Woman denied chieftainship because she experiences monthly menstrual periods

THE eldest daughter of the late Chief Mvuthu Mlotshwa of Hwange District, Miss Silibaziso Mlotshwa, has sought to take her fight to succeed her father to the Constitutional Court after she was blocked from taking over the throne because she experiences monthly menstrual periods, among other reasons.

Miss Mlotshwa (23), through her lawyer Mr Thulani Ndlovu of Sansole and Senda Legal Practitioners, last week applied for leave to have direct access to the Constitutional Court on the matter, in terms of Section 167(5) of the Constitution.

Her application for leave comes after the High Court last year referred the matter to President Mugabe with Miss Mlotshwa approaching the Supreme Court where she was advised that the matter was a constitutional one and can only be dealt with by the Constitutional Court.

Mr Sanders Mlotshwa, Miss Mlotshwa's uncle who is also allegedly eyeing the throne, the District Administrator for Hwange, Minister of Rural Development, Promotion of Culture and Heritage, Abednico Ncube and President Mugabe are cited as first, second, third and fourth respondents respectively in the application.

Minutes attached to the application, of a 2015 meeting, that was chaired by the then acting DA for Hwange Mr Tapera Mugoriya, show that the 25 Mlotshwa clansmen in attendance agreed that a woman could not be a traditional leaders because women experience monthly menstrual periods.

"It was also observed that women among the Nguni people cannot be traditional leaders. The reason was that women have monthly menstrual periods and during this period they are not supposed to do any public or domestic chores. Therefore women of the Mlotshwa family which belongs to the Nguni tribe cannot be appointed as traditional leaders," the minutes read in part.

Miss Mlotshwa, through her legal team is seeking to challenge the constitutionality of the Nguni customary succession principle which excludes women from appointment as chiefs.

She argues that such customary principle is inconsistent with the Constitution of Zimbabwe.

"It is my further view that the Nguni customary succession principle in as far as it excludes women from chieftainship violates my rights as protected in the Declaration of Rights being my right to equality and non-discrimination (Section 56), right to dignity (Section 51), right to language and culture (Section 63) and rights of women (Section 80) of the Constitution," she stated.

Miss Mlotshwa feels the Constitutional Court is the best placed forum to determine the matter.

"The Constitution and the Rules of the Constitutional Court grants this court powers to determine issues involving the Declaration of Rights hence this Court is the correct forum to determine this matter," she said in her sworn affidavit.

The Mvuthu throne became vacant after the death of Chief Mvuthu Mlotshwa in 2014 and his brother Mr Sanders Mlotshwa was appointed chief.

However, Miss Mlotshwa contested her uncle's appointment contending that she was supposed takeover from her late father as she was the eldest of her father's three daughters. The Nguni culture follows a lineal system of succession where the eldest child of the chief is heir to the throne. Miss Mlotshwa further argued that in KwaZulu-Natal where the Ngunis originate, there were now many female chiefs who have undertaken the tasks equally competently.

Last year Bulawayo High Court judge Justice Nicholas Mathonsi, citing section 283 of the Constitution ruled that the matter was beyond the court's jurisdiction. Justice Mathonsi, however, conceded that Miss Mlotshwa's constitutional rights were breached when she was overlooked in the nomination process on the basis of her gender.

In making his ruling the High Court Judge said: "I have no doubt that the plaintiff has a good case to make about how and indeed why she was overlooked on gender bias in breach of her constitutional right. However, the debatement of those issues must take place before the President in terms of current law."