Zimbabwe - Customary law – Preconditions
Zimbabwe
BACKGROUND
Binga District, situated in the Zambezi Valley, is mainly inhabited by the Tonga and Ndebele. The Tonga are the majority inhabitants of the area and regard the Ndebele as newcomers. Tonga people identify strongly with the Zambezi River, this being the centre of their economic, social, religious, cultural and environmental livelihoods.
In the pre-colonial period, until 1888, the Tonga were a stateless society, known for having no paramount chief and historically were a matrilineal society.
The colonial administration by introducing chiefs and headmen disrupted Tonga's age-old egalitarianism and led to the solidification of fixed boundaries across and between villages as well as the introduction of new ways of dealing with criminal cases that were centred around the chief’s court.
The construction of the Kariba Dam along the Zambezi River, with the related forced relocation in land of small size and poor quality, significantly impacted the lives and livelihoods of the Tonga who were directly and heavily reliant upon the Zambezi River landscape. Indeed, the colonial government established fishing camps far away from resettlement areas, and only men were allowed at these fishing camps. At the same time traditional and cultural wildlife management systems were abrogated and criminalized by introducing the need of hunting permits.
Even with political independence in 1980 the Tonga continued being marginalized, without rights to manage and benefit from wildlife resources in the safaris and national game parks abutting their new villages. The attempt to extend these rights to the local communities by granting the right to use wildlife in communal areas to Rural District Councils (RDCs), has in fact led to tensions between communities and RDCs on revenue-sharing arrangements.
The 2013 Constitution expressly recognizes customary law and customary institutions. It recognizes the role of traditional leaders in resolving disputes among people in their communities in accordance with customary law. It also establishes a dual court structure, recognizing customary law courts whose jurisdiction consists primarily in the application of customary law.
Besides the Constitution, there are several statutes which recognize customary law. These include the Customary Law and Local Courts Act (CLLCA), the Traditional Leaders Act, the Communal Land Act, and the Environmental Management (Access to Genetic Resources and Indigenous Genetic Resource-based Knowledge) Regulations, 2009. All law, customary and statutory , is subject to compliance with the Constitution of Zimbabwe. Any law inconsistent with it is invalid to the extent of the inconsistency.
According to the CLLCA, customary law is still applied in civil matters where the parties have agreed. Local courts are presided over by chiefs and have jurisdiction over any civil case in which customary law is applicable. However, their jurisdiction is excluded, among others, where the claim is not determinable by customary law; or where the claim or the value of any article claimed exceeds a certain amount; or also to determine rights in respect of land or other immovable property.
The Traditional Leaders Act governs the structure of traditional leadership and its duties, which include the resolution of disputes and management of natural resources. Furthermore, traditional leaders have to be consulted in the allocation of communal land under the Communal Land Act. However, customary law’s application is not always recognized in sectoral legislation, particularly in the management of wildlife. Indeed, while the Environmental Management (Access to Genetic Resources and Indigenous Genetic Resource-based Knowledge) Regulations, 2009, provide for community rights over genetic resources, including animal genetic material, the Parks and Wildlife Act (PWA) does not expressly mention any form of customary hunting that traditionally occurred for both subsistence and cultural purposes.