Muguti: Zimbabwe Traditional Leaders Act Amendment Challenged

• Permanent Secretary Muguti announced plans to amend the Traditional Leaders Act to ban cellphones and recordings in chiefs' courts.
• Muguti also highlighted the need for national disciplinary structures for traditional leaders within the Act.
• Lawyer Fadzayi Mahere stated Muguti lacks authority to make such declarations or push for legislative changes as he is not a Member of Parliament.
• Mahere cited section 282(3) of the Constitution, asserting traditional leaders are independent of Muguti's control.
• Current customary court procedures, under the Customary Law and Local Courts Act, grant chiefs discretion and mandate open court hearings.

The law-making process is constitutionally defined, and no single person can predetermine legislative outcomes, regardless of their personal opinions.

Muguti, the Permanent Secretary, addressed provincial councils of chiefs from across the country during a meeting held in Harare on Tuesday, October 13. During his address, he indicated that the ministry is actively pursuing amendments to the Traditional Leaders Act. These proposed changes aim to curb certain practices currently observed within traditional courts, specifically targeting the use of mobile phones and recording devices during proceedings.

The Permanent Secretary articulated concerns that allowing cellphones in a chief's court compromises the confidentiality essential for such hearings. He argued that recording trials in community courts could deter individuals from reporting issues to traditional leaders, fearing public exposure on social media platforms. This, he suggested, undermines the integrity and respect due to the chief's court and the nation's heritage. Muguti emphasized that these proposed amendments to the Traditional Leaders Act are being facilitated to address these perceived issues.

Beyond the conduct of court proceedings, Muguti also highlighted a significant gap in the existing Traditional Leaders Act concerning the disciplinary framework for traditional leaders. He pointed out the absence of a national disciplinary structure, noting that current disciplinary mechanisms operate outside the National Chiefs’ Council. He asserted that this arrangement is suboptimal and requires rectification through legislative amendment to establish proper disciplinary structures for traditional leaders.

In response to Muguti's pronouncements, prominent lawyer and politician Fadzayi Mahere challenged his authority to declare such changes or to advocate for amendments to the Traditional Leaders Act. Mahere underscored that the Permanent Secretary, not being a Member of Parliament, lacks the legal standing to initiate or dictate legislative alterations. She firmly stated that Muguti's views on these matters are not legally binding on anyone.

Mahere further cited section 282(3) of the Zimbabwe Constitution, which stipulates that traditional leaders are not subject to the control of any individual or authority, explicitly including Mr. Muguti. She contended that the Permanent Secretary possesses no constitutional or statutory power, under the Traditional Leaders Act [Cap 29:17], to discipline chiefs. Mahere characterized any attempt by Muguti to "discipline," bully, or oversee the work of chiefs as both unconstitutional and unlawful, adding that the specific "offence" he referenced does not legally exist.

Regarding the conduct of traditional courts, Mahere clarified that procedures are governed by section 20 of the Customary Law and Local Courts Act [Cap 7:05]. This section grants chiefs broad discretion to manage proceedings in a manner they deem fit to ensure substantial justice between parties. Crucially, section 20(3) of this Act expressly mandates that all cases heard in these courts must be conducted in open court, directly contradicting the notion of banning recordings for confidentiality. Mahere stressed that the law-making process is constitutionally defined, and no single person can predetermine legislative outcomes, regardless of their personal opinions.

The Permanent Secretary's statements, while signaling potential future legislative intent regarding the Zimbabwe Muguti Traditional Leaders Act amendment, do not currently alter the legal landscape for customary law. As Mahere articulated, his views on local court procedures carry no legal force or effect. Legal practitioners advising on customary law in Zimbabwe must therefore continue to rely on the existing statutory framework, particularly the Customary Law and Local Courts Act, which outlines the operational procedures and discretionary powers of traditional courts.

It is imperative for legal professionals to recognize that any changes to the disciplinary structures for traditional leaders or the procedural rules governing chiefs' courts, such as a social media ban, can only take effect once formally enacted by Parliament. Until such time, the current provisions of the Traditional Leaders Act and the Customary Law and Local Courts Act remain supreme. Muguti, like all public officials, is bound by the law as it stands today, in accordance with section 3 of the Administrative Justice Act, irrespective of his personal sentiments or proposals for reform.

This situation underscores the principle of the rule of law, where legislative changes must follow established constitutional processes rather than administrative decree. The independence of traditional leaders, as enshrined in the Constitution, further reinforces that pronouncements from officials outside the legislative body do not automatically translate into binding legal requirements. Therefore, vigilance is required to monitor any actual legislative amendments to the Traditional Leaders Act for changes to court procedures or disciplinary structures for traditional leaders, rather than reacting to preliminary discussions or proposals.

Lawyers advising on customary law in Zimbabwe should note that pronouncements by officials like Muguti regarding traditional court procedures and amendments to the Traditional Leaders Act are not legally binding until formally enacted by Parliament. Practitioners should continue to rely on the Customary Law and Local Courts Act and monitor any actual legislative amendments to the Traditional Leaders Act for changes to court procedures or disciplinary structures for traditional leaders.

Source: Reporting based on the source article.