The Royal Crown Council says the incarceration of Chief Nhlanhlayamangwe Ndiweni for 18 months is an attack on the integrity of the traditional leadership and customary law court system.
In a statement, the Royal Crown Council said the jailing of Chief Ndiweni, who destroyed Fetti Mbele’s property with the assistance of 23 villagers, would render the traditional court system impotent.
“… It is a profoundly dangerous precedent. If we set ourselves on a slippery road of jailing magistrates, judges and chiefs exercising a judicial function for having made decisions we don’t like and allow people to open criminal cases against presiding officers instead of appealing adverse decisions as is the civilized norm, we will destroy the fabric of the rule of law, enact anarchy and undermine the very foundation of the country as a constitutional republic.
“… Persons who are aggrieved with court decisions, including customary court decisions, must avail themselves of the protections our appellate system affords and not resort to opening criminal cases against presiding officers without evidence of criminal wrongdoing.”
The Royal Crown Council said jailing chiefs in office should not be taken lightly.
“It should only happen as a last resort for a clear criminal and corrupt abuse of office. Needless to say in the Chief Ndiweni case this has not been alleged nor are there any allegations that the chief acted out of criminal malice. Therefore any misdirections on fact and or law should have been addressed through standard processes and not incarceration.
“The friction that exists between Roman Dutch Law and our traditional way of life should be resolved not by intimidation but through proper channels. Furthermore, it should never happen that whenever chiefs make decisions in their official capacities and the matter is appealed or taken on review by the aggrieved party, the chief is summoned to defend his judgment in person in the magistrate’s court. It is the record of the customary court that should, like the rest of the court hierarchy, be the basis of the hearing at the next level.”
The Royal Crown Council noted that no magistrate of judge is every summoned to a higher court to defend his or her official decision. “Why should chiefs be treated differently? This anomaly must be fixed without any further delay.”
It called for immediate action in securing the chief’s release, noting that the magistrate’s is shocking.
“… It boggles the mind how an independent and objective person presiding over an independent judicial body would ever arrive at this decision based on the factual and legal basis of the alleged violations. Both the conviction and the sentence are wrong, outrageous, totally irrational and elicit a deep sense of shock in any reasonable person, especially on a charge of alleged malicious damage to property worth RTGS$300 (US$30).
“Where a chief is alleged to have misdirected himself on a point of law or fact in customary court setting, the established procedure is for his decision to be taken on appeal or review in an appropriate court, in this case the magistrate’s court. He should never be arrested.”
The Royal Crown Council, which oversees the Ndebele kingship and other traditional issues, said chiefs don’t president over cases in their individual capacities but they do to in their official capacities and therefore it is unacceptable that a chief can be jailed for a judgment he “reasonably believed to be correct in his interpretation of the culture, traditions, customs and practices of his people.”
It said to imprison a chief for carrying out his duties is tantamount to imprisoning his people’s culture, traditions and customs.
“In a chief’s court decisions are community decisions, they are people’s decisions and are taken as best as possible within the principles of customary rule of law. Can you imagine us jailing magistrates and judges who make judgments we don’t like.
“… There is no reason why the chief should be in prison, let alone serving such an unreasonable sentence. We therefore call on the chief’s legal team to immediately initiate a process of appealing the decision with a view to securing his freedom without delay while other pressure avenues are being explored.”
Bulawayo magistrate Gladmore Mushove convicted Chief Ndiweni (24) and 23 other villagers and sentenced each of them to 24 months of which six months were suspended for five years on condition they did not within that period commit a similar offence.
Chief Ndiweni will serve an effective 18 months in jail while his subjects had their remaining 18 months wholly suspended on condition that they perform 525 hours of community service at local schools and clinics starting Monday.
One of the key witnesses in the case who testified in court is Zanu PF secretary for administration Obert Mpofu.
Chief Ndiweni told the court that Mpofu was allegedly involved in the case after he filed a police complaint claiming that the politician stole his father’s 200 cattle. He claimed that the docket at Mbembesi Police Station disappeared.
Mpofu was unavailable for comment.
Mbele was banished from his Ntabazinduna homestead by the chief after his wife, Nonkangelo Mpengesi, was allegedly caught red-handed having sex with another villager. In July, 2017, Chief Ndiweni ruled that Mbele and his “adulterous” wife should be banished from Sifelani village, noting that “prostitution” is outlawed.
When they refused to leave, he ordered his subjects to destroy the couple’s garden fence and kraal.