The Zimbabwean law came from a long way to be what it is today. The long road which led to the current law had milestones of changing times, governance, wars which fought and exploration among others. This writing is aimed at outlining the historical development of blended Zimbabwe’s current law by chronologically tracing all the developments from its origins up to post colonial era. The birth of Zimbabwean law can be traced from the fall of Roman in AD 476. The decline of Roman Empire did not bring the existence of Roman law to an end as indicated by Christie (1998).
During those middle ages, the Roman law existed because every person was judged according to the laws of his or her own tribe or country which made the former Roman citizens to be judged according to the Roman Law. The Roman Law was regarded as the main law in Europe, but the Dutch in Netherlands did not receive it completely. The independence of Dutch people from Rome made them preserve their customs and privileges. The law that came out showed much Dutch influence in certain areas like families. The Roman law was received in Netherlands in the 15th and 16th centuries and became mixed with customary law to form Roman-Dutch Law.
Grotius (1583-1645) was described as the father of roman Dutch law because of his first attempt to write a systematic roman Dutch Law. The step which brought the Roman Dutch law to Southern part of Africa was when Jan Van Riebeek brought the roman Dutch Law to Cape in 1652 as highlighted by Christie (1998). Riebeek occupied the Cape as one of the loyal agents of the Netherlands companies from the Province of Holland. He took the law of Holland with him which granted the company as to be a separate entity from its members.
The British took advantage of Dutch alliance the Netherlands and took over control of the cape in 1814. The British did not replace the working legal system in the cape but they established a system of courts on the English pattern to replace existing institutions. For example Orphan Chamber was replaced by the Master of Supreme Court. This led to the direct and indirect influence of the English law in the jury system. Another example of penetration of English law was the code of criminal procedure which was introduced in 1896.
The arrival of the pioneer column formed by Cecil John Rhodes in Mashonaland in 1890 was the beginning of Roman-Dutch fused with English Law in Zimbabwe which was then called Southern Rhodesia as stated by Havenga (2007). The proclamation of the British High Commissioner to South Africa dated 10 June 1891stated that the law of Cape on that day should be the law of southern Rhodesia. Rhodes obtained a charter from Queen Victoria for the British South Africa Company to rule Southern Rhodesia from 1890 to 1923. Rhodes had a dream of establishing British colonies from Cape to the mouth of Nile.
Rhodes succeeded in persuading the British government to secure Bechuanaland now Botswana and won the concession from Lobengula which made him aim further to the North. After Lobengula grants Rhodes mining rights in his territory, the British government declared the land between Zambezi and Limpopo as the British Protectorate in 1891. Given the deceitful and fraudulent means of securing the territory used by Rhodes and his company, tension began to mount between Lobengula and the company. A war broke out in 1893 in which the natives, poorly armed, were defeated.
This war was to be known as the “Anglo-Matebeleland war of dispossession”. This was the beginning of colonialism in Zimbabwe. The law in force before British occupation was the traditional or customary law of the tribes living in Zimbabwe at that time. The traditional laws were written and were not uniform throughout the country. Chiefs and their kraal heads administered the law with the chiefs being the judges who had the final say in the settlement of disputes. Chiefs have the power to issue royal decrees and these would become law.
Traditional laws were enforced by the king or chiefs warriors, or indunas. A company known as the British South Africa Company (BSAC) was given a Charter on 29 October 1889 by the British government. In itself the charter was the first legal document which outlined how Rhodesia was to be governed and administered. It also defined legislative and judicial issues. For example, article 10 of the Charter stated that the company shall to the best of its ability preserve peace and order in such manners as it shall consider necessary.
It is thus patently clear from the provisions of Article 10, that the company had now been vested with legislative, administrative and judicial powers and this was the beginning of formal law and its imposition upon a sovereign African Natives. Harsh laws were made by the Rhodesian government to oppress the black majority so that they became subjects of the colonialists. The early administrators like Star Jameson and Earl Grey administered Rhodesia using the Cape Model. More land was taken from Natives. A Hut Tax was imposed in 1896 and a Pass Law in 1902.
These measures were in place to force and direct natives to be labourers of the colonialists in farm and mines established. In 1894, a High court was set up, from which appeals would proceed to the Cape Supreme Court. It is thus common knowledge that the laws administered in the colony of Rhodesia were of foreign origin, mainly British (English Law) and Roman – Dutch Law. A landmark occurrence took place in on 20 October 1898. The South Rhodesia Order in Council was enacted. It provided for the appointment of an Administrator and a Legislative Council.
The Legislative Council had the power to enact laws for the “peace” order and good government of Southern Rhodesia vested in the British Crown and not in the Company. All cases tried in the courts then bore the name of the Gown or the Rex. In October 1923, Southern Rhodesia was formally transformed into a British Colony by the Southern Rhodesia (Annexation) Order in Council of 30 July 1923. This influenced the law to be administered in that it led to the adoption of English legal principles in certain instances.
A Constitution then came into being in 1923. Land Apportionment Act of 1930 removed rights of the Africans to purchase land or occupy outside specific African areas. It enforced a territorial segregation between backs and whites. The Constitution established a legislative assembly consisting of thirty elected representatives of electoral districts. It also provided for the election of a Speaker and a Deputy speaker of the Assembly. Such a development marked the commencement of formal parliament a model which Zimbabwe still follows today.
The 1923 Constitution was later revised in 1961; the 1961 constitution conferred more powers of self government on the territory of Southern Rhodesia, because the territory was still a British Protectorate. It also took into account the views of the African nationalists who sought to advance the political rights and interests of Africans. On the 11th of November 1965, Ian Smith declared a Unilateral Declaration of Independence (UDI), which sought to free the territory from the direct British control and dominion and establish a system of total self-governance.
The Queen dismissed Ian Smith and his Ministers for insubordination and declared the declaration illegal, and urged all citizens, the Judiciary, the armed services the police and the public service to carry on with their normal tasks. In 1969 a new Republican Constitution was adopted. It introduced a Non-Executive Presidency, a bicameral legislature, consisting of a house of Assembly and a Senate. The Senate was the upper house, constituting of twenty-three Senators – ten were Europeans, a further ten were African Chiefs and the final three were persons appointed by the President.
The Senate was abolished later in independent Zimbabwe in 1987 and later recently re-introduced in September 2005. This serves to highlight how the law in Zimbabwe has been etched and shaped by the country’s Colonial history. Unlawful Organisations Act was formed as part of security legislation intended to make it impossible for African Nationalism to resurrect. Many grievances which mainly included harsh laws on land gave way for the armed liberation struggle against whites (Second Chimurenga) which started in…..
The Second Chimurenga led to the surrender Smith’s colonial regime and paved way for the Lancaster House Conference in 1979. Land issues were still the centre of debate at the conference. It was later agreed that the then new constitution should permit the government expropriate farmland if it was not being properly used as indicated by Nkomo (1984). The Lancaster House Constitution of 1979 is still the Supreme Law of Zimbabwe today, twenty six years after independence, itself being the parent Act to numerous colonial era Legislation. It is thus clear that Zimbabwe’s laws are the pre-historic remnants of the colonial era.
The current constitution of Zimbabwe is the result of a settlement agreement done at Lancaster House in England in the year 1979. It sets out the State Structure, the Bill of Rights the Judiciary the Legislature and other administrative organs such as the Public Service Commission. Currently there is an ongoing struggle being waged by Zimbabwean citizens who are agitating and pressing for a new constitution, after series of nineteen amendments which were done to rectify the pre-historic remnants of the colonial era The historical path of Zimbabwean Law was a long one.
It started from the Roman Law, Roman-Dutch Law, Roman-Dutch and English and finally blended with the Zimbabwean traditional law commonly known as customary law. These phases of developments in Zimbabwean law were greatly influenced by European colonialism in Africa. References Christie, R. H. (1998) Business Law in Zimbabwe, Cape Town: Juta and Co, Ltd. Nkomo, J. (1984) The Story of my Life, London: The Chaucer Press.