BY TAPIWA MAFUNDU

Historical Overview[3]
The colonial and legal history of Zimbabwe, although unique and independent, is interconnected and
interrelated to the history of South Africa’s legal developments and colonial developments.
 
Prior to the arrival of the first British settlers in 1890, the area now known as Zimbabwe was occupied
exclusively by the Shona and Ndebele peoples whose chiefs exercised Sovereign powers over them.   The
Shona people occupied the northern part of the country known as Mashonaland, while the Ndebele people
occupied the southern part known as Matebeleland. Lobengula, a Ndebele chief, was the most powerful
chief at the time of British occupation.  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.
 
29 October 1889 marked the commencement of formal colonial takeover for Zimbabwe.  A company
known as the British South Africa Company (BSAC) was given a Charter on 29 October 1889 by the
British government.  The company was the brainchild of Cecil John Rhodes, a British businessman and
politician.  The colony of Zimbabwe was renamed Rhodesia, after Cecil Rhodes.  The charter was a semi-
permanent instrument of government until such time as nay settlers could take over the administration of
the colony.  According to the charter, the British South Africa Company was to administer the colony for
at least twenty-five years before the contract was tampered with.
 
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.  Article 10 of the Charter decreed thus:
 
“…the company shall to the best of its ability preserve peace and order in such manners as it shall
consider necessary and may with that object make ordinances to be approved by [the British] Secretary
of State, mat establish and maintain a force of Police”.
 
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.
 
On the 12th of September 1890, acting on the strength of the Charter, a group of British Settlers arrived at
what is now Harare in Mashonaland and hoisted the Union Jack (British flag), a sign of effective
occupation.  The place was then named Fort Salisbury.  A town was created and a Police Force set up.  The
occupation was secured through dishonest and fraudulent means, given that the black natives were
oppressed to British occupation of their territory.  On 9 May 1891, the British government brought into
being the “South Africa British Protectorate. The idea was to secure the territory from occupation by the
South African Republic. However, the company remained in control of the territory.
 
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”.
 
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 TAPIWA MAFUNDU

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. 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.
 
The House of Assembly of 1969 consisted of sixty-six members.  Fifty were Europeans, the other sixteen
were Africans.  This reservation of seats for Europeans who were the minority was to say the least
oppressive and it gave rise to the Revolutionary war for independence.
 
As a result of the continued Political impasse, numerous efforts were made to solve the political crisis.
Africans continued waging a war in demand for majority rule and total independence. In 1978 the Regime
partially relented and entered talks with African national parties. A new Constitution was agreed on (the
1979 Constitution Elections were held and the U.A.N.C[4] won - Bishop Abel Muzorewa became Prime
Minister).  Southern Rhodesia for that brief period came to be known as Zimbabwe Rhodesia.  Political
turmoil continued embattled and this gave rise to the Lancaster House Constitutional Conference [5] in
1979, which sought majority rule for Africans and a total grant of Independence to Africans.  Soon after
the Constitutional Conference, an election was held in 1980 in which Robert Mugabe’s ZANU PF won. On
18 April 1980 Prince Charles formally conferred independence upon Zimbabwe; the new constitution then
came into effect on the same day.
 
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.