ZAMBIA’S courts have been wrestling with how to resolve a dispute over a “novel situation”: too many contenders to the throne of Chief Kapijimanga, leader of the country’s Kaonde people. The high court proposed an unusual remedy for this dilemma, namely that all subjects should be involved in considering the way forward. But this apparently democratizing approach was overturned on appeal with the supreme court finding that the electoral college of royal family members traditionally made such decisions – not their “subjects”.
Read the judgment here
BY tradition, for a year after the death in 2008 of Ostralia Katuka, Chief Kapijimpanga IV, no new leader was installed over Zambia’s Kaonde people of NorthWestern Province. But behind the scenes a number of family groups engaged Sandangombe, the “kingmaker”, to discuss who they thought should succeed to the throne.
When it was time to choose the heir to the throne, there were just too many contenders. Claiming there was no agreement on the way forward, one candidate applied to the courts for help in resolving the customary law issues related to succession.
Opa Kapijimpanga, who brought the case, said he was the rightful heir. He contended that Kilolo Ng’ambi, against whom the application had been brought, and who was purporting to be the current Chief Kapijimpanga, was not properly installed according to traditional processes.
According to Kapijimpanga, the traditional process involved consensus by all contending families. Once chosen, the name of the successful candidate was submitted to Sandangombe, the "kingmaker'', who then made the final decision.
On the appointed day, the chosen successor was supposed to be "caught", kept overnight in a special lodge and then installed on the instruction of Sandangombe, a process followed since Chief Kapijimpanga I.
Kapijimpanga said he was duly “caught” by Sandangombe’s men and was then confined in the traditional shelter where he spent the night expecting the customary process to follow. But when he was brought out the next morning, confusion and violence erupted. According to Kapijimpanga this was orchestrated by one of the royal families who threatened Sandangombe, and the senior chief then appointed Ng’ambi as the new Chief Kapijimpanga.
Ng’ambi’s version, however, was that it was against custom and tradition for Sandangombe to arrange the new leader’s “capture”. In terms of proper customs he, Ng’ambi, had been “caught” on the second day of the installation process and confined overnight but when he emerged on the third day the atmosphere was tense.
The families of the many contestants – he said there were six – were then called to explain their family lineage. The council of chiefs decided that the royal families should choose one from the six candidates, but they could not reach agreement. Then the families selected three representatives for each family and these 18 people were then to decide on a candidate. This also failed.
Finally, the royal families mandated the senior chief, along with the other chiefs, to announce the new leader. All the families also accepted to be bound by the chiefs’ announcement. When the chiefs returned, the name they announced was his own. Ng’ambi said that he was then declared and installed by the senior chief according to the Kaonde traditional process.
Faced with this complex dispute, the high court judge said the main issue for her to decide was whether Kapijimpanga had been properly installed.
In her view, the responsibility for selecting a chief belonged with the royal family and it was these family members, rather than Sandangombe, who were the kingmakers. She also noted that, for the first time, members of the royal family could not agree on the person who was to be crowned. This stalemate triggered confusion and violence on what was meant to be the day of installation. In other words, the traditional way of deciding who should be the next leader appeared to be inadequate for the situation that had developed.
She concluded that the senior chief had not acted in accordance with custom and tradition in selecting a successor to this throne. Though Ng’ambi was eligible in terms of his lineage, she nullified his selection because the whole process was so marred by wrangles and confusion.
She then decided that the “novel problem” of so many candidates should be put to “all stakeholders” for a solution. It could not be “left to one person” but that everyone, including the subjects of the chiefdom, should be involved in finding an acceptable way forward. She gave them 90 days to resolve the situation, work out how to address the present situation, and decide what to do in the future if so many candidates again presented themselves.
Ng’ambi then appealed, saying it was not true that tradition had been inadequate to resolving the situation. Moreover, it was “wrong to ask the community to evolve a new system”.
Chief Justice Irene Mambilima, with Judges Mumba Malila and Michael Musonda, heard the appeal.
According to Ng’ambi, the high court should not have substituted its own opinion about what was the fair way to resolve the dispute. Subjecting the selection of the chief to “all the subjects” of the chiefdom was contrary to Kaonde tradition which restricts the selection to royal families.
The appeal judges agreed. The records “conclusively established” that under Kaonde custom, the electoral college comprised the royal families and not the entire community of subjects. It was thus a misdirection for the court to have directed that the community should be represented in coming up with a formula for finding a new chief.
In any case, the royal families had actually worked out a way to make a choice, with Ng’ambi announced the new leader.
Having overturned the high court’s findings, the supreme court declared that Ng’ambi was properly appointed and installed as Chief Kapijimpanga V, and costs in both courts were awarded against Kapijimpanga.