Traditional courts thrive alongside formal system

Miriam Tose Majome

In the heart of Zimbabwe’s legal landscape, a dual system operates, a blend of the formal, state-sanctioned courts and the informal, community-based traditional courts.

While the former, with its strict adherence to codified law and complex procedures, holds sway in urban areas and complex disputes, the latter continues to hold significant sway, particularly in rural areas, where the majority of Zimbabweans reside.

This enduring relevance of traditional courts, and their growing popularity, even in our increasingly digital age, speaks volumes about their deep-rooted connection to the social fabric of Zimbabwean society.

Traditional courts, presided over by chiefs, headmen, and village elders, are as old as the communities they serve.

They are the custodians of customary law, the unwritten body of rules, norms, and practices that have governed community life for generations.

Unlike the formal courts, which often seem distant and intimidating to the average person, traditional courts are intimately woven into the lives of the people they serve.

They are held in familiar settings – under a tree, in a village meeting house, or at the chief’s homestead – and proceedings are conducted in the local language, fostering a sense of accessibility and inclusivity.

Several factors contribute to the enduring appeal of traditional courts. Most important of all is that they are deeply rooted in the cultural values and social structures of the communities they serve.

They understand the nuances of local customs, traditions, and relationships, allowing them to resolve disputes in a manner that is both culturally appropriate and socially acceptable.

This is particularly important in a society like Zimbabwe, where cultural identity and community cohesion remain strong.

Traditional courts are often more accessible and affordable than their formal counterparts.

The formal court system, with its complex procedures, legal jargon, and associated costs, can be daunting and prohibitive for many people, especially those in rural areas who may lack the resources or education to navigate it effectively.

Traditional courts, on the other hand, operate with a more informal approach, emphasising mediation, dialogue, and reconciliation rather than strict adherence to legal technicalities.

The rise of social media has further amplified the reach and influence of traditional courts. While these courts have always relied on word-of-mouth and community gatherings to disseminate their decisions, social media platforms like WhatsApp, Facebook, and community radio stations now provide a powerful means of broadcasting proceedings, sharing outcomes, and reinforcing the authority of traditional leaders.

This increased visibility has, in some ways, enhanced the legitimacy and enforceability of their judgements.

The respect accorded to traditional leaders also plays a crucial role in the effectiveness of traditional courts. Chiefs and headmen are not merely adjudicators; they are also community leaders, cultural symbols, and custodians of tradition.

Their pronouncements carry significant moral and social weight, and disputing parties are often more willing to abide by their decisions, even in the absence of strict legal enforcement mechanisms.

Zimbabwean law recognises the role of traditional courts, though their jurisdiction is limited.

The Customary Law and Local Courts Act [Chapter 7:05] provides for the establishment and operation of these courts, defining their powers and procedures. While they primarily handle civil matters, such as inheritance disputes, marital disputes, and minor delicts, they are generally excluded from dealing with serious criminal matters, which fall under the jurisdiction of the formal courts.

The enforceability of traditional court judgments can be a complex issue. While these courts do not have the same coercive powers as the formal courts (such as the power to imprison), their judgments are often enforced through social pressure, community sanctions, and the authority of traditional leaders.

In many cases, disputing parties comply with the rulings of traditional courts to maintain social harmony and avoid ostracisation from their communities.

However, the relationship between traditional courts and the formal legal system is not without its challenges.

There are concerns about potential conflicts with constitutional rights, particularly in cases involving women and marginalised groups, who may be subject to discriminatory customary practices.

There are also questions about the extent to which traditional courts should be integrated into the formal justice system, and how to ensure that their decisions are consistent with the principles of natural justice and the rule of law. Despite these challenges, traditional courts remain a vital part of Zimbabwe’s legal and social landscape.

They provide accessible, affordable, and culturally relevant justice for a large segment of the population, particularly in rural areas.

In a fast changing world where formal institutions often struggle to meet the needs of diverse communities, traditional courts offer a valuable alternative, a reminder that justice can be found not only in the halls of power but also in the heart of the community.

The enduring relevance of traditional courts in Zimbabwe lies in their ability to adapt and evolve, to blend the wisdom of the past with the realities of the present.

As Zimbabwe continues to grapple with the complexities of modernisation, urbanisation, and globalisation, these courts will undoubtedly continue to play a crucial role in shaping the social, cultural, and legal fabric of the nation.

The growing popularity of local courts is evidence that customary law lives on in the hearts of locals. It reflects a yearning for a relatable home grown justice system as opposed to the justice dispensed by the largely foreign imposed formal court system.

Miriam Tose Majome is a lawyer and a Commissioner with the Zimbabwe Media Commission. She writes in her personal capacity and can be contacted on [email protected]