The Southern Africa Litigation Centre (SALC) is providing crucial support to Ms Silibaziso Mlotshwa as she undertakes the legal challenge against the constitutionality of the Nguni/Ndebele customary succession principle, which unjustly excludes women from being appointed as Chiefs solely based on their gender. This principle, as it currently stands, infringes upon women’s rights protected by the Constitution of Zimbabwe. Specifically, it violates the rights to equality and non-discrimination, the right to dignity, the right to language and culture, and women’s rights as outlined in the Constitution.

Background

At the heart of this matter is the denial of the first-born daughter’s right to succeed as Chief simply because of her gender. Ms. Silibaziso is an adult woman and the eldest daughter of the late Chief Nyangayezizwe Mvuthu Mlotshwa from the Hwange District. When her father, Chief Mvuthu, passed away in 2014, he left behind three daughters. There was no dispute about Ms. Silibaziso’s status as the eldest child.

The succession process began in 2015 when the District Administrator for Hwange District convened a meeting of elders to nominate the next Chief. The only point of contention during this meeting was whether a woman could become a traditional leader in the Ndebele culture. The Mlotshwa men argued against it, claiming that it was against Nguni/Ndebele traditions and would insult their culture. However, the 2nd Respondent, the District Administrator, pointed out this argument was unconstitutional.

Despite the 2nd Respondent’s advice, the Mlotshwa men maintained that a woman could not be a Chief. They argued that this exclusion was based on biological factors, precisely a woman’s inability to perform specific cultural duties during her menstrual periods. As a result, the Chieftainship was handed to the deceased Chief’s young brother, and the 1st Respondent, his son, was nominated as Chief Mvuthu.

Ms Silibaziso took her case to the High Court to challenge the nomination. Still, the 1st and 2nd Respondents argued that this was not within the High Court’s jurisdiction and should be addressed by the President of Zimbabwe. Although the High Court upheld this argument, it also made a significant finding that the Nguni cultural succession principle, which excluded women from Chieftainship, was unconstitutional.

Undeterred, Ms. Silibaziso appealed this decision to the Supreme Court. The Supreme Court noted that the constitutional issues were not sufficiently addressed in the initial High Court case and advised her to file a constitutional application to determine the constitutionality of the Nguni/Ndebele customary succession principle that discriminates against women based on gender. The matter was not considered res judicata. Consequently, the appeal was withdrawn, and an application for direct access to the Constitutional Court was filed in August 2017.

Remarkably, the 2nd Respondent, the 3rd Respondent (Minister of Rural Development, Preservation and Promotion of Culture and Heritage), and the 4th Respondent (The President of Zimbabwe) indicated that they had no opposition to the application and would respect the decision of the Court.

On 19 September 2017, the High Court issued an interdict preventing the appointment and coronation of the 1st Respondent as Chief Mvuthu while the matter was before the Court. Ms. Silibaziso’s legal team, led by Advocate Thabani Mpofu and Attorney Thulani Ndlovu, filed their arguments, and the application for direct access to the Constitutional Court. The case was presented to Chief Justice Honourable Malaba CJ on 5 December 2017. However, he decided that because the nomination process was still in the discussion phase, it had not reached the point where the President’s final decision could be challenged in court. The Chief Justice explained that if the District Administrator’s recommendations were illegal, a legal action called a mandamus could be taken to force him to act lawfully.

Ms. Silibaziso took her case to the High Court, seeking a mandamus, a legal action asking the court to compel someone to do something. She argued that her mandamus meets the requirements of Zimbabwean law, and it is based on her clear rights, including among others:

• The right to have the 1st respondent (a public official) follow the Constitution when selecting a Chief, as required by the Traditional Leaders Act and the Constitution itself. As the Constitution outlines, she also has the right to bring a mandamus action against a public official.
• Furthermore, she possesses the right to receive equal treatment under the law, and any laws or customs that discriminate against women should be invalidated.
• She contends that her rights are threatened, not just when entirely violated. If someone’s actions go against the Constitution, it is considered a threat to these rights.
• She argues that mandamus is her only recourse because it is the sole way to compel the 1st respondent to act lawfully and nominate her as Chief. No other remedy is available to ensure her rights are upheld in this matter.

On 25 June 2020, the High Court of Zimbabwe handed down a Judgment in Ms Silibaziso Mlotshwa’s favour, ordering that a daughter was entitled to succeed her father as chief. The Court determined that, despite being well aware of constitutional provisions for equality and non-discrimination, the District Administrator carried out his duties under section 3 of the Traditional Leaders Act in a discriminatory manner.

As a result, the Court ruled that the initial nomination by the District Administrator was invalid and mandated that the District Administrator convene a new meeting within 60 days to select a chief. Furthermore, the Court insisted that the District Administrator follow the law during the selection process, adhering to the constitutional principles of human dignity and equality before the law.

The Court compelled the District Administrator to provide legal recommendations to the President concerning the appointment to the Mvuthu Chieftainship, in line with the constitutional requirements of human dignity, non-discrimination, and equality.

News Release

29 June 2020- Zimbabwe High court compels adherence to the constitution in chieftainship selection