Moffat Mungazi
Rodgers Irimayi
Cultural Perspectives
ZIMBABWE has a hierarchical court system which has several types of courts, with the highest being the Constitutional Court followed by the Supreme Court, High Court, Magistrates’ Court and Traditional (Community) Court as the lowest in ranking.
There are other referral courts that handle different types of special cases, but I will focus on the Traditional Leaders’ Court which the Constitution of Zimbabwe recognises, and places under the jurisdiction of traditional leaders within the context of governance at local rural settings.
Traditional leaders have judicial as well as customary powers vested in them.
The Customary and Local Courts Act, Chapter 7:05 of Zimbabwe provides the legal framework for the establishment and functioning of customary law courts in the country.
This legislation recognises the role of traditional leaders and local communities in administering justice.
These courts, often referred to as chief’s courts or traditional courts, are presided over by chiefs, headmen and village heads. They focus on resolving disputes within their communities based on customary law and local traditions.
They provide an alternative dispute resolution mechanism which is basically rooted in informal customary law and practices. Some traditional courts assist in regulating social norms and expectations in a community by addressing violations of communal codes of conduct.
As these courts operate within limited jurisdiction, they preside over specific matters such as family disputes, land and boundary disputes, stray livestock and other minor offences, but cannot handle more serious criminal cases or civil matters outside their scope.
Theirs are disputes related to land disputes, property rights, family squabbles, divorce, inheritance issues, child custody arrangements, and to a limited extent gender based violence cases.
The traditional court incorporates informal practices characteristic of traditional dispute resolution, while still aiming to ensure fairness even on issues of light criminal cases such as theft of chickens, vegetables or maize from garden. Offenders normally pay fines not as cash, but in kind in the form of livestock or grain.
Traditional courts normally focus on restorative justice such as reconciliation between parties rather than punitive measures for wrongdoing.
The main aim here being to provide a resolution that restores harmony in the community rather than simply punishing offenders.
All serious criminal cases are handled by the Magistrates’ Court and above. In cases of murder, the traditional courts do not handle such criminal cases, but assist families to accommodate each other through compensation and appeasements.
Some cases take dual pathways where a murder case is taken to the High Court and on the other hand, the families take the cultural way where the traditional court is involved.
The traditional court system sometimes faces several limitations when cultural biases take centre stage.
Some decisions made by traditional leaders may be influenced by cultural biases leading to gender inequality. Such biases potentially disadvantage women and marginalised groups within the community.
In trying to solve a murder case, some traditional courts may ask for a girl child and heads of cattle to be used to compensate the family of the dead.
The Zimbabwean system has since moved away from such abusive practices of appeasing avenging spirits with the girl child, and it is an offence to continue doing it.
While many believe that the avenging spirit of the dead may be forcing them to use the girl child as compensation, it is now high time for families to safeguard themselves from going against the law. It is not permitted.
Lack of knowledge may result in inconsistent procedures being followed by traditional courts. There is often lack of standardised procedures across different traditional courts, and this leads to inconsistencies in how cases are handled and decided.
The qualification to become a traditional leader in Zimbabwe is just inheritance which does not consider any formal education. Therefore, handling of cases vary as courts procedures are according to the way preferred by the traditional leader and his assessors, not according to any book.
Most traditional leaders have no formal legal training or knowledge of contemporary laws, which can result in decisions that do not align with national or international standards for justice.
Sometimes traditional courts succumb to pressure from elders and community leaders. The influence of powerful community members can affect the impartiality of traditional courts, leading to biased outcomes that favour certain individuals or groups.
In many cultures where respect for elders is paramount, elderly mediators may dispute decisions based on communal values rather than formal legal standards.
The traditional courts are limited when it comes to applying the legal knowledge based on Criminal Procedure and Evidence Act, Chapter 9:07 and the Criminal Law (Codification and Reform) Act, Chapter 9:23 which are crucial pieces of legislation that govern the criminal justice system in the country.
Cases of armed robbery, rape, murder and arson are serious crimes which are handled by the Magistrates’ Court level and above.
It should also be noted that even when the small cases handled at the traditional courts reach a deadlock and one needs a review of the case, they can be referred to the Magistrates’ Court.
When one feels that the judgment by a traditional court is not satisfactory, the system in Zimbabwe provides access for appealing to higher courts.
Appealing a judgment from a traditional court in Zimbabwe involves a specific process, as these courts operate under customary law, which may differ from the formal system. It is prudent to ensure that your case falls within the scope of matters that can be appealed from a traditional court to higher courts.
There is need to identify valid grounds for appeal of which most common grounds include unjust and procedural irregularities.
Appealing a case to higher courts may be caused by lack of due process as expected, or misapplication or misunderstanding of customary law principles, or even by forthcoming of new evidence that could not have been presented during the original hearing.
Zimbabwe’s judicial system has legislations that provide frameworks to be followed when dealing with cases for ensuring there are fair trial rights.
Traditional courts play a pivotal role in solving cases at community level. It is proper for traditional leaders to be trained and given the basic knowledge in procedures to follow when handling cases within their areas of jurisdiction.
There is provision for appeals for judgments made in customary courts to higher judicial bodies if parties believe a decision was unjust or improper.
Rodgers Irimayi is the Ministry of Information, Publicity and Broadcasting Services Masvingo Provincial Information Officer. He writes in his personal capacity and can be contacted on +263778246098 or [email protected]
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