Ndiweni: Customary law vs Constitutionalism

The Sunday Mail

Petina Gappah
The discussion around the Chief Ndiweni case is so disappointing I am going to start my own here. In fact, I am slowly coming to the conclusion that I probably should start writing public think pieces after two years of silence.

Almost all intellectual engagement is happening on Twitter, in short sharp bursts, and we are losing so much nuance in the process.

Here is a first draft of something I have been thinking of writing. I am resigned to the fact that it will be shared. I ask only that you do not edit it to suit your own purposes.

I am struggling with the black and white “that is that sadza repaboarding” position taken by human rights defenders, opposition politicians and their fellow travellers on the Chief Ndiweni case.

Do people living in rural areas cease to be citizens? Are they subjects, at the whim of the chiefs who “rule” over them? Or does the law seek to strike a balance between being subjects and citizens, by constraining the power of Chiefs under both the Constitution and the applicable legislation?

Let’s take away the “who supports ED and who supports Chamisa” arguments for a minute, I will come back to the politics, but first, the unvarnished facts that were admitted during the trial by both Ndiweni and the men who carried out his orders.

A woman subject of Ndiweni’s, who is also a female citizen of Zimbabwe, was involved in an adulterous affair. Her husband, who is both Ndiweni’s subject and a Zimbabwean citizen, had two options on learning of this affair, to condone the adultery and forgive his wife, or to dissolve his marriage and divorce his wife. He chose to forgive his wife.

Ndiweni was displeased with this decision. He said the woman was a “prostitute” who should be returned to her home because he did not allow “prostitution” in his land. He ordered the man to return her to her home. The man refused. Ndiweni ordered this man’s kraal and homestead destroyed by fire for his disobedience of a chief’s ruling.

This is what was established by a trial in which witnesses were heard, examined and cross examined, and is confirmed by Ndiweni’s own videos on Twitter which dismisses the case as a “traditional matter”.

Ndiweni was charged with a criminal offence together with the men who did the torching of the property.

He was convicted and sentenced to an effective 18 months.

This is clearly a case about a lot of things.

It is firstly a case about the limits of a chief’s power. The legal authority of chiefs is constrained by the law. Citizens are not vassal subjects. We do not live in the days of Changamire Dombo and Lobengula, of the Rozvi and Mutapa emperors and Ndebele Kings. We do not live in a land of lese majeste.

Rural citizens have the right to have marriages that are as messy as in town, rural men have the right to choose not to divorce their wives, and those same wives have agency about whether or not to stay in their marriages and are neither the property of their husbands nor their chiefs.

Had it been any other Chief, his actions would have caused shock and outrage in human rights and progressive feminist circles.

I was intrigued to see a human rights lawyer, Doug Coltart, argue on Twitter that this matter is “an assault on African customary law”.

I should bloody well hope so!

The Constitution is supreme, and is above African customary law. The interpretation clause of Chapter 4, which sets out the declaration of rights, makes it clear that “when interpreting common law and customary law, every court, tribunal, forum or body must promote and be guided by the spirit and objectives of this chapter”.

S281 of the Constitution specifically enjoins on traditional chiefs the duty to act in accordance with the constitution and the laws of Zimbabwe.

S63 confirms every person’s right to a cultural life but makes it clear that no person may exercise cultural rights in a way that is inconsistent with the rights of others.

There is a long line of cases from Katekwe v Muchabaiwa that places African customary law within a progressive context. And working with Welshman Ncube and others, in the 80s and 90s, WILSA did important feminist work on “excavating African customary law”, and correcting the assumptions of white native commissioners about its nature.

So it is disappointing to see a supposed progressive, and human rights defender take a “white native commissioner” reductionist approach in which he suggests that African customary law is static and exists in isolation from other rights.

As I said, the Constitution states clearly that every person has the right to practice their culture, but that exercise is subject to other rights in the constitution. Like, for instance, the right to a family life, the right to property. Or are the “property rights” that the opposition calls for only for white farmers and not rural persons?

The supporters of Ndiweni are willfully blind to these issues. He is an MDC-affiliated Chief and so can do no wrong. Even his most partisan acts and statements are cheered on by the same human rights defenders who, in my view are perfectly correct in opposing the partisan actions and views of Zanu PF-affiliated chiefs like Chief Charumbira.

When rural folk are at the mercy of their chiefs, it naturally and properly raises questions about how freely they can vote, how freely they can exercise their rights. Chiefs should not be partisan. This clear principle however does not seem to be applied to Ndiweni.

This case has been going on for a long time, but the human rights defenders woke up to it only at sentencing.

That is because this case is also without question about the selective application of justice.

Zimbabwe has a long history of prosecuting opposition folk on manufactured charges while ruling party people committing graver offenses go unpunished. We have a long history of using the law selectively, punitively, unfairly, unjustly.

A notorious example that still gives me the white hot rage is the long sentence served by Roy Bennett, pursuant to his conviction under a Parliamentary bill of attainder that was passed by a committee with a Zanu PF majority. He served his sentence before any court reviewed that unfair bill.

I could list so many other examples of selective prosecutions. So it is only to be expected that this issue has fed into the opposition propaganda machine, and yes, the opposition is proving to be as adept at manipulating information as the ruling party: they just don’t have the power of state media, but the bending of the truth is exactly the same MO.

I am doing a bigger piece on Zimbabwe’s Information war, as part of a larger book review on propaganda, so I will return to this subject at some point.

But back to Ndiweni.

Is his conviction unjust?
On the facts above, I don’t believe so.

Is his sentence excessively harsh?
Possibly. I have not reviewed sentences for similar crimes.

Is this selective application of justice?
Oh absolutely. As long as Zanu PF offenders are not tried as swiftly, there will always be selective application of justice.

But this does not and should not whitewash Ndiweni’s criminal actions and the clear violations of the rights of his subjects.

Because this is also the story of two people and their messy marriage who may be Ndiweni’s subjects in Ntabazinduna, yes, but are also ultimately Zimbabwean citizens with protected rights under our Constitution.

Ndiweni also has rights, to a fair trial, and to an appeal. Here is hoping that the human rights defenders who had been sleeping now wake up and assist him in his appeal.

And if his guilt is confirmed after the best defence his lawyers can mount, may his convinction remind other chiefs that rural people are not just subjects.

They are also citizens.

The opinion first appeared on Petina Gappah’s Facebook page