A law, including a law to amend the constitution, is not created in a vacuum. The political environment in which it was produced needs to be considered. A government with a history of abusing human rights should not be surprised if the abused persons are sceptical about its assertions that the new law is necessary to protect legitimate interests of the public and will not be used to suppress the rights of certain persons and institutions.
A seemingly politically-neutral law that is supposed to protect the interests of all persons in a state can be applied in a discriminatory way. For example, a public order offence could be applied to suppress legitimate political opposition and not applied to supporters of the ruling party.
It is dangerous to evaluate laws only by asking whether they were passed correctly by using the prescribed parliamentary or constitutional process. This is because there is a difference between procedural legitimacy and moral legitimacy. A law can be perfectly valid in form yet profoundly unjust in substance. History is full of examples where oppressive regimes used legal processes to commit grave violations of human rights.
Chiefs and other traditional leaders are unelected, hereditary figures who serve as the primary local governance structure in rural areas, acting as custodians of cultural values, customs, and communal lands while also performing administrative and judicial functions within their communities.
In rural Zimbabwe, chiefs control land allocation and access to communal resources and resolve disputes. They are required to cater for the needs of all villagers under their jurisdiction regardless of the political parties they support.
Traditional leaders are directly represented in Parliament. Section 65 of the 2013 Constitution provides the Senate consists of eighty Senators, of whom sixteen are chiefs, of whom two are elected by the provincial assembly of chiefs from each of the provinces, other than the metropolitan provinces, into which Zimbabwe is divided and the President and Deputy President of the National Council of Chiefs.
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The 2013 Constitution emphatically provides that traditional leaders must not be members of any political party or in any way participate in partisan politics or act in a partisan manner or further the interests of any political party.
Clause 21 of Constitutional Amendment No.3 Bill seeks to repeal Section 281(2). If this amendment is passed, traditional leaders would in future be allowed to freely engage in political activities.
Previously, some chiefs and other traditional leaders blatantly aligned themselves with Zanu PF in violation of the constitutional provisions requiring them to be politically neutral.
Zanu PF has rewarded them with various benefits, especially as elections approached. Members of Zanu PF who encouraged, intimidated, or bribed leaders to support their party were equally flouting the clear constitutional provisions.
Chief Fortune Charumbira, who was the President of the Council of Chiefs for a long time, openly expressed his allegiance to the ruling party. In 2006, he threatened to evict villagers who supported the opposition.
He told villagers that those evicted from his area for backing the opposition would have nowhere to go as other chiefs across the country had also adopted the same policy of banning supporters of opposition parties from their areas.
In 2018, the Election Resource Centre applied to the High Court to try to stop Charumbira from violating the constitution in this manner. In his judgment, the judge ruled that Charumbira’s statements were in clear violation of the constitution, and the chief was ordered to issue a retraction in writing of the offensive statement.
He had to have the retraction published in national newspapers and make a statement on the national broadcaster. The Minister of Local Government was also ordered to institute disciplinary action against Charumbira for the misconduct. Neither of these two orders were complied with and attempts by the Election Resource Centre to force compliance by seeking a contempt of court pronouncement failed.
In complete disregard of the court ruling against Charumbira and obviously believing that they could disregard the law with impunity, at a meeting with President Emmerson Mnangagwa in Bulawayo in March 2023, the chiefs endorsed the President and his Zanu PF party, with Charumbira saying that as chiefs, they were not afraid of rooting for Zanu PF to win the general elections set for August 2023. The partisan position of traditional leaders in 2023 was well described in several human rights reports on the elections.
As ZimRights pointed out in its post-elections analysis, over 40% of the respondents voted against their will because the headman or village head had a register of names of the local people. Fears about the partisan affiliation of traditional leaders were raised in multiple SAPES Policy Dialogues on the 2023 elections, as well as in the statements and reports of human rights organisations. 60% of ZimRights respondents pointed out that Forever Associates Zimbabwe (FAZ) members were present at the polling station, which was a factor in voting against their will, and clearly FAZ was not being constrained by traditional leadership.
Access by the opposition, independent media and the civil society in rural areas under the control of politically-partisan chiefs or headmen, was often barred using their power to require their permission to operate in their areas. Sadc, in its 2023 election report, noted that FAZ members had been deployed to villages, so it can be reasonably concluded that this was not resisted by traditional leaders.
It was alleged as well that the army and the Central Intelligence Organisation (CIO) had connived with traditional leaders to turn rural areas into “no-go zones” for the opposition ahead of the 2023 elections.
A Zimbabwe Democracy Institute report said traditional leaders were being used to campaign for Zanu PF and facilitate the closure of their communities from opposition penetration. 82%of research participants noted that traditional leaders hindered access to rural constituencies by the opposition, media and the civil society ahead of the 2023 election.
However, this is not new information, and, as Derek Matyszak pointed out nearly two decades ago, the constraints in local government on traditional leaders and local government officials to be non-partisan have been present all along, even if violated with impunity.
Section 67 of the constitution sets out the political rights of Zimbabwean citizens, which include the right to make political choices freely. It further provides that every Zimbabwean citizen has the right to form, to join and to participate in the activities of a political party or organisation of their choice, to campaign freely and peacefully for a political party or cause and to participate in peaceful political activity. Finally, it provides for every Zimbabwean citizen who is over eighteen years the right to vote in all elections and referendums, and to do so in secret; and also, to stand for election or public office and, if elected, to hold such office.
Section 86 of the constitution provides that the rights and freedoms set out in the Bill of Rights must be exercised reasonably and with due regard for the rights and freedoms of other persons.
These rights and freedoms may be limited only to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom. This limitation must take into account all relevant factors, including the need to ensure that the enjoyment of rights and freedoms by any person does not prejudice the rights and freedoms of others.
The explanatory memorandum to CAB3 tries to justify Clause 21 on the basis that denying traditional leaders the right to actively engage in partisan justification violates these rights. However, Section 281(2) still allows traditional leaders to vote in a general election for candidates of their choice.
But what it does provide is that traditional leaders must not be members of any political party or in any way participate in partisan politics or act in a partisan manner or further the interests of any political party.
There is a very sound reason for these limitations. If traditional leaders are affiliated to a political party villagers will believe that they will be biased in carrying out their functions.
Villagers who are members of political parties not favoured by the traditional leaders will fear that they will be discriminated against.
There are other compelling reasons why traditional leaders should remain politically neutral. Politicisation weakens the cultural and historical role of chiefs, turning them into political operatives rather than custodians of traditional values. Chiefs derive authority from tradition, not elections and their legitimacy depends on their neutrality.
Political parties may use chiefs as political mobilisers, giving unfair advantage and undermining democratic equality. When a chief openly supports one party, rival supporters may feel excluded or threatened and they may be coerced into joining the chief’s party. Rural areas can become hotspots of intimidation when authority figures take sides.
Political parties may “capture” chiefs through gifts, allowances, or promises of development projects. Chiefs may feel pressured to deliver votes in exchange for benefits, but traditional institutions are meant to unify clans and communities. There are many examples where traditional leaders have been partisan in elections.
Conclusion
The attempt to change the constitution to enable traditional leaders to engage in political activity was ill-advised. It was not motivated by a concern to uphold their political rights.
Instead, it sought to legitimise its previously illegal unconstitutional efforts to make traditional leaders active political agents and campaigners of the ruling party. It would open the way to an intensified ruling party programme to pressure, intimidate or bribe traditional leaders to support only the ruling party.
Thus, it was important that the Chiefs’ Council’s submissions on CAB3 argued that the existing constitutional prohibition on political participation was a vital safeguard that insulates the institution of traditional leadership from political manipulation, thereby protecting its integrity and independence as enshrined in Section 283(c)(iv) of the constitution. However, Justice Minister Ziyambi Ziyambi has finally decided not to proceed with the amendment.
The big question that remains, however, is will the country now see traditional leaders exercising their mandate envisaged by the constitution as non-partisan guardians of their communities?
Feltoe is former Professor of Law at the University of Zimbabwe and Tony Reeler is Senior Researcher at RAU.