The conflict between the constitution and customary law often puts traditional leaders in a tight spot, making it a ‘minefield’ they should navigate with utmost care for effective justice delivery, Supreme Court Judge Justice Rita Makarau recently said.
Addressing guests at the official opening of the 2023 legal year at Masvingo High Court on January 9 2023, Justice Makarau said there are instances when culture and the constitution are in open conflict, leaving traditional leaders stuck between a rock and a hard place.
“The coincidence of duties in the office of a traditional leader sees them being custodians of culture on one hand and custodians of the constitution on the other. They have to promote, uphold and protect both, and at times culture and the constitution nestle together comfortably making the role of the traditional leader easy and seamless.
“At times culture and the constitution are in open conflict making the traditional leader sit in between the two stools most uncomfortably,” Makarau said.
Makarau went on to give an example she was given by Chief Murinye in a prior meeting with traditional leaders, the example which involved atonement of death by murder known in Shona as ‘kuripa ngozi’.
She spoke on how it may be acceptable for negotiations for the atonement of death to be used in mitigating the sentence of the offender in a criminal court but then may be controversial when it involves pledging a girl child as atonement to replace lost life due to constitutional obligations where traditional leaders are required to protect the girl child.
“(But) where the family of the offender pledges a girl child in the process as atonement for and replacement of the lost life, the law demands that the traditional leader protects the girl child even if this is in open defiance of age old cultural practices in his or her jurisdiction.
“When and where to draw the line is a minefield that traditional leaders must navigate with utmost care. The Chiefs Council, members of academia, the Judiciary, the Judicial Service Commission and its training arm, must all come together to enhance competent service delivery by our traditional leaders in the application of customary law in tandem with the constitution and other statutes,” Makarau said.
Speaking on the same issue, President of the Chiefs Council, Chief Fortune Charumbira said while customary law courts presided over more cases than all other courts, there was low appreciation on how they execute these duties.
“We still have a dual judicial system in Zimbabwe. One judicial system starts at the level of the magistrate upwards, then the other judicial system only caters for the rural poor, and that one is neglected. These are issues that we need to address.
“It is fact that even though we have that legal age of majority act (Marriages Act), even lawyers or judges, when they themselves are affected sometimes directly, they do not think in terms of the Act. They will come to our courts seeking relief on their cases that in some cases do not involve minors but have to be resolved customarily,” Charumbira said.
Charumbira also said there were serious problems regarding the implementation of the statutory laws, where sometimes culture is in open conflict with the constitutional law and the citizenry end up using what works for them in specific scenarios.
“That the customary law courts are recognized by the law of this country is not in debate. What is in debate is to what extent does the justice delivery system provide a conducive environment and respect the customary law courts—that’s where we have issues.
“Customary law courts dispose of more cases than those from all the other courts combined. Judgments and proceedings from local courts are in sync with our values and are friendly, homely and are not as harsh and foreign. People like local courts, but people who preside over local courts do not get any salary at all,” Charumbira said.
There have been debate over how customary law courts handle some matters, with calls for the need to document the number of cases completed at these courts being made.