‘Colonial-era’ traditional ordinances declared unconstitutional

Is it possible for the institution of chieftaincy and its associated traditions to fit comfortably under a system of democratic constitutionalism? Many African countries are working out how the two can coexist. One of the most recent examples comes from Zambia where three judges of the Constitutional Court have just had to resolve something of a conundrum.

 

At the start of its judgment the court explained the background to the case. A petition had been filed by ‘His Royal Highness Chief Mwene Mutondo Mulubisha of the Nkoya people of Kaoma District in the Western Province of Zambia’. Mulubisha questioned whether sections of Zambia’s Chief’s Act were unconstitutional. If so, the court was asked to declare the offensive sections void.

 

The Constitution itself guaranteed the institution of chieftaincy, saying it would exist ‘in accordance with the culture, customs and traditions of the people to whom they apply’. It also provides that no law shall be made that gave anyone the right to ‘recognise or withdraw the recognition of a chief’. Mulubisha argued that, once this constitutional provision had been enacted, the existing Chiefs Act became unconstitutional and should now be set aside.

 

His argument was that the present legislation on chieftaincy was a relic from the colonial era, but that attitudes, prejudices and provisions from the past ‘continue to inform the current legal order’. The present Chiefs Act traced its origins to the Barotse Native Authority Ordinance of 1936 and the Native Authority Ordinance of the same year. Both required the territorial governor to ‘recognise’ someone as a paramount chief, senior chief or other traditional positions, before those positions could become legally valid.

 

These ordinances also provided for chiefly recognition to be withdrawn or suspended, and gave the governor power to set up an inquiry when there was a chiefly succession dispute.

 

Much of the system begun in those years simply carried over into the legal order of now independent Zambia. For example, one section of the Chiefs Act says that ‘no person’ will be recognised as the holder of an office unless the ‘President is satisfied’ that the person is entitled to hold the office under African customary law.

 

In its present form, the Chiefs Act was ‘a derivative of colonial legislation, imbued with perceptions and prejudices reminiscent of the colonial era and therefore out of place’, counsel for Mulubisha argued. Thanks to constitutional changes, ‘the status of chief was no longer dependent on the act of recognition by the President of any authority but on the people to whom the office of chief applies.’

 

On the other side, the Attorney-General said given the supremacy of the Constitution and the apparently contradictory nature of the Chiefs Act, Mulubisha ‘may be entitled to the reliefs’ he sought. The judges said the supremacy of the Constitution was ‘beyond question’. Therefore, any statutory provision that ‘runs afoul’ of the Constitution was void to the extent of the inconsistency.

 

Thus, the real question for the court to decide was whether the Chiefs Act in fact infringed the Constitution. The section that focused on the recognition of chiefs within Zambia was in the ‘firm view’ of the judges, inconsistent with the Constitution because the President no longer had the right to recognise chiefs. ‘It is for each particular chiefdom to follow their established customary system of selecting and removing a chief.’

 

Flowing from this finding, the other contested sections were similarly unconstitutional, said the judges. The powers under these five disputed sections ‘made the President the ultimate authority in giving legitimacy to any chieftaincy before the amendment of the Constitution in 2016.’ However, under the new constitutional order, the institution of chieftaincy was completely left ‘to the people to whom it applies’.

 

If the President were allowed to appoint a deputy chief, as permitted in the Chiefs Act, for example, that deputy would be the one most likely to assume the position of chief, and thus the relevant section of the Act ‘goes against the principle of non-involvement of the Presidency in the selection of chiefs.’

 

Similarly, the section of the Chiefs Act that allowed the President to ‘exclude’ a former chief from a specified area was based on the President’s statutory power to ‘withdraw recognition’ of a chief or revoke the appointment of a deputy chief. Both were based on presidential powers already held by the court to be void.

 

The judges therefore declared all five of the contentious sections unconstitutional in terms of the amended Constitution, and ordered ‘that they be expunged from the statute book’.

 

Perhaps the most obnoxious example illustrating the mind-set of the colonial rulers and provided in argument by counsel for Mulubisha was this, from a decision in the then-Southern Rhodesia: ‘(S)ome tribes are so low on the scale of social organisation that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of a civilised society. Such a gulf cannot be bridged ….’

 

Judgment 

 

 - Carmel Rickard