Chawaona Wilbroad Kanoti v President National Council of Chiefs, NO and Minister for Local Government and Public Works, NO and Minister for Justice, Legal and Parliamentary Affairs, NO and Attorney General, NO

### Preamble
1
HH 385 - 25
HCH 204/24
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CHAWAONA WILBROAD KANOTI

versus

PRESIDENT NATIONAL COUNCIL OF CHIEFS, NO

and

MINISTER FOR LOCAL GOVERNMENT AND PUBLIC

WORKS, NO

and

MINISTER FOR JUSTICE, LEGAL AND

PARLIAMENTARY AFFAIRS, NO

and

ATTORNEY GENERAL, NO

HIGH COURT OF ZIMBABWE

MUNANGATI-MANONGWA J

HARARE; 21 November 2024 & 1 July 2025

Opposed Matter

Applicant in person.

L.T.Muradzikwa for the 2nd, 3rd and 4th respondents

MUNANGATI-MANONGWA J: Zimbabwe being a constitutional democracy, the courts play a prominent role in safeguarding the fundamental rights bestowed on the people by the Constitution. Persons who seek to enforce their constitutional rights or who allege infringement of such rights must be clear as to the right concerned, how that right is being infringed and the relief they seek. It is not proper to rush to court with bald unsubstantiated allegations of an infringement which allegations are not supported by facts and do not show how the protected right has been affected. Equally, matters which deal with freedoms and fundamental rights are so serious that a litigant cannot go on a fishing expedition hoping to score a victorious point as so much scrutiny goes into the determination of such matters. Suffice that the applicant in this matter seems to have missed these crucial pertinent considerations.

The applicant herein considers himself to be “an enlightened traditionalist who holds strong belief in, and practice his indigenous culture and customs.” He presents his case in a long winding convoluted affidavit where he states that he seeks enforcement of unimpeded enjoyment of participation in cultural life of choice through the granting of a declaratory order in terms of s14 of the High Court Act [Chapter 7:06]. He alleges that he is approaching this court in terms of s85(1)(a) and  he seeks to vindicate his interests under s63(b) of the Constitution viz enjoyment of his right to participate in traditional Chieftainhood cultural life of his choice which is being adversely affected by half-baked nomination and selection processes of chiefs at the exclusion of traditional spiritualists. In essence, the applicant seeks the participation of, and confirmation by spirit mediums of appointees to chieftainships which practice he believes is not being upheld as per the constitutional requirements. The application does not relate to resolving a dispute as to who is supposed to be appointed a traditional chief but relates to uniliteral incorporation by the applicant of the Mhondoro/ Spirit Medium in confirming a candidate to the post of a traditional chief.

Specifically, applicant herein seeks the following order;

That a declaratory order be and is hereby granted that within the correct conceptualization of the institution of traditional Chiefs in Zimbabwe, any selection and nomination of a candidate for appointment as a traditional chief where the candidate would not have passed through the process of confirmation or otherwise before the community/ jurisdiction’s Mhondoro/ Spirit Mediums renders the recommendation to the President of Zimbabwe for appointment of such a candidate to traditional Chieftainhood, in terms of section 3 of the Traditional Leaders Act     [Chapter 29:17], void ab initio and therefore of no force or effect at law.

That there be no order as to costs.

The facts surrounding this application are as follows: The applicant alleges that he is a resolute indigenous who holds strong beliefs in the practice of his indigenous culture and customs. The applicant is a citizen of Zimbabwe who hails from the Chirumhanzu traditional chiefdom in the Midlands Province. He states that he is approaching this court in terms of s85 (1) (a) of the Constitution of Zimbabwe Amendment, 2013 (“the Constitution”) as read with s63 of the Constitution which is the right to participate in and under the operations of the institution of traditional chieftainship. His challenge is on the practice of the selection and nomination process of traditional chiefs in this country which he believes is being done contrary to the Constitution and the Traditional Leaders Act [Chapter 29:17]

He alleges that the Traditional Leaders Act is the source of the alleged unlawful appointments of traditional chiefs. More specifically, the applicant avers that non-mhondoro confirmed traditional chiefs place him in an invidious position in his participation in the practice of the traditional chieftainhood culture as he then  endures misplaced respect and misdirected supplication to any such nominated traditional chief and this harms his desired correct and fruitful association with the institution of traditional chiefs which should be premised on the purity of the institution. The applicant alleges that appointments to chieftaincy are not being done in the expected traditional way in terms of s280 of the Constitution as read with s3 of the Traditional Leaders Act. The applicant avers that disregard of proper appointment procedures is resulting in unqualified candidates being selected. Such appointed persons cannot perform, lead in the performance of cultural, customary and traditional functions of their chieftainship offices as expected of them and as provided in the laws of the country. The applicant avers that the expected specific functions of chieftainship are as follows:

Rain- making ceremonies.

Leading in the spiritual prayers in the community’s sacred caves, mountains and along sacred rivers.

Disease preventions cultural community ceremonies, natural resources’ supplications and requests ceremonies for the discovery and sustainable utilization of natural resources such as gold, lithium and oil, and,

Cultural/ traditional ceremonies for peace and prosperity.

The applicant further alleges that by virtue of the selection process not being done in accordance with tradition and laws of this country, the process is infringing his right to exercise his full correct practices and obligations expected of him in the participation of the cultural life of his choice, specifically that of supplicating to traditional chieftainship. By filing this application, the applicant alleges that he is emulating and perpetuating his desire and pride of continued traditions of the country’s indigenous traditional chieftainship whose succession, selection and nomination leading to subsequent appointments as envisaged in the Constitution and Traditional Leaders Act should be premised on Dynastic Rule or/ and Conquest. The Dynastic Rule’s first stage as highlighted by the applicant is as follows:

“Dynastic Rule appointment:

This is not mandatory and can be skipped. This process has two critical mandatory stages which are as follows;

The selection and nomination of a candidate into the vacant traditional chieftainship post by the elders of the community/ jurisdiction from only amongst the descendants of their totem/dynasty, and

Mandatory confirmation (or otherwise), and hence subsequent blessing into that post, by the Mhondoro/ Spirit Medium(s) of the community.

The second stage being the Mhondoro/ Spirit Medium(s) stage is alleged to be mandatory and the process is as follows:

a traditional chief has to be in sync with the culture, customs and traditions of the community/ jurisdiction;

the Spirit Mediums/ Mhondoro has the final say from their realms of existence and will select and confirm a candidate who will be pure who suits in the common and shared indigenous Zimbabwean spirituality, culture, customs and traditions. Purity is a requirement of any traditional chieftainship candidacy.

A traditional chief is expected and required as part of his functions to conduct and preside over the communities, communities’ cultural and customary rites and rituals, safe keeping the community’s land and natural resources in trust for the communities’ holy shrines such as Ninga/ Holy cave or shrines wherein all chiefs of the jurisdiction or community are buried. Most traditional rites were conducted by the community as presided over by the chief in the company and under spiritual advices of the community’s Mhondoro/ Spirit Medium(s).”

The applicant alleges that the Mhondoro/ Spirit Medium confirmation in selection of a chieftainship candidate should be mandatory irrespective of the tribe the indigenous community belongs. The applicant alleges that white-race- settler regime which was brought by colonialism eroded the past procedure and imposed a system favoring succession on political basis and the control of stooges. He alleges that such procedure is not envisaged in our Constitution and the Traditional Leaders Act. He avers that if the first respondent wishes to apply the white settler regime procedure in the selection of chieftainship, the law ought to be amended to provide for such. The applicant contends that  chiefs that are nominated outside the participation of Mhondoro/ spirit mediums cannot possibly “exercise their functions for the purpose for which the institution of traditional leadership is recognized by the Constitution” It is upon this background that the applicant seeks a declaratur or confirmatory order challenging the abandonment of the Mhondoro/ Spirit Medium confirmation in the current selection of chiefs.

The first respondent opposed the application. Apart from opposing the matter on merits,  two points of law were raised being that  the applicant has no legal right to bring this application, it being argued that the applicant lacked locus standi in judicio to raise this application in terms of s85(1)(a).It was further submitted that the applicant did not allege that his right to the enjoyment of the fundamental rights granted in s63 of the Constitution has been infringed, in that regard there  is no cause of action. Equally Mr Muradzikwa for the respondents stated that the failure to cite the President of the Republic of Zimbabwe who appoints Chiefs is fatal as there is material non-joinder.

In response the applicant maintained that he has substantial interest in the matter given that he has a right to participate in his cultural life which right is being impended. Mr Kanoti the applicant further argued that the declaratur that he seeks is the remedy appropriate in the circumstances. As regards the non-joinder of the President of the Republic he insisted that the non-joinder is not fatal to the proceedings given that the application relates to the selection and nomination of a Chief rather than appointment. In that regard, there was no need to cite the President. He further contended that this should not affect the matter which is of national interest.

Whether the applicant lacks legal standing or locus standi to bring this application

In deciding this question it is imperative to consider the provision upon which the applicant relies on being s85(1) of the Constitution.  s85 (1) (a) of the Constitution reads as follows:

“85. Enforcement of fundamental human rights and freedoms

Any of the following persons, namely-

any person acting in their own interests;

any person acting on behalf of another person who cannot act for themselves.

…………………………………………….

is entitled to approach a court, alleging that a fundamental right or freedom enshrined   in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.” (my emphasis)

In my view this section is an open ticket to people of Zimbabwe who upon factually satisfying the onus on them vis proving an infringement of a fundamental right, the court may grant relief of a declaration of rights and in appropriate circumstances compensation.

In Minister of Justice, Legal and Parliamentary Affairs & 3 Ors v Concelia Chinanzvavana & Anor SC119/21 the Court stated as follows:

“A proper interpretation of the above provision is that once a person approaches a court on the basis of s 85 (1) (a) of the Constitution, the court must make a determination on the following issues:

That the person approaching the court has an interest in the matter, and

That the person is alleging that a fundamental right in Chapter 4 has been, is being or is likely to be violated in respect to her.”

See Meda v Sibanda & Anor 2016 (2) ZLR 232 (CC) at 263

Thus the first hurdle that an applicant has to clear is to convince the court that he has an interest in the matter. In simpler terms, the litigant must have sufficient interest in the matter at hand in order to have a valid reason to be involved in the case and a personal interest in the outcome. In Allied Bank Ltd v Dengu & Anor SC 52/16 Malaba Dcj (as he then was) held that locus standi is concerned with the relationship between the cause of action and the relief sought and once a party establishes that there is a cause of action and that he/she is entitled to the relief sought, he or she has locus standi. A similar legal position was taken in Stevenson v Minister of Local Government and National Housing and Ors SC 38/02 where the court held that where a requisite interest or special reason entitling a party to bring legal proceedings exists, the party has locus standi.

The applicant claims to have approached this court in terms of s85 (1) (a) as read with s63 of the Constitution. For completeness, s63 of the Constitution reads as follows:

“63. Language and culture

Every person has the right-

To use the language of their choice; and

To participate in the cultural life of their choice;

But no person exercising these rights may do so in a way that is inconsistent with this Chapter.”

The applicant’s case hinges upon the lack of consultation of mhondoro or spirit mediums in the selection and recommendations of chiefs for appointment which he alleges infringes upon his participation in the cultural life of his choice. The legal interest in such a matter gets perceived from the facts that are presented to court. The court associates itself with the view expressed in Allied Bank Ltd (supra). The applicants’ papers and assertions are so vague that the cause of action cannot be readily ascertained. It is not enough that the applicant states that he hails from Chirumhanzu traditional chiefdom in the Midlands Province. It is imperative to note that the applicant did not set out facts that are material which give rise to an enforceable claim (see Mukhahlera v Clerk of Parliament and Others HH 107/07). The defect in this application is rooted in the cause of action. The applicant’s pleadings are inadequate and cannot be a basis for any suit or action. The Constitution and the Traditional Leaders Act provide that traditional chiefs are appointed taking into account traditional customs and values of each community.  In this multicultural country, the traditional customs and values of each community differs with each community practicing its own unique tradition. The facts upon which this application is founded have no legal import given that the Mhondoro/ Spirit Medium might not be common to all indigenous customs in the appointment of a candidate for traditional chieftainship.

Further, the applicant has failed to establish that he is an interested party in the present application and is entitled to the relief sought. One wonders how this court can be called upon to deliberate on such an issue. This court cannot sit and enquire into the exact customary considerations that should be taken into account in the appointment of traditional chiefs since these vary in each community. The Constitution and the Traditional Leaders Act has outlined universal guidelines which are both mandatory and peremptory in the selection process of a candidate for chieftainship. Confirmation of the selected candidate by the Mhondoro is not however mandatory since it is alien to other communities. The matrix could have been different and this application could have been one which this court could have entertained if the applicant was challenging the appointment of a specific traditional chief who was appointed without confirmation by a Mhondoro/ Spirit Medium where such confirmation is the prevailing customary practice of the community to which he is part of.

Most pertinent is the missing nexus between applicant’s legal interest in the generalized appointment of chiefs and his enjoyment of the right to participate in the cultural life of his choice. The confusion is further compounded by the fact that the applicant then seeks a declaratur under s14 of the High Court Act [Chapter7:06]. Suffice that the declaratur that the applicant then seeks is not the one contemplated by s85(1) which he sought to rely on when he alleges breach of his fundamental rights. It is difficult to decipher and depict the applicant’s legal interest in the matter where the averments are not only mixed up and so convoluted and the relief sought does not reflect an infringement of a right as contemplated in the relief provided in s85.

Given the aforementioned, this court finds that the applicant has failed to clear the first hurdle of proving that he has an interest in the matter. In other words, the applicant’s lack of locus standi in judicio to bring this application, coupled by the absence of a recognized cause of action means the application cannot succeed. Thus, the legal objection raised by the first respondent succeeds. It is therefore not necessary to delve into the point that pertains to the non-citation of the President of Zimbabwe.

In the result, the application is dismissed with no order at to costs.

Munangati-Manongwa J: ………………………………………

Kanoti And Partners, applicant’s legal practitioners

Civil Division of the Attorney-General’s Office, respondents’ legal practitioners