protect the environment;
(e)
To resolve disputes amongst people in their communities in accordance with
customary law; and
(f)
To exercise any other functions conferred or imposed on them by an Act of
Parliament.”
I
want to believe that, in the main, the execution of the above functions
necessitate the holding of public meetings – which meetings, of course, should
not be for the purposes of;
“(a)
Furthering the interests of any party or cause; and
(b)
Violating the fundamental rights and freedoms of any person.”
The
allegations in casu suggest that the respondent
proceeded to do (a) and (b) above. As already indicated, that was
denied.
It
is clearly illegal to conduct oneself as alleged.