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."

Section 2 of the Constitution provides for the supremacy of the Constitution and places an obligation on every person to whom such obligations have been imposed to fulfil such obligations. Section 283 of the Constitution places an obligation on the President to deal with disputes concerning appointment, suspension and removal of traditional leaders. In terms of s 2 of the Constitution that obligation is binding upon him and must be fulfilled by him.

The present application has been overtaken by events. The recommendations have already been followed. Such recommendations could have been attacked before the President had considered them in order to prevent the appointment of the first defendant of Chief Mapanzure. This is not so. What is now a reality is that the President's decision stands and is the decision to be challenged. It can be argued that the present application has been overtaken by events. The plaintiff cannot ignore the appointment which has already taken place. I am of the view that once the President has already appointed a Chief, then failure to cite him is fatal to the proceedings, as nullification of recommendations effectively means nullification of the appointment of Chief Mapanzure.

Let me now deal with whether s 283 ousts the jurisdiction of this Court? I understand an ouster clause as a provision within a piece of legislation by a legislative body to exclude judicial review of acts and decisions of the executive. This is done by expressly taking away from the courts its supervisory judicial function. The doctrine of separation of powers enables the judiciary to keep the executive in check by ensuring its acts and decisions comply with the law. Ouster clauses on the other hand preserve the powers of the executive and promote the finality of its acts and decisions. Section 283 has simply given the President powers to deal with disputes concerning appointments, removal and suspension of chiefs. There is no express provision ousting the court's jurisdiction. In the British case of Anisminic Ltd v Foreign Compensation Committee [1969] 2
AC 147, the House of Lords held that an ouster clause cannot prevent the courts from scrutinising an executive decision that due to an error of law is a nullity. In India ouster clauses are always almost rendered ineffective as judicial review is regarded as part of the basic structure of the Constitution that cannot be excluded. This is so because in carrying out reviews the courts do not concern themselves usually with the substantive merits of an act or decision by a public authority, but with its legality, rationality and procedural propriety. I read s 283 as granting the President powers to deal with issues involving appointment and removal of chiefs. It is my considered view that in carrying out such functions the President is still subject to all the provisions of the Constitution. That means it is possible that the President can go wrong and I am thus of the view that his decision is subject to review by the courts within those limited grounds enunciated in Moyo v Mkoba & Ors 2013 (2) ZLR 137 (S). Legitimacy of such decision is still reviewable.

It is also pertinent to note that s 283 provides that an Act of Parliament must provide for the procedures to be followed in the appointment, suspension and removal of chiefs. It should also provide for the resolution of dispute concerning such appointment, suspension and removal of traditional chiefs. The Traditional Leaders Act [Chapter 29:17] though in place has not yet been aligned with the constitutional provisions. There is need to urgently align the Act to the provisions of s 283 of the Constitution.

Otherwise, I am of the view that this Court enjoys a discretion to hear a matter where domestic remedies have not yet been exhausted. See Ramani v NSSA
SC 38-03 (unreported). The plaintiff ought to provide a satisfactory explanation and show good cause why the court should hear the matter before plaintiff has exhausted such remedies. Herein the plaintiff argued that because the provisions of the Traditional Leaders Act have not been brought into conformity with the provisions of s 283 of the Constitution, no adequate remedy is provided by the existing Act. I am of the view that this is not a case where the High Court can safely use its discretion and hear the matter.

Paragraph 10 of the Sixth Schedule to the Constitution provides:

"10 Continuation of existing laws

Subject to this Schedule all existing laws continue in force but must be construed in conformity with this Constitution."

Paragraph 11 deals with interpretation of existing enactments. In that paragraph the Constitution stipulates for example that:

"(f) the Prison Service must be construed as a reference to the Prisons and Correctional Service;

(g)-(h) ...;

(i) the Comptroller and Auditor-General must be construed as a reference to the Auditor-General."

In the above paragraph there is no mention of Council of Chiefs being construed as the National Council of Chiefs. However, s 283 provides that recommendation must be done by the Provincial Assembly of Chiefs. The Traditional Leaders Act provides for such Provincial Assembly of Chiefs. The argument by the plaintiff that the Act is not in conformity with the Constitution for purposes of recommendations by the Provincial Assembly of Chiefs is therefore not correct. It is still possible for the plaintiff to first lodge its complaint with the Provincial Assembly of Chiefs.

I am thus of the view that the plaintiff has not exhausted domestic remedies and should do so first before approaching this Court. Such domestic remedies are adequate, available and satisfy the requirements of s 283 of the Constitution.

In the result I find as follows:

(1) The points in limine are well taken and succeed.

(2) The matter is improperly before this court.

(3) The plaintiff is to pay costs of this application.

Kawonde Legal Services, plaintiff's legal services

Civil Division of the Attorney-General Office, second - fourth defendant's legal practitioners