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Published online by Cambridge University Press: 28 July 2009
In February, 1981, the Customary Law and Primary Courts Bill was “celebrated” into law by the Parliament of Zimbabwe. It was swept into being with the reforming fervour which the new government brought to an independent Zimbabwe. The debating chambers, and loudspeakers at country-wide mass rallies, echoed with condemnations of the previous customary court structures and with the promise of popular justice and people's courts. Whether the legislation was “revolutionary” is arguable, but the atmosphere of its birth is an important indicator of its nature—a people's government was providing for a people's law. This article is mainly concerned with the changes in court structure and jurisdiction brought about by the Customary Law and Primary Courts Act. However, some observations on the early life of the primary courts, and on other matters of law reform in Zimbabwe, are necessary in order to breathe life into the legislative discussion. Many of these observations are personal—gleaned from field research into the primary courts in Zimbabwe between April, 1982, and February, 1983.
1 See Seidman, R., “How a bill became law in Zimbabwe—On the problem of transforming the colonial state”, (1983)Google Scholar (forthcoming). This article discusses in some detail the drafting and passing of the Customary Law and Primary Courts Act.
2 The Customary Law and Primary Courts Act, (Act 6 of 1981: “The 1981 Act”), as amended by the Customary Law and Primary Courts Amendment Act, (Act 21 of 1982: “The 1982 Act”). Unless otherwise indicated, all references include the amendments.
3 Here I adopt Santos's detinition of “revolutionary”, to mean that the primary court legislation would be revolutionary if it linked the struggle of the working class to the socialist revolution: Santos, B., “The law of the oppressed; the construction and reproduction of legality in Paragada”. (1977–1978) 12 Law and Soc. Rev. 5, at 101Google Scholar.
4 I wish to record my gratitude to the University of London for a grant from the Central Research Fund, which assisted greatly with the expenses of this field research in Zimbabwe.
5 See, e.g., Child, H., The History and Extent of Recognition of Tribal Law in Rhodesia (2nd ed.), Ministry of Internal Affairs, Rhodesian Government, 1975, Chap. 12Google Scholar; and Bennett, T., “The African court system in Rhodesia; an appraisal”, (1975) 15 Rhod. L. J. 103Google Scholar.
6 See Morris, and Read, Indirect Rule and the Search for Justice, Oxford, 1972Google Scholar; and Bennett, T., “Conflict of laws; the application of customary law in Zimbabwe”, (1981) 30 I.C.L.Q. 59, at 68Google Scholar.
7 See Passmore, G., The National Policy of Community Development in Rhodesia, Dept. of Political Sc, University of Rhodesia, 1972Google Scholar.
8 See Bennett, p. 145, n. 5. The Rhodesian court structure is described fully in Allott, A. (ed.), Judicial and Legal Systems in Africa (2nd ed.), London, 1970Google Scholar, at 222 ff. and 289 ff. The diagram used therein (p. 309) is more detailed than the framework set out in Fig. 1 above, but it is departed from here because it does not illustrate the triadic nature of the structure.
9 Column “A”: the High Court Act (cap. 14) and the Magistrates' Court Act (cap. 18); Column “B”: the African Affairs Act (cap. 228); Column “C”: the African Law and Tribal Courts Act (cap. 238). The references in this article to “cap. X” are to Chapters of the Statute Law of Rhodesia (rev. ed., 1974).
10 See Bennett, , p. 70, n. 5Google Scholar.
11 S.3(l) of cap. 238.
12 Bennett, T., “Practice and procedure in district commissioners' courts”, (1976) Rhod.L.J. 109, at 114.Google Scholar
13 S.13 of the Magistrates' Court Act (cap. 18).
14 S.5(l) of the African Affairs Act (cap. 228).
15 S.6 of cap. 228.
16 See Bennett, n. 12.
17 S.5(2) of cap. 228. These limits were two thousand dollars (ZD 2,000) in respect of “liquid documents” and ZD 1,000 in other cases (£1 = ZD 1·5 approx.).
18 The C.A.A.C.C. had a status approximating a division of the High Court. For example, the President had to be a former High or Water Court judge and C.A.A.C.C. judgments were reported and regarded as precedents in lower courts.
19 E.g., Child, n. 5, above; Storry, J., Customary Law in Practice, Cape Town, 1979Google Scholar.
20 “African” was defined in the Interpretation Act (cap. 2), s.3 as including a member of any of the aboriginal tribes of Africa.
21 S.2 of cap. 237.
22 Id.
23 S.3(l) of cap. 237.
24 S.3(l) of cap. 237.
25 S.3(2) of cap. 237.
26 S.3(3) of cap. 237.
27 S.3(5) of cap. 237.
28 S.9(3) of cap. 237.
29 S.10 of cap. 237.
30 S.9(l)of cap. 237.
31 S.18 of cap. 237.
32 These were theft of, or damage to, limited categories of property of below ZD 40 in value, and contraventions of certain local government by-laws (s. 12 of cap. 237).
33 S.13 of cap. 237.
34 S.16 of cap. 237.
35 S.19 of cap. 237.
36 S.20 of cap. 237.
37 S.21(7) of cap. 237.
38 S.23 of cap. 237.
39 S.21(4) of cap. 237.
40 On this, see Chavanduka, G., A Shona Urban Court, Gwelo, 1979Google Scholar.
41 Some of this criticism is discussed by Bennett, , n. 5 above, 150–151Google Scholar.
42 See generally Goldin, B. and Gelfand, M., African Law and Custom in Rhodesia, Cape Town, 1975, chaps. 1 & 5; and Passmore, n. 7 above, 147Google Scholar.
43 E.g., see Bennett, , 147Google Scholar.
44 This is certainly the view of the only Black author who has discussed the subject: see Chavanduka, n. 40, above.
45 S.2 and 10 of the 1981 Act (cap. 6).
46 The change was made by the Constitution of Zimbabwe Amendment Act (No. 2), (25/1981), and the High Court of Zimbabwe Act, (29/1981).
47 Discussed above, s. 31 of the 1981 Act (cap. 6) repealed the whole of cap. 237 and those parts of cap. 228 which dealt with C.A.A.C.C. and district commissioners' courts.
48 See, for example, Zimbabwe Hansard 3 02, 1981, Minister of Justice's address to the Seminar for Village Court Presiding Officers at Fort Victoria 16 November, 1981 (unpublished)Google Scholar.
49 Although it must be accepted that “customary disputing” has generally been characterized by its participatory nature: see, e.g., Chavanduka, n. 40, above.
50 The one exception is discussed in Chavanduka, op. cit.
51 Minister of Justice, introducing the Customary Law and Primary Courts Bill—Hansard 3 02, 1981Google Scholar.
52 Ministry of Local Government statistics 24 June, 1982, show that at least 10 per cent, of all chiefs and headmen were killed in the war. The response of the government of the day was to gather as many traditional leaders as possible in “protected villages”.
53 It appears that the ZANLA and ZIPRA guerrilla movements, and their political wings ZANU (PF) and (PF) ZAPU, followed different strategies in this regard, and the growth of kangaroo courts in Matabeleland was much more limited.
54 See Hansard 3 02, 1981Google Scholar.
55 Id.
56 See the District Councils Act (cap. 231); the Chiefs and Headmen Act, (29/1982); the Communal Lands Act, (20/1982).
57 See Passmore, n. 7, above.
58 S.8(l)(a) of the 1981 Act.
59 This is discussed further below.
60 E.g., the integration of the military forces.
61 Other good examples of this can be seen in the Land Tenure and Industrial Relations Bills.
62 S.2 of the 1981 Act.
63 Dare repamusha. or inkundhla yekaya (depending on the area): s.7 of the 1981 ActGoogle Scholar.
64 S.8 of the 1981 Act.
65 S.10 of the 1981 Act.
66 S. 11 of the 1982 Act increased the financial limit from ZD 200 to ZD 500 in December 1982.
67 S 19 of the 1981 Act.
68 Ss.8, 10 and 19 of the 1981 Act.
69 S. 12(3) of the 1981 Act.
70 S.I 1(2) of the 1981 Act.
71 S. 14 of the 1981 Act. Common law offences include theft of, or malicious injury to, any property up to ZD 200 in value, and assaults which do not involve the use of a weapon, or which do not cause grievous bodily harm. The listed statutory offences are mainly contraventions of local by-laws.
72 S.(4a) of the 1981 Act.
73 S. 20(5) of the 1981 Act.
74 Ss.21 and 22 of the 1981 Act.
75 S.10 of the 1981 Act.
76 S.12(l)(a) of the 1981 Act.
77 S.12(l)(c) of the 1981 Act inserted by s.4(a) of the 1982 Act.
78 See, e.g., Goldin and Gelfand, op. cit. n. 42, 245.
79 Id.
80 Ss.14, 14A and 14B of the 1981 Act. The principal Act here was substantially amended by ss.5 and 6 of the 1982 Act.
81 S.19(2)ofthe 1981 Act.
82 The Act is silent on this, but the Primary Courts (Appeals to District Courts) Rules, 1981 (S. I. 717 of 1981) provide for the community court record to be sent to the district court and for the district court to reopen proceedings (Rule 33). This Rule also purports to allow the district court to remit the matter back to the community or village court, although this power is not given in the principal Act.
83 S.4(a) of the 1981 Act.
84 S.4(b) of the 1981 Act.
85 S.22 of the 1981 Act.
86 S.19a of the 1981 Act inserted by s.10 of the 1982 Act.
87 Ss.22(2) and 19A(2) of the 1981 Act.
88 S.14E(1) of the 1981 Act (as inserted by s.6 of the 1982 Act).
89 S.14E(l) (ii) (b) and (c) of the 1981 Act.
90 S.14E(2) of the 1981 Act.
91 S.65 of the Magistrates' Court Act (cap. 18).
92 S.22(4) and 19A(4) respectively of the 1981 Act.
93 S.17(1) of t h e 1981 A c t.
94 The Community Court (Civil) Rules, 1981 (S.I. 809/1981), and the Village Court Rules, 1982 (S.I. 755/1982).
95 Rule 4(1) of S.I. 809/1981.
96 Rule 11 of S.I. 809/1981.
97 Rule 13 of S.I. 809/1981.
98 The in forma pauperis proceedings are under the Rules of the High Court (General Division) and Magistrates' Court.
99 The “means test” is that the applicant does not possess “sufficient means to enable him to pay the court fees and messenger's charges … ” (Rule 22(3)).
1 Rule 22(3).
2 Rule 22(4).
3 Rule 22(5).
4 Order 5 of S.I. 809/1981.
5 Village Court Rules, 1982, S.I. 755/1982 (Rule 8).
6 Both of these “laws” are defined in s.2 of the 1981 Act.
7 This is reinforced by s.10, which requires that primary courts apply only customary law.
8 S.3(l)(a) of the 1981 Act.
9 S.3(l)(b) of the 1981 Act.
10 S. 10(2) of the 1981 Act.
11 S.3(4) of the 1981 Act.
12 S.12(3) of the 1981 Act (inserted by s.4(b) of the 1982 Act).
13 Under the heading “Law Reform”.
14 Mr. Justice Brobbey, a Ghanaian High Court Judge, was seconded by the Commonwealth Secretariat to the Zimbabwean Ministry of justice. This is an excellent example of the substantial Commonwealth assistance to Zimbabwe. Indeed, international aid has been very important to the primary court structure, not only in the provision of key personnel, but also through financial assistance for the various training programmes. (The main donors have been the Commission of European Communities and Broderlijk Delen through the Zimbabwe Project. The American Ford Foundation has also assisted.)
15 Including researchers.
16 See below, p. 112.
17 The new Ministry of Local Government and Housing was the custodian of the previous customary court structure. In many areas, officials of the ministry were extremely reluctant to part with buildings and office equipment.
18 The Act provides that the presiding officer will choose his assessors (s.4 of the 1981) Act, but this was not the practice.
19 But when this court was visited, it was found that her male assessors objected strongly to her election, and the court was not functioning.
20 S.4(4) of the Constitution of Zimbabwe Amendment (No. 2) Act, (25/1981).
21 The 1982 Act.
22 S.93(4) of the Zimbabwe Constitution Order, 1979.
23 Lowenson, R. and Gelfand, M., “Customary law cases in two Shona chieftainships”, (1980) XII 2 NADA (Native Affairs Dept. Annual) 130.Google Scholar
24 Bulawayo District Appeal of 1982.
25 Gutu Community Court Case of 1981.
26 Act 15 of 1982.
27 See Goldin and Gelfand (n. 42), 209.
28 See Goldin and Gelfand, op. cit. and Child (n. 5), 79.
29 Santos, Cf. B., “Law and community: the changing nature of state power in late capitalism” (1980) 8 Int. J. of Sociology of Law 379Google Scholar.
