MEKI v ACTING DA MASVINGO PROVINCE & ORS

HIGH COURT, HARARE

[Special Plea HH 614-16]

July 26 and October 19, 2016

MATANDA-MOYO J

Administrative Law – Review – Review jurisdiction of the High Court – Whether ousted by section 283 of the Constitution of Zimbabwe, 2013.

The plaintiff sought the setting aside on review of the recommendations by the defendants which recommendations resulted in the appointment of the first defendant as Chief Mapanzure. The defendant argued that s 283 (c)(iii) of the Constitution of Zimbabwe, 2013 ousts the jurisdiction of the courts to review decisions concerning the appointment, suspension and removal of chiefs.

Held, that s 283 of the Constitution grants the President the power to deal with issues involving the appointment and removal of chiefs. In carrying out such functions, the President is still subject to all the provisions of the Constitution and his decision is subject to review by the courts.

Cases cited:

Anisminic Ltd v Foreign Compensation Committee [1969] 2 AC 147; [1969] 2 WLR 163, referred to

Moyo v Mkoba & Ors 2013 (2) ZLR 137 (S), referred to

Ramani v NSSA SC 38-03 (unreported), referred to

Legislation considered:

Constitution of Zimbabwe, 2013, ss 2, 283, 283 (c)(iii), Sixth Schedule paras 10, 11

Traditional Leaders Act [Chapter 29:17]

P Kawonde, for the plaintiff

Ms R Chandura, for the second – fourth respondents

MATANDA-MOYO J:

The plaintiff sued the defendants for the following relief:

(1) An order declaring that the second, third and fourth defendants acted contrary to custom when they recommended to the President of the Republic of Zimbabwe, the appointment of the first defendant as Chief Mapanzure.

(2) An order setting aside the recommendations and in place an order that the fourth defendant transmit to the President recommendations for the removal of the first defendant from the post of Chief Mapanzure.

(3) An order that the fourth respondent appoint an individual or a body as he may so please, to oversee the consultative process leading to the appointment of the next Chief Mapanzure which individual or body shall take the place of the second defendant. Such body to start a new process of who is eligible to become Chief.

In other words, the plaintiff seeks the setting aside of the recommendations by the defendants to the President which recommendations resulted in the appointment of the first defendant as Chief Mapanzure. The plaintiff alleges that in coming up with such recommendations the defendants disregarded and failed to follow the customary principles of appointing a Chief.

The plaintiff seeks the setting aside of such recommendations and in place an order the fourth respondent instead recommends to the President the removal of the first defendant from the post of Chief Mapanzure.

The defendants filed a special plea in bar to the plaintiff’s claim. They mainly challenged the non-citing of the President as fatal to the proceedings and secondly that this Court has no jurisdiction to hear disputes of this nature. The defendants pleaded that s 283 (c)(iii) of the Constitution of Zimbabwe, 2013 (“the Constitution”) has the effect of ousting this Court’s jurisdiction to determine issues concerning disputes over appointment, suspension and removal of chiefs. Let me firstly deal with the non-citing of the President as a party to these proceedings. It is common cause that the President has not been cited as a party to these proceedings. It is also common cause that the first defendant has already been appointed as Chief Mapanzure by the President.

The plaintiff argued that he did not cite the President because he seeks no relief against the President. What he seeks reviewed are recommendations by the defendants to the President. It is those recommendations he wants declared a nullity. The President has no interest in such recommendations and does not play any role in coming up with the recommendations. I do not believe a court can dismiss an action for failure to cite a party, until after an objection a reasonable time is accorded to the other party to join such a person to the proceedings. However, because the appointment has already been done I am of the view that the President ought to be joined in the proceedings.

The only and real issue falling for the determination is whether this Court’s jurisdiction has been ousted in terms of s 283 (c)(iii) of the Constitution on disputes involving appointment, suspension and removal of chiefs.

Section 283 of the Constitution deals with the appointment and removal of traditional chiefs. It provides:

“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.”

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