When their chiefly father died leaving only three daughters, the eldest of them, Silibaziso Mlotshwa, might have seemed the obvious choice to succeed to the Mvuthu chieftainship. But instead her uncle, Saunders Mlotshwa, got the nod from the government's district administrator. This followed a meeting of the Mlotshwa men at which they said a female chief ‘would be an insult’. Now, however, the high court in Bulawayo has ordered that the administrator propose the daughter’s name for the vacant position. The judge said it was unconstitutional to discriminate against her and that the earlier recommendation that the uncle should take the throne was unlawful.
After the death of Zimbabwe’s Chief Nyangayezizwe Mvuthu Mlotshwa, the meeting called to discuss his successor turned into something else: it became an opportunity for local men to express strong views against women in positions of traditional leadership.
At the meeting, two people were up for consideration for the position – the late chief’s eldest daughter, and her uncle. In terms of the lineal succession system of the Mvuthu chieftainship, however, the daughter, Princess Silibaziso Mlotshwa, should have been the obvious choice.
But after the men at the meeting claimed that a woman leader would be ‘an insult’, something ‘unheard of in their customs and traditions’ and a ‘non-cultural’ step, the uncle, Saunders Mlotshwa, was nominated. He was then seconded by the official government district administrator who attended the meeting.
Silibaziso Mlotshwa, however, was determined not to let such a discriminatory decision stand, and she asked the courts for help. At the end of last month, the high court in Bulawayo – the fourth court to have been drawn in to the dispute – found that the original nomination of the uncle, based purely on considerations that discriminated against women, could not stand.
Judge Maxwell Takuva began his decision on the matter with a clear statement of the legal purpose of the case. It was ‘not about the resolution of a dispute as to whom should be appointed as the substantive chief Mvuthu,’ he said. It was about compelling the administrator, as a public official, to take the lawful action that he should have taken under statute and under the constitution.
Reviewing the argument for a mandamus made on behalf of Silibaziso Mlotshwa, the judge said she had made the point that a number of constitutional and statutory provisions backed her application.
For example, she argued that under the constitution of Zimbabwe the administrator had to uphold the provisions of the constitution when carrying out the selection process of a chief under the Traditional Leaders Act. The constitution provided that everyone was equal before the law and had the right to equal protection and benefit of the law. ‘It also provides that woman and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres. Gender, sex, culture and custom are specified prohibited grounds of discrimination.’
The constitution also specified that ‘all laws, customs, traditions and cultural practices that infringe the rights of women conferred by the constitution are void.’
Further, every person and agency of the government, at every level, was required to respect and promote the rights enshrined in the constitution. Thus, the administrator had a statutory duty to act according to constitutional principles when he carried out his duties under the Traditional Leaders Act.
But the administrator failed to comply with these obligations, said the judge. Even though he had been aware of the constitutional provisions of equality and non-discrimination, he carried out his duties ‘in a discriminatory manner.’
In the minutes of the meeting to discuss who would be the next Mvuthu chief there was no indication of any recommendation made by the administrator. Nor do the minutes show how the uncle ‘ended up being recommended’, even though the administrator was ‘fully aware that in terms of the relevant customary Nguni/Ndebele principle he was obliged to recommend (the daughter) to the President for appointment.’
The judge said there was no dispute that she was the eldest daughter. ‘In view of this, she is the next in line of succession to the Mvuthu chieftainship, which is lineal. On the evidence, it cannot be doubted that the succession principle of the clan clearly points to [her] as the heiress to the throne.’
If the administrator were not ‘compelled to act according to law’, Silibaziso Mlotshwa would suffer ‘irreparable harm’. The administrator’s dereliction of his duty under law to uphold the Bill of Rights effectively excluded her from the selection profess of the Mvuthu chieftainship. If the President were to make an appointment, based on the administrator’s unlawful actions, she could not challenge the appointment because it would then ‘fall within the parameters of executive discretion’.
There was ample evidence in the minutes of the meeting that her rights had been violated: her ‘biological profile’ was, in the view of the meeting, ‘an automatic bar’ to her being considered as a potential chief.
The judge had some harsh words for the uncle, and ordered costs against him on a punitive scale. The uncle’s behaviour had been ‘that of a drowning man clutching at straws’. He had challenged the minutes of the crucial meeting to nominate a new chief and said the whole process was ‘flawed’. Why then had he opposed the grant of mandamus?
‘What is baffling and defying logic is that notwithstanding [his] spirited challenge on the authenticity of the minutes …, he wants to cling to those minutes’ validity in so far as the outcome of the meeting is concerned. Why should the outcome (i.e. [the administrator’s] recommendation) be regarded as valid and proper if the process is flawed? The uncle’s conduct was ‘so grossly unreasonable that it actually exposes the fallacy and mala fides of his entire opposition,’ and the judge said his opposition had been ‘an abuse of court process’.
Judge Takuva therefore set aside the original recommendation by the administrator that the Mvuthu family should nominate the uncle to the chieftainship, as it had been unlawful, null and void. He ordered the administrator to reconvene a meeting for selection of a chief within 60 days. The administrator was ‘compelled to make lawful recommendations’ to the President about someone to take on the Mvuthu chieftainship, bearing in mind the constitutional imperatives of non-discrimination and equality. The court further ordered the administrator to act lawfully in terms of the constitution during the selection process at the meeting.
The case, highly significant for the recognition of women within the traditional structures of Zimbabwe, was brought with the support of the Southern African Litigation Centre. In a statement by the SALC, following the court’s decision, Silibaziso Mlotshwa commented: ‘I am happy that the court has recognized that despite being a woman, I am a human being first, deserving of being afforded equal opportunities in all spheres of life including traditional and customary life. No one chooses to be born male or female, as such as we should not be judged on the things that we do not have control over, but every human being, regardless of gender, deserves to be afforded a chance to prove his or her worth.’
She added, ‘Society has to start acting in accordance with the rights enshrined in our constitution which advocates for non-discrimination especially in terms of gender, for what men can do, women can do too, or even do better. Our struggle is not over until society starts recognizing that men and women are equal.’
- Thanks to xxxx for his help in obtaining a copy of the judgment for Jifa.