Zimbabwe ConCourt: Chief Mphini Land Challenge Adds Ministers

• Zimbabwe's Constitutional Court has joined two ministers to a challenge by Chief Mphini and two village heads facing criminal charges.
• The traditional leaders are accused of allocating 26 communal land stands in Bulilima District between 2021 and 2024 without authority from the local Rural District Council.
• They argue that Section 174 of the Criminal Law Code is unconstitutionally overbroad and that Section 8 of the Communal Lands Act conflicts with constitutional provisions granting traditional leaders land authority.
• A provincial magistrate referred these three constitutional questions to the ConCourt and stayed the criminal prosecution pending the outcome.
• The case will clarify the constitutional powers of traditional leaders versus rural district councils over communal land allocation and the constitutionality of Section 174.

We are essentially asking the Constitutional Court to uphold what the constitution says, that is, it is the role of traditional leaders to administer and parcel out land in their areas of jurisdiction.

Zimbabwe's Constitutional Court has formally included the Minister of Justice, Legal and Parliamentary Affairs and the Minister of Local Government and Public Works as parties in a significant constitutional challenge. This development stems from a criminal prosecution initiated against Chief Mphini, whose real name is Jabulani Mphini, of the Ndiweni area in Bulilima District, alongside two village heads under his authority, Madhoja Mafa and Howard Nkomo. The three traditional leaders are facing charges related to the allocation of communal land within their jurisdiction.

The charges against Chief Mphini and the two village heads allege criminal abuse of duty as public officers, a violation under section 174 of the Criminal Law (Codification and Reform) Act, read in conjunction with the Communal Lands Act. Specifically, they are accused of allocating 26 residential and agricultural stands in Ward 21 between 2021 and 2024. These allocations were reportedly made without the necessary resolution or authority from the Bulilima Rural District Council (RDC), which subsequently uncovered the actions in July 2025.

The traditional leaders initially approached the Plumtree Magistrates Court, seeking to have three pivotal constitutional questions arising from their prosecution referred to the Constitutional Court. Their arguments center on the constitutionality of specific legal provisions. Firstly, they contend that section 174 of the Criminal Law Code is unconstitutionally overbroad. Secondly, they argue that section 174(2) of the same code unlawfully reverses the onus of proof onto an accused person, infringing on fundamental rights.

The third and perhaps most far-reaching question concerns the conflict between statutory and constitutional provisions regarding land authority. The applicants assert that section 8 of the Communal Lands Act, which vests authority over the allocation of communal land in rural district councils, is inconsistent with section 282 of the constitution. They interpret section 282 as granting traditional leaders inherent authority over communal land within their respective jurisdictions. Provincial magistrate B. Sibanda, in a ruling delivered on June 12, determined that the National Prosecuting Authority (NPA) and the defense agreed on the underlying facts—that the three are traditional leaders who allocated land without council resolution—and that the dispute was purely a matter of law. The magistrate concluded that the application was neither frivolous nor vexatious, leading to the referral of all three questions to the Constitutional Court and a stay of the criminal prosecution pending the ConCourt's decision.

The National Prosecuting Authority, however, opposes the referral of these questions. In heads of argument filed in July, the NPA contended that the applicants have not adequately demonstrated how the impugned provisions actually limit the rights they claim to rely on. Consequently, the NPA has requested the Constitutional Court to dismiss all three questions and remit the matter to the Plumtree Magistrates Court for the criminal trial to proceed.

Conversely, the applicants, in their own heads of argument, are seeking several outcomes from the Constitutional Court. They desire a declaration that section 174 is unconstitutional, though they propose that any declaration of invalidity be suspended for 180 days to allow Parliament time to amend the provision. Furthermore, they are pushing for section 8 of the Communal Lands Act to be struck down immediately and for the criminal charges against them to be quashed. A recent consent order, issued on a Wednesday, did not resolve any of these substantive constitutional questions. Instead, it formally brought the two ministers into the case as the second and third respondents. The registrar is tasked with furnishing the ministers with the record within 10 days, after which the ministers will have a further 10 days to file their heads of argument. The applicants will then have 10 days to respond, following which the registrar will set the matter down for a hearing. The case has been postponed indefinitely, with no order as to costs. Advocate Method Ndlovu, representing the applicants, noted that the Constitutional Court adopted a “flexible approach” in joining the two ministers, who oversee the criminal law code and the Communal Lands Act, to ensure the matter is “fully ventilated.”

The ongoing constitutional challenge before the Zimbabwe ConCourt Chief Mphini land case carries significant implications for the framework of land governance and the powers of traditional leaders in Zimbabwe. The core of the dispute, as articulated by Advocate Ndlovu, is a request for the Constitutional Court to affirm the constitutional role of traditional leaders in administering and parceling out land within their areas of jurisdiction. This outcome will directly clarify the often-contested boundaries of authority between traditional leaders and rural district councils regarding communal land allocation.

Beyond the specific land dispute, the ConCourt's ruling will also provide crucial clarity on the constitutionality of Section 174 of the Criminal Law Code, particularly concerning its breadth and the burden of proof. The resolution of this Chief Mphini constitutional challenge will therefore have far-reaching consequences, influencing future land tenure advice, shaping local governance disputes, and impacting criminal defense strategies for public officers across Zimbabwe. The Zimbabwe land rights ConCourt case is poised to redefine aspects of the country's legal and administrative landscape.

Lawyers should monitor this case closely as the Constitutional Court's ruling will clarify the constitutional powers of traditional leaders regarding communal land allocation versus rural district councils, and the constitutionality of Section 174 of the Criminal Law Code. This outcome will directly impact land tenure advice, local governance disputes, and criminal defense strategies for public officers in Zimbabwe.

Source: Reporting based on original coverage.