JURISPRUDENCE AND COURT CASES This section deals with legal recourse for misfeasance by traditional leaders, judicial remedies and the challenges faced in this type of litigation. The analysis is based on cases decided since the 2013 Constitution was enacted. ELECTION RESOURCE CENTRE VS CHIEF CHARUMBIRA AND OTHERS The cases of Election Resource Centre vs Chief Charumbira and others [HH 270/18] and Elton Mangoma and Another vs Chief Charumbira and others [HCMSV 92/18],55 both expose the controversy surrounding the role of traditional leaders in Zimbabwean politics. In both cases, Chief Fortune Charumbira, the President of the Chiefs’ Council, is accused of acting unlawfully and unconstitutionally. It was alleged that, during an address at the Annual Chiefs’ Conference on 28 October 2017, he made remarks to the effect that traditional leaders have been supporting and must continue to support ZANU PF and its presidential candidate. He was quoted thus: As Chiefs, we agreed during the 2014 congress that Cde Mugabe is our candidate for the 2018 elections. We are all united and he is still our candidate. We have been supporting him and we can confirm that winning is guaranteed.56 He repeated those remarks again on the 13th of January 2018. Among other things, Chief Charumbira said: Some people were saying at your conference in Bulawayo you, chiefs said you will support the party in power. That is the truth and you ask why we have said it.57 55 56 57 58 59 16 The Court declared the utterances by Chief Charumbira to be in clear violation of section 281(2) of the Constitution and section 45 of the Traditional Leaders Act. The Court ordered as follows: Chief Charumbira to retract in writing the statements that he made to the effect that traditional leaders should support and vote ZANU (PF) by issuing a countermanding statement in a newspaper with national circulation and endeavour to make the statement available to private and public media houses and the national broadcaster within 7 days of being served with this order.58 Chief Charumbira ignored the court order and remained adamant. Instead, he made further utterances at the ZANU-PF Annual Conference in December 2018 restating institutional support to the ruling party: The problem is that some in the audience are nervous. They were actually saying, ‘chiefs, why don’t you leave politics’ and I said ‘no, chiefs are doing their job... Those in Zanu-PF must not be more nervous than the chiefs themselves when we’re working with you. Some of you are nervous and are actually discouraging the chiefs … We will not stop coming. Those who want to go to court, we’ll meet in court. Zanu-PF is the party of chiefs.59 [Emphasis added] In 2019, the Election Resource Centre filed a criminal case against Chief Charumbira. The media was awash with reports of the Chief’s imminent arrest. However, this did not happen and, to date, the court order remains unenforced. Chief In this case, the High Court banned and prohibited all traditional leaders from making further political statements on their involvement and allegiance to ZANU PF on any public platform. A further ruling was made in that case on the fact that traditional leaders, who include Chiefs, Head Persons or Village Heads as provided in section 280(2) of the Constitution, must not be involved in partisan politics as this is a violation of the right to a free and fair election as provided for in terms of section 67(a) of the Constitution. Conducting campaigns on behalf of the ruling party by traditional leaders was ruled to be unconstitutional and a violation of the right not to be treated unfairly or in a discriminatory manner on the basis of political affiliation. Pg 3 of the judgement. As above. At p 1 of the judgment, particularly para 2 of the relief sought and obtained. See: ‘Chief Charumbira dares Zanu PF rivals’ The Daily News 30 December 2018; ‘Charumbira defies court again as he declares chiefs’ support for Zanu-PF’ Bulawayo24 News 15 December 2018.