6
HH 270-18
HC 1718/18
fundamental human right for freedom enshrined in [Chapter 4] is entitled to a
full measure of effective protection under the constitutional obligation imposed
on the State. The right of access to justice, which is itself a fundamental right,
must be made available to a person who is able, under each of the rules of
standing to vindicate the interest adversely affected by an infringement of a
fundamental right, at the same time enforcing the constitutional obligation to
protect and [promote the right or freedom concerned.’
Loveness Mudzuru & Ruvimbo Tsopodzi v Minister of Justice, Legal &
Parliamentary Affairs N.O & Others, supra, at p 14 of the unreported
judgment.”
JURISDICTION
This court is also satisfied that it has jurisdiction to deal with the present matter in terms
of s 86 of the Constitution.
Section 86 provides that
“(1)
(a)
(b)
(c)
(d)
(e)
any person acting in their own interests;
any person acting on behalf of another person who cannot act for themselves;
any person acting as a member or in the interest of a group or class of persons;
any person acting in the public interest;
any person acting in the interest of its members is entitled to approach a court
alleging that a fundamental right in this chapter has been, is being or is likely
to be infringed, and the court may grant appropriate relief, including a
declaration of rights and an award of compensation.
The Role of Traditional Chiefs
In its heads of argument the applicant submitted that Traditional Chiefs perform a
mixture of administrative and judicial functions. They also perform ceremonial religious
functions. They also discharge judicial functions when they preside over customary law courts.
The applicants submitted that when it comes to the concept of separation of powers,
that is the hallmark of the Constitution, traditional leaders, are a sui generis creative since their
functions plan what they have both legs in both the executive and the judiciary. When Chiefs
discharge judicial functions they would have to respect the principles of objectivity,
impartiality, absence of bias and basic principles of natural bias.
Applicants submitted that;
“Section 45 of the Traditional Leaders Act prevents traditional leaders from standing for or
holding any political office as President, Parliamentarian or Councillor while they hold office
as traditional leader. It also proscribes participation in political activities by Chief including
canvassing, serving as election agents or manager for any candidate, for the election as State
President, member of Parliament or Councillor. But, like all other citizens the proviso in section
45 guarantees for traditional leaders the right to exercise their right to vote in any National or
Local Government election or referendum.”
The applicants also submitted, in its heads of argument that a rule excluding the right
of traditional leaders from participating in and becoming members of political parties is a law