By Tinatswe Mhaka
Chief Felix Nhlanhlayamangwane Khayisa Ndiweni (54) has been ruling the Matabeleland South Area of Ntabazinduna for the last five (5) years after succeeding his now late father Chief Khayisa Ndiweni in 2014.
Zimbabwe still maintains some semblance of monarchical rule by positioning Chiefs as leaders of rural communities and ‘Traditional leaders remain the most accessible and immediate form of local governance in rural areas.’ Part of their duty according to the Constitution and the Traditional Leaders Act bestows upon them the power to preside over specific customary law disputes in an attempt to preserve ‘cultural values’.
In July 2017, a marital dispute involving allegations of adultery was reported to Chief Ndiweni’s Court, after a man; one Fetti Mbele allegedly caught his wife Nonkangelo Mpengesi being intimate with another villager. After having weighed the evidence presented before his Court, he ruled that the woman be banished from his village and stated that ‘prostitution’ was intolerable in his village.
The couple later on internally resolved their dispute and decided to continue living together as husband and wife. The Chief demanded that the couple complies with his ruling and when they ignored his command, he ordered that there be enforcement of the judgment.
He directed 23 men, who comprise his ‘Court assistants’ to remove the family garden and kraal fence. It was reported that on the 26th of July 2017, the couple met Kimpton Sibanda, a village head along with other people at their homestead as they had been in Bulawayo while the directive was being carried out. They were in the midst of vandalising their property.
The matter was reported to the police and was only resolved two years later on the 15th of August 2019 by the presiding Magistrate Gladmore Mushowe at Tredgold Magistrates Court in Bulawayo. He along with his 23 henchmen were found guilty of contravening Section 140 of the Criminal Code and Reform Act for malicious damage to property and given an 18-month effective sentence while the latter was given 525 hours of community services at local schools and hospitals.
He has since appealed against both the conviction and sentence and alternatively, requested that if the High Court is to uphold his conviction; the sentence be substituted with a fine of ZWL $20 each. On the 28th of August 2019, the High Court upheld his bail application and he is currently out of custody.
There has been much emphasis in the documents filed by his legal team, on the ZWL $300 value of the property destroyed. In his defence, he alleged that this is a political attack from a Zanu PF politician, Obert Gutu, who is said to be ‘fixing’ him after the former sued him for allegedly stealing 200 of his father’s cattle. Chief Ndiweni adds that the reports made against him by the couple were influenced by the same Obert Gutu.
Social media was flooded with calls for justice and threads of disapproval, from MDC lawyers, activists, members that make up various committees and so forth. It’s a tragedy to say the least, that weeks later, of all the leader’s voices, not one has spoken out for Nonkangelo Mpengesi and her family. Her name has been lost in the messiness of party politics and her experience erased. So erased in fact, it has not been interrogated that a chief can slut-shame and ostracize one woman so much it manifests into stripping her of her home.
There are institutional powers at play that have made it palatable for women to face imminent consequences for this most men can never be questioned about, and that is where the patriarchy starts. That is what must be remedied: a legal system that sits silently while people exercise social, legal and political power that perpetuates the harming of women.
The Chief never should have been in a position to make that decision. Women’s erasure is at an all-time high in Zimbabwe. Women are assaulted by soldiers, deemed unfit for politics because of their sexual exploits, harassed in the workplace and now subjected to misogynistic rule.
After the fact, it is very difficult to have a conversation about justice because it has been argued over and over again that leaders acting in their official capacity are protected from being criminally liable. This reasoning is suggested to be dictated by the fact that magistrates and judges, even where they have erred, cannot possibly be prosecuted.
Chapter 15 of the Constitution, The Traditional Leaders Act and Customary Law and Local Courts Act give Chiefs the powers crucial in a democratic society. They must uphold the values of their people and preside over matters in their community. But to say this power is absolute is questionable and that is confirmed through a generous interpretation of section 281 of the Constitution.
Since the chiefs are the guardians of customary law, it is to be expected that in the event that their conduct violates human rights, they will be held liable and accountable for that pursuant to the rule of law principle which is to the effect that no one is above the law.
Section 7 of the Traditional Leaders Act is also enlightening because it outlines Disciplinary procedure where chief commits offence or misconduct, reasoning which easily argues the role of chiefs can and maybe scrutinized where seemingly appropriate. Subsection (5) of the same states that:
The imposition of a penalty in terms of subsection (5) shall not absolve the chief or former chief concerned from liability to compensate persons who suffered loss or injury as a result of the offence or misconduct of which he has been found guilty, or to restore or repair any public property which he may have taken, damaged or destroyed.
So much room has been left for the remedying of harmful verdicts by traditional leaders. Whether or not the Chief is eventually jailed is now a matter of party politics, even more so now that allegiances have been made. That is the reality on the ground.
But the other side of the story must be told. There is no sense of urgency of substantive and inclusive justice for all without it. There is a danger in leaders that care very little for women and this is one such instance.