By Ray Matikinye
THE recent displacement of a family in Uzumba-Maramba-Pfungwe (UMP) district in Mashonaland East from the area by Chief Tedius Matambanashe for allegedly supporting the opposition Movement f
or Democratic Change (MDC) will be seen as a disturbing consequence of government’s decision to repose wide-ranging legal powers in the hands of traditional leaders.
Reginald Marongedza’s family of eight was evicted from its homestead and banished from the area because relatives had misrepresented his political affiliation to traditional leader Matambanashe.
But Marongedza (29) maintained that envious relatives had fingered him to enable them to gain a piece of land he had inherited.
“They have taken my land and my livestock are being kept at a friend’s home. They are jealous because I occupy a very big piece of fertile land and own many beasts,” he told a local daily.
In the early 80s when government established village community courts as an adjunct of the grassroots legal system, one such court in rural Mount Darwin ruled that a villager compensates his neighbour with an ox-drawn cart and eight head of cattle for letting his dogs maul the neighbour’s goat.
Although the community court system was disbanded due to incompatible judgements, two decades down the line government is keen to revive an amended traditional justice system.
In October last year Local Government minister Ignatious Chombo announced the upgrading of chiefs’ status, giving them powers to preside over cases with a monetary value of up to $100 million.
“Chiefs’ powers have been eroded over time and government has since agreed that these powers be restored,” Chombo told a ceremony at Brunapeg, 14km from the Zimbabwe-Botswana border. “The decision to upgrade their juridical status is just one of the initiatives to empower them.”
Chombo said the Traditional Chiefs Act would be amended to establish chiefs’ provincial and national courts of appeal to hear appeals by litigants.
He declared: “Gone are the days when customary cases were taken to the criminal courts.”
Social scientists are worried that the new arrangement could scuttle fair administration of justice, particularly among simple peasants whose security of tenure in communal areas is often dependent on the whims of traditional leaders.
More importantly, the complex array of land tenure relations in the communal areas is underpinned by the fact that although the chiefs act like feudal lords, this class of mediators is made to believe they are owners of the land yet the state effectively has title to all land.
Some chiefs have uncodified laws, quaint rules and regulations pertaining to the areas under them. For instance, a chief in the Bota area of Bikita demanded from bereaved families a hindquarter from every beast slaughtered to feed mourners. In other areas peasants are fined for burying their dead without having made prior notification of the deceased’s illness to the chief. There is a host of petty dos and don’ts that affect peasants.
Law experts have questioned the ability of chiefs to dispense justice, considering that they were not trained in law.
“There is no way they can handle those cases because they (chiefs) are not trained in law,” said constitutional law expert and lecturer Lovemore Madhuku said. “You cannot just emerge from chieftainship to practising law.
“It’s a political strategy by Zanu PF to give chiefs powers to campaign but at the expense of justice,” Madhuku said.
He said the increase in jurisdiction was a mistake.
MDC secretary-general and law expert Welshman Ncube said chiefs should not work parallel to formal courts.
“Chiefs were appointed to deal only with customary and traditional cases,” Ncube said.
He said any disputes outside the customary law and proper courts should be handled within the traditional framework. “It would be fundamentally wrong for chiefs to deal with cases outside customary law.”
Claude Mararike of the Faculty of Social Sciences at the University of Zimbabwe says although there is need to improve the role and operations of chiefs, greater caution should be taken to prevent abuse of any authority granted.
“Chiefs are unable to operate effectively because of the dualism of using Roman Dutch Law as the basis of our legal system and the traditional system of government which has been in place for a long time,” he says.
Mararike warns of latent problems. “There could be serious problems unless the traditional system of government is clearly separated from the political party system whereby chiefs are expected to act in a partisan way,” he says, adding: “Chiefs would be more comfortable if they were not used as tools by political parties and politicians.”
Traditional chiefs in Zimbabwe have unwittingly become hatchet men for the ruling Zanu PF party, acting as coercing agents during elections.
Government is keen to reward the chiefs for their role in frog-marching poverty-stricken peasants in rural areas to polling booths so as to determine their voting patterns.
So far, the Traditional Chiefs Act has reposed the maintenance of law and order in traditional chiefs’ hands in their areas of jurisdiction. It is in the process of being amended to allow judgements passed at the chiefs’ traditional court to become incontestable in the magistrates’ courts, unlike in the past.
The Rural District Councils Act was amended as well to restore powers to allocate land in resettlement areas that were taken away from tradition chiefs in 1982 when rural district councils were established.
Few traditional leaders have legal training to dispense modern forms of justice.
Mararike said the institution of chiefs needs to be reviewed to ensure that it moves with the times.
“Young, educated and professional men should be appointed as chiefs otherwise the current crop would need support staff to dispense justice without biases among rural communities,” Mararike said.
Analysts say government has diminished the institution of chiefs by transforming them into political tools for the ruling party just as it would wish with all civil servants.President Robert Mugabe is willing to sacrifice Zimbabwe’s economic wellbeing by pampering traditional chiefs more to retain their support than respect for their aptitude to dispense justice, they say.
Expressing the chiefs’ gratitude and at the same time exposing fears that the expedient largesse could cease when Mugabe goes, president of the Chiefs’ Council, Chief Jonathan Mangwende, implored the ageing leader to maintain his grip on power.
“We made a splendid job of campaigning for you during the presidential election and my colleagues are disturbed by rumours that you want to retire. We want you to stay,” Mangwende told an annual chiefs’ conference in Bulawayo last year.
They have since been issued with vehicles at heavily subsidised prices that will be fuelled by money from peasants fined for numerous offences over which chiefs now enjoy jurisdiction.
Most of the chiefs have also had their homesteads electrified and boreholes sunk to make them as amenable to Zanu PF’s whims as possible.