King Lobengula Installation. A legal analysis.

Izibongo Zika Lobengula KaMzilikazi KaMatshobana

Ngwalongwalo kaMatshobana!
Watshonaphi, Mzac’omnyama
Otshay’izinkomo lamadoda.
Nkub’enkulu yamahlathi,
Eth’ezinye zitshiy’umzila,
Yona ingatshiyi lasonjwana.
Silwane samahlathi!
Ezinye ziyathungatheka,
Kanti lesi sakwaKhumalo
Sadabula singatshiyi mkhondo.
Amadoda wonke amangele,
Kwaze kwamangala lezinja ezimhlophe
Ukuthi watshonaphi, Khumalo.
Ngangelizwe uyindab’enkulu!
Wal’ukuthunjwa yizizwe
Wakheth’ukuf’ukhulekile
Ithuna lakho liyakwaziwa ngokhokho kuphela, ngangezwe!
_Translation_

The Praises of Lobengula son of Mzilikazi son of Matshobana

The owner of many books son of Matshobana
Where did you disappear to, Black Rod
That beats cattle and men?
You the big elephant of the forests,
Whereas other elephants leave a trail,
You do not leave even the smallest trail.
You the lion of the forests!
Whereas other lions can be tracked,
But this one of the Khumalo
Moved across without leaving a scent
All men are surprised
And even the ‘white dogs’ are surprised
About where you disappeared to, Khumalo
You who is as big as the earth you are big news.
You refused to be captured by foreigners
You chose to die a free man
Your grave shall be known by your ancestors only, you who is as big
as the earth!

Installation of King

The honest truth is that when I heard of the Intended installation of the crown Prince to the throne left by Lobengula the above Ndebele poem is what came to my head. I could see myself wearing the traditional regalia, dancing,  singing and of course with a gourd of umqombothi held safely like a new born baby in my arms.
Then I saw the letter from the Minister posted by one angry friend on social media which stated that the intended installation of King Lobengula cannot go on because it is unconstitutional.  The happiness faded, at first I felt anger, then I came to my senses again then asked myself, “was the decision by the Minister right?”

What is a King?

A king is a title given to a male monarch. In the African perspective or rather Zimbabwean perspective when we had Kings they were the executive, legislature and Judiciary. This means they made laws, enforced them and were also the Chief Judges. The historic Kings had more power than those vested in the current President. However the old system was put to end by the white man when they colonised Zimbabwe. Kings such as Lobengula were forcefully stripped off their powers and the Colonial System was put in place. Chiefs, headmen, and Village heads remained but their powers were stripped to be just ceremonial.

What does the Constitution say?

Fast forward to the Present, The constitutional order we live in right now recognises Traditional leaders however they were not restored the same powers they had before Colonialism.

Section 280 (1) of the constitution states that; The institution, status and role of traditional leaders under customary law are recognised”
Section 280(2) goes on further to state that “a traditional leader is responsible for performing the cultural, customary and traditional functions of a Chief,
head person or village head, as the case may be, for his or her community.”

Section 281 states the Principles that govern Traditional Leaders, section 282 state the cultural and traditional functions of Traditional leaders. It also states that an Act of parliament shall confer other functions to traditional leaders. Section 283 provides for the appointment and removal of traditional leaders and that an Act of parliament will also govern such. The relevant act of parliament in this case is the Traditional Leaders Act. The traditional leaders Act provides for the roles and functions of a Chief, head person or village head the Act does not talk about “Kings”.

In our common law there is a principle which says expressio unius est exclusio alterius: it is a principle in statutory construction which means that when one or more things of a class are expressly mentioned others of the same class are excluded. This means that the Legislature intended to exclude Kings. The law provides for the functions, roles and Jurisdiction of Chiefs, Heardpersons and Village Heads but never Kings.

 

Can a King be installed without the provisions?

Some have argued that this is an expression of culture in terms of section 63 of the Constitution and the installation must be allowed.

In the current constitutional order, which also includes traditional leadership, power is exercised within the confines of the law. This means that just like other traditional leaders the law must provide for the functions, powers and jurisdiction of the King. This way people will know the extend and limitations of the powers and or rights of Kings.

The government cannot allow a position of authority to exist without defining the extend and limits of that leadership position. If such a scenario would happen it may mean that what is being restored is the whole rights and powers that were vested in King Lobengula when he was deposed. This position cannot be allowed because the kind of powers and jurisdiction Lobengula had does not exist anymore.

Where does the remedy lie?

In as much as we want a King it is not possible to install a King in the current legal setup therefore the remedy lies with the Legislature.
The Constitution and the Traditional Leaders Act has to be Amended to allow or recognise Kings in the Traditional leaders hierarchy. Then we can install a King, drink African beer and sing and dance into the night celebrating our culture.

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