Chiefs at the negotiating table
When I first arrived in Harare to take part in the constitution-making process sometime in 2011, I observed that in addition to the three political parties in the Inclusive Government, there was a fourth party at the table. It was the traditional leaders, represented by two chiefs - both of them men. The leader was Chief Fortune Charumbira, the President of the National Chiefs’ Council and the other was his deputy, Chief Mtshane Khumalo. Chief Mtshane Khumalo maintained a dignified presence, never interfering unless he was asked for an opinion. Chief Charumbira on the other hand often had to be stopped and this led to quite a few clashes with the politicians who charged that he was overreaching. I was struck by the irony that the adviser to these representatives of this most patriarchal institution was a woman. It led to some odd moments when the chiefs’ position tended to clash with the principle of gender equality and women’s rights.
I could not understand how traditional leaders had earned a place at the negotiating table when everyone else, including representatives of civil society, the clergy, women, the disabled and various other stakeholders had been excluded. However, as the negotiations went on, it became clear to me that the traditional leaders were effectively a counter-weight for ZANU PF against its two partners in the coalition arrangement, the two MDC formations. Although the MDC formations were different parties, they were invariably in agreement on most constitutional issues. This left ZANU PF on its own. ZANU PF needed a partner to counter-balance its adversaries in the negotiations. The chiefs were permitted to sit at the table but only on condition that they did not interfere in areas that did not concern traditional leadership and culture
Although their remit was limited in that respect, they often tried to use their presence in the negotiating room to budge in, usually to support ZANU PF. This was always met with heavy resistance from the MDC parties, sometimes leading to ill-tempered exchanges. Nevertheless, on the whole, I found them to be duplicitous. Even though they openly sided with ZANU PF, privately, they tried to present themselves as a reasonable and non-partisan. Their chief argument was that chiefs were under pressure from government and they actually wanted to be free and for this they needed our help. They wanted to play nice to us, suggesting that they were not ZANU PF puppets but in fact needed to be protected from ZANU PF. .
We weren’t fooled by these private representations because inside the negotiating room they sang a completely different tune. We took this as no more than an effort by the chiefs to build an insurance facility, just in case ZANU PF lost the next elections. At the time, electoral chances for the political parties were even and there was no guarantee that ZANU PF would win the 2013 elections. After all, ZANU PF had lost the 2008 elections and would have lost power but for the torrent violence unleashed upon voters in the run up to the presidential run-off election on 27 June 2008. So even though the chiefs were in ZANU PF’s corner, they were always mindful of the need to avoid alienating the MDC-T. They did this by trying to present a reasonable face in private while cavorting with ZANU PF in public. We therefore treated them with great circumspection.
This guarded approach towards chiefs at the negotiating table was not without historical context. We knew the institution of traditional leadership was easily manipulated. True, the country had a history of heroic traditional leaders who had resisted colonialism right from its inception, but over the course of time, the institution of traditional leadership had been successfully co-opted into the machinery of the colonial state. These co-opted traditional leaders were a far cry from the heroic traditional leaders of the early years such as Lobengula, Makoni Chingaira, Mashayamombe, Mtekedza and others who fought valiantly to defend their territories against the settlers. It is believed skulls of chiefs that were beheaded in wars between settlers and the local populations in those early years of British settlement are still kept at the Natural History Museum in London.
In the 1960s, Chief Rekayi Tangwena played a prominent role resisting the displacement of his people from their traditional lands in Gairezi. Along with his wife, who was a spirit medium, Tangwena assisted a young Robert Mugabe and Edgar Tekere to cross the border as they went to Mozambique in 1975 to take leadership of the liberation struggle. Chief Tangwena has a street named in his honour in Harare and he was named a national hero when he died after serving as a Senator Chief in the first parliament after independence. Thus the presence of heroic chiefs in history is acknowledged. But they were more the exception rather than the rule. As an institution, traditional leaders, particularly chiefs had long succumbed to the machinations of the colonial state, becoming its puppets.
It is a well-known historical fact that the colonial power, Britain used the strategy of indirect rule in its colonies, especially in West Africa. Under this system, Britain ruled through the agency of traditional leaders in its colonial territories. They identified local chiefs who were essentially puppet rulers. This system was applied with great effect in Nigeria by Lord Lugard where in the Sokoto Caliphate rule was effected through the local emirs. In places where the British met resistance or found no traditional structures of leadership, they simply invented new ones to suit their interests. The latter is vividly and dramatically illustrated by legendary writer Chinua Achebe in one of his classics, Arrow of God, where the British administrator tried to install Ezeulu as a chief. But there were no chiefs in Igbo society and Ezeulu refused to be the “white man’s chief”. This earned Ezeulu punishment by incarceration.
In Southern Rhodesia, after the end of company rule, Britain allowed the settler community to exercise self-government from 1923. The colonial state also relied upon local traditional leaders to exercise its control, hence setting aside Tribal Trust Lands where chiefs had some limited jurisdiction over their local subjects in matters of customary law. Where traditional leaders proved to be difficult, the colonial state simply installed pliable individuals as puppets. This did grievous harm to the institution of traditional leadership, causing distortions and leading to disputes which continue to this day. As many chiefs and traditional leaders were mere puppets of the colonial regime, the nationalist movement viewed them with great scepticism. The frosty relations got worse when chiefs were effectively co-opted into highest levels of the colonial administration. In 1976, some chiefs, namely Jeremiah Chirau, Khayisa Ndiweni, Zephaniah Charumbira and Mangwende, were appointed as Ministers and Deputy Ministers in Smith’s government. Later, Chirau would append his signature to the Internal Settlement of 1978, which was strongly opposed by the militant nationalists. Chirau became the pantomime villain of local politics, mocked and derided by all and sundry.
The role of chiefs in the colonial regime and their antagonism with the black nationalists is confirmed by Ian Douglas Smith in his autobiography, The Great Betrayal. He wrote rather patronisingly, “The chiefs were the true representatives of our black people, but were now running into problems from black politicians who were trying to eliminate a system which would deny them total power in a future government. The chiefs particularly resented the fact that these politicians were resorting to intimidation among the simple unsuspecting tribesmen in order to turn them against their traditional leaders, the Chiefs and the Headmen” (p.68) In fact, Smith presents a defence of chiefs and the institution of traditional leadership, arguing that the notion that they were puppets was peddled by the nationalists in order to undermine them. In his autobiography, Smith complains that the British government did not treat the chiefs with respect when a delegation was sent to London. Overall, the relationship between chiefs and the militant nationalists who led the liberation struggle was frosty. The nationalists believed chiefs were puppets of the colonial regime and did not trust them.
Nevertheless, as with most of the apparatus of the Rhodesian regime, when independence arrived, the new nationalist government led by Robert Mugabe inherited the traditional institutions. Although relations were frosty at the start due to the bitterness sown during the liberation struggle when chiefs were perceived to be instruments of the colonial regime, over the course of time, the new Mugabe regime began to reconstruct and mould the traditional institution to suit its designs. In fact, the chiefs and other traditional leaders turned from being puppets of the colonial regime to being puppets of the new ZANU PF regime. Legislation ensured that Mugabe, through the agency of the Minister of Local Government had the ultimate power to appoint chiefs. Since 10 chiefs were entitled to seats in Parliament, it effectively meant as the appointing authority, Mugabe’s vote was more powerful than the average voters. It gave him the power to tip the balance in his favour in any election. The circle was completed in the early 2000s when Chief Fortune Charumbira was appointed Deputy Minister in Mugabe’s government. His father Chief Zephaniah Charumbira had been appointed to Smith’s Cabinet in 1976. The younger Charumbira is not the first to become President of the National Council of Chiefs. His father served in the same role before he died and was replaced by Chief Mangwende.
The constitutional deal
We were thus well aware during the constitutional negotiations that the chiefs tended to follow the political wind. If the MDC had won the 2013 elections, they would have claimed that they had been supporting the opposition all along. They would have no difficulty switching sides. They had done it before, switching from serving the colonial regime to serving ZANU PF. They would do it again with great ease if the MDC got into power. If ZANU PF won, they would declare their allegiance to the party. This kind of behaviour only served to weaken the reputation of the institution of traditional leadership. There is nothing wrong with traditional leaders supporting and serving the state. But there is everything wrong with traditional leaders serving a political party when they themselves derive their power through hereditary lines and are not subject to competitive politics. Even though we knew they could easily switch sides in the event of an MDC victory, we did not think it was proper to have such a partisan institution as part of the governance structures. If they are not elected, they must at least stay away from party politics.
This was the deal on the table. They were on the negotiating table and they needed a stake in the constitution. It was impossible once they were part of the negotiating process to avoid their inclusion in the constitution. The key was to ensure that their role, powers and functions were clearly defined. In particular, it was important to ensure that their apolitical, impartial and non-partisan role was clearly stated in the Constitution. The result was Chapter 15 of the Constitution, which has specific provisions dealing with traditional leaders – their roles, powers and limitations. More specifically, traditional leaders are prohibited from interfering in political matters. This is clearly stated in section 281(2):
“2. Traditional leaders must not--
a. be members of any political party or in any way participate in partisan politics;
b. act in a partisan manner;
c. further the interests of any political party or cause; or
d. violate the fundamental rights and freedoms of any person”
This is a replica of provisions that apply to members of other important bodies that are created by the Constitution and whose independence and integrity must be safeguarded. These include Independent Commissions such as the Zimbabwe Electoral Commission, members of the Civil Service Commission, members of the Judiciary such as judges and magistrates, heads of the security services such as the army and police generals. It also applies to key public officers such as the Prosecutor General and the Auditor General.
The purpose of this generic clause is to ensure that members of these bodies and key public officers conduct themselves in a professional, non-partisan and fair way. It was designed in recognition of the toxic nature of partisan politics which is plagued by what is known as the problem of factions. It therefore seeks to prevent these national institutions from being contaminated by the problem of factions which afflicts politics. The drafters of the constitution anticipated how these bodies could be easily manipulated by political actors if they were not given protection. In the case of chiefs, this was already evident from the long history of abuse and manipulation by the colonial state and the ZANU PF regime that succeeded it. The provision does not take away their political rights. They can still exercise their right to vote for candidates of their choices. But they cannot, while they hold their positions, be active members of a political party or act in a partisan manner or promote the cause of any political party or cause. If they did so, they would undoubtedly be in violation of the Constitution.
Needless to say, securing these provisions during the constitution-making process was a tough struggle, with ZANU PF and chiefs generally united in resistance. This was consistent with their general approach during the entire process which was characterised by opposition towards any proposition that appeared to limit powers of public authorities. ZANU PF benefited from the support it got from the chiefs and in return it tended to support the chiefs however unreasonable their demands might have been. In the end, however, Chapter 15 was a fair compromise: the chiefs got recognition but the deal was that they keep away from partisan politics. It is this deal what is captured in the principles outlined in section 281(2) of the Constitution.
However, ZANU PF’s political victory in the 2013 elections gave both the party and chiefs the liberty to run roughshod over the Constitution, evident in the refusal to comply with provisions that they did not like. This is partly why the ZANU PF regime has completely treated the whole chapter on devolution as if it is not part of the Constitution. It is hardly surprising that chiefs have virtually disregarded section 281(2) since the Constitution was approved in 2013. They are not the only ones who have given short shrift to provisions that demand non-partisanship on political grounds. In the security sector, some Generals have also disregarded these provisions, choosing to align themselves with and to further the cause of ZANU PF. The irony is that they seek to present themselves as the ultimate guardians of the Constitution – the very same document they are violating by openly taking political sides.
Like some of the security services generals, traditional leaders are regularly seen at ZANU PF gatherings. At the recent national chiefs’ conference in Bulawayo, Chief Charumbira openly declared chiefs’ support for ZANU PF and Mugabe. In the rural areas, traditional leaders act as political commissars of the ruling party. They mobilise and monitor rural voters to ensure that they vote for ZANU PF. In return, ZANU PF gives them gifts and other trinkets. This is why, just a few months before the next elections, the ZANU PF regime is awarding them new utility vehicles. They are essentially bribes to ensure that traditional leaders are incentivised to campaign for ZANU PF in the 2018 elections. The institution of traditional leadership has suffered severe damage in the estimation of the public which knows traditional leaders have long been puppets of the establishment, dating back to the colonial days. Chief Charumbira is leading the slide of this institution into obsolescence. By their partisan conduct, they are making themselves irrelevant.
What’s to be done?
There is a clear case of constitutional violation against the chiefs and in particular, Chief Charumbira who made utterances that were clearly politically partisan. Those statements were in breach of section 281 in that they showed the chiefs to be participating in partisan politics and they were furthering the interests of or cause of a political party. This is precisely what section 281 strictly forbids. There have been similar utterances in the past. There can be no doubt that Chief Charumbira would be found to have contravened his constitutional duties. Furthermore, these chiefs are likely to attend ZANU PF’s Extraordinary Congress in December. They have attended such occasions before. They really should not be doing that as they must be above party politics.
When there is a violation of the Constitution, one can take legal action seeking a declaration from the court to the effect that there is such a contravention. This declaration of unconstitutionality is important because it establishes the illegality of the conduct. When there is a likelihood that the Constitution will be violated, one can take out an interdict to stop that person from doing anything that would contravene the Constitution. One can also seek an order compelling an authority to take any action necessary to ensure compliance with the Constitution. The Constitutional Court set an important precedent in the case of Jealousy Mawarire v Robert Mugabe and others in 2013. In that case, Mawarire demanded that the President must fulfil his constitutional obligations in order for elections to be held so as to avoid breaching the Constitution. It was the case that plunged Zimbabwe into an early election without reforms but whatever the political arguments against the outcome, it set a precedent that if a citizen is unhappy with the conduct of public authorities with duties under the Constitution, they could take legal action to compel them to comply.
Likewise, since it is clear that chiefs are trampling upon section 281 of the Constitution, it only requires one citizen to bring legal action for a declaration confirming breach and an order compelling them to comply with the Constitution. It requires just one citizen to take legal action to stop them from actively participating in ZANU PF politics, making partisan political utterances and even attending ZANU PF political events such as the ZANU PF special congress in December.
Reforming the institution
In the past, women have been excluded from traditional leadership, with their male counterparts dominating. This explains why the vast majority of chiefs today are males. Just 5 years ago, the Council of Chiefs reported that there were only 6 female chiefs in the whole of Zimbabwe. When a young Sinqobile Mabhena was installed in the Nswazi communal area in 1997, succeeding her father Chief Howard Mabhena, it was a ground-breaking occasion. “I know many people are opposed to me becoming chief because I am a woman. I will prove to them that I can work as much as a man. Being a woman doesn’t mean you are disabled,” Mabhena said at the installation ceremony in 1997. Although some chiefs attended the historic ceremony, several chiefs and political figures opposed to a female chief were said to have boycotted the ceremony. Twenty years later, Mabhena is still one of less than 3 per cent of the 266 chiefs in Zimbabwe. There is need for significant reform to this institution to reflect the principle of gender equality.
This is supported by the foundation upon which the constitution is built, which includes gender equality as a major right and principle. The Constitution clearly envisages that both men and women can become traditional leaders. For example, section 280(2) states, “A traditional leader is responsible for performing the cultural, customary and traditional functions of a chief, headperson or village head, as the case may be, for his or her community.” The reference to “headperson” instead of the traditional “headman” and the reference to “his or her community” clearly demonstrate that the institution is not exclusively designed for males only. Any objections based on culture and tradition are weak, as both culture and tradition are not static but move with the times. Society has embraced gender equality as one of the fundamental values and rights and this must reflect in the selection of traditional leaders as in other areas of society. Where therefore, parts of society reserve these positions for males, this must be challenged. In any event, section 2 of the Constitution clearly provides that the Constitution is the supreme law of the land and as such provisions of the Declaration of Rights pertaining to gender equality and non-discrimination trump any cultural rules that prevent women from the lines of succession.
As a show of leadership, National Council of Chiefs must reaffirm its commitment to gender equality and reform of attitudes towards women by ensuring that its top leadership is shared between men and women. In this regard, if the President of the NCC is male, the Deputy President should be female. This ensures that as a minority in the community that is traditionally male-dominated, female traditional leaders have representation at the top level. There is already a precedent in the Constitution with section 320 (4) providing that where a “commission has a chairperson and a deputy chairperson, they must be of different genders”. Section 104(4) also requires the President to be “guided by considerations of regional and gender balance”. There has never been a female President or Deputy President of the NCC. The regional bias in the leadership is also evident. Since 1973 when Chief Chirau became the President of the NCC, his successors have all been drawn from ethnic groups in Mashonaland or Masvingo provinces. As is the case in other areas, the highest that chiefs from ethnic groups in the Matebeleland region have ever reached is Deputy President. Over time, this breeds ethnic resentment.
The issue of political impartiality and fairness is important because chiefs have a major presence in Parliament. In terms of section 120(1)(b) and (c.) there are 18 chiefs who have seats in the Senate. Statistically chiefs occupy 22,5% of Senate, more than a fifth. The President of the National Council of Chiefs and his or her Deputy have 2 seats and each of the 8 provinces elects 2 chiefs to the Senate. If chiefs take political positions, it means they will affect the balance of power in Parliament, giving more weight to the party they support. This is precisely why section 281(2) prohibits them from taking political roles.
In conclusion, the chiefs and other traditional leaders have long been used as puppets of the incumbent since the colonial days. They sway along with the most powerful. It is not surprising that they are openly and unashamedly declaring their allegiance to ZANU PF. This does not mean all chiefs have gone rogue. There are probably some chiefs among the 266 in the country who are reasonable, dignified and above partisan politics but their voices are drowned out by the noisy ones at the top. This is unfortunate. The reasonable ones should learn to speak out and defend the honour of their offices. Silence only makes them complicit in the mutilation of the Constitution. It is important for opposition parties and civil society to consider legal action to defend and protect the Constitution against these clear violations. It is clear from the utterances of Chief Charumbira that he is wilfully trampling on the Constitution, which as a Senator he is sworn to defend and protect. There is no reason why he and the Chiefs Council over which he presides should not be brought to book. The chiefs had the cheek to threaten the Daily News with a lawsuit after the newspaper reported that the chiefs were supporting ZANU PF. A month later they were making declarations of support for Mugabe and ZANU PF. Now that they have been granted gifts of new utility vehicles, they will intensify their rhetoric and active support for ZANU PF, all of which is contrary to the Constitution. There is every reason to defend and protect the Constitution. Overall, the institution is in need of serious reform. With less than 3% of chiefs being women, there is need for greater diversity. Maybe with more diversity, the institution will become more open and inclusive. Maybe its approach will change in keeping with the times. If it fails to reform, the institution will become irrelevant to future generations and it will eventually fall into obsolescence.