The children of the late President Robert Mugabe can temporarily breathe a sigh of relief after the high court ruled to allow them to become parties in a controversial case brought by traditional leaders intent on exhuming Zimbabwe’s first post-independence leader.
In 2021, Chief Zvimba alongside other traditional chiefs petitioned the courts to have President Mugabe exhumed from his grave located at his ancestral home in Zvimba.
The traditional leaders want the former President reburied at the National Heroes Acre, but the family of Mugabe has continued to resist this move.
Before the high court ruled in favour of the former President’s children, the lower magistrate’s court had ruled in favour of the traditional leaders
Initially, the lower court had ruled in favour of the traditional leaders and fined the late Mugabe’s wife Grace, for breaking burial rites and defaulting.
Following the lower court’s ruling, Chief Zvimba seized heifers and a goat for cleansing of the country. But this did not go down well with Mugabe’s children namely Bona Mutsahuni, Tinotenda and Bellarmine who were unhappy with the ruling and as such appealed the magistrate’s ruling to be a party to the petition seeking to exhume the remains of their father.
However, a Chinhoyi magistrate, Ruth Moyo also ruled that Mugabe’s children had no right to appeal against a judgment handed by the traditional court against their mother, Grace.
Determined, Mugabe’s children appealed the ruling in the high court. The high court has now ruled in their favour.
Part of the judgment by Justices Amy Tsanga and Fatima Maxwell read: “In the context of customary law, the court finds no absurdity in allowing any person aggrieved by a decision of a community court to appeal against it, even though the aggrieved person was not a party in proceedings before the community court,” the judges ruled. The court below erred in restricting the right of appeal to persons who were parties in proceedings before the community court. Based on the above, the first and second grounds of appeal succeed.
“The appeal be and is hereby allowed with costs. The judgment of the court is set aside and is substituted as follows, the first preliminary point be and is hereby dismissed”.
The judges have since referred the matter back to Chinhoyi Magistrates Court for the continuation of the hearing.
They also determined that according to the dictates of the customary law, there was room to allow aggrieved parties to access the court when the need arose.
“As courts, it is therefore important that we do not fall into the dangerous trap of downplaying these very positive procedural customary aspects by thrusting formalistic interpretations upon them. The court below erred in restricting the right of appeal to persons who were parties in proceedings before the community court,” the court ruled.
Bona and her siblings have been arguing that they were the only ones who had the authority over their father’s grave, and sternly warned that anyone who would tamper with it would be committing a criminal offence as outlined in the Burial Act.
Through their lawyer, Tawanda Zhuwarara, Mugabe’s children insisted that the lower court must first make a determination on whether the traditional leader who ordered the exhumation and reburial had the right to do so.