LUSAKA High Court judge Mwila Chitabo has confirmed the order staying his judgment nullifying the selection and installation of Julius Muyinda as chief Chibwika of the Lunda speaking people of Mwinilunga pending hearing and determination of Muyinda’s appeal to the Court of Appeal.
Judge Chitabo in his ruling directed that due to the intricacies of custom and tradition which the case solely rests on, it would not be unusual for a superior court to hold a different view from that of the trial court.
“It will be in the interest of justice to grant the application to stay the execution of the judgment of this court pending determination of the appeal. I agree that in the present case the respondent’s desire is to ensure that a chief is selected before the rain season which is fast approaching,” he said.
Judge Chitabo said the selection of a chief pending the appeal would render it an academic exercise.
“I accordingly confirm my earlier order to stay the execution of the judgment of this court pending the determination of the appeal before the Court of Appeal,” judge Chitabo said.
On July 17, 2020, judge Chitabo nullified Muyinda’s installation as chief Chibwika for being against the custom of matrilineal succession and rotation practiced in Chibwika chiefdom.
Judge Chitabo had ordered that the matter be referred back to Lunda Kingdom for the selection and installation of chief Chibwika with the supervision of Senior Chief Kanongesha and all interested stakeholders and that all the eligible candidates be given an opportunity to fairly contest the position in line with the customs of the Chibwika chiefdom.
This was in a matter where Muyinda had sued Matthews Sweta (Senior Chief Kanongesha), Ackson Kasapatu, Phinas Mutembu and Obbie Ntenda seeking an order that he was the right person selected and installed as chief Chibwika.
Muyinda, who cited the Attorney General in the matter, sought an order that his installation was validly done as the three royal families (Mushidi, Kalwizhi and Wachikeka-Lunda by tribe) properly selected him.
He wanted an order compelling the State to recognise him as chief Chibwika and that his installation be gazetted as required by law.
Muyinda was seeking an order of interim injunction restraining Senior Chief Kanongesha, his agents or servants whatsoever from interfering with his duties as chief Chibwika until final determination of the matter or until further order of the court.
Muyinda in his statement of claim said that he was a member of the Lunda Royal family who was appointed as a caretaker (Mwamba Ilunga) after his father, chief Chibwika, passed away in 2014.
He explained that on May 23, 2015, the three royal families – Mushidi, Kalwizhi and Wachikeka – met to prepare for the selection the substitutive chief Chibwika and he was selected and installed as such.
Muyinda said that on June 30, 2015, Senior Chief Kanongesha called a meeting of selected village headmen for purposes of re-selecting another chief Chibwika and it was resolved that Muyinda was duly selected and installed as chief Chibwika IV-Kutona.
He stated that in March 2017, senior chief Kanongesha wrote a letter alleging that since the demise of chief Chibwika in 2014 , the throne had remained vacant and that since his instillation, the State had not gazetted his installation as requiredby law.
But in their defence, the defendants denied allegations that the selection and installation of Muyinda was in violation of the Lunda tradition.
They said Muyinda was not eligible to be chief Chibwika because the Lunda tradition had strict matrilineal system and only those from the mother’s side were eligible to become chief.
The defendants sought an order that Muyinda being the son of chief Chibwika does not qualify to ascend to the throne of chief Chibwika as it offended the Lunda tradition.
They further sought an order that the matter be referred back to the Lunda Kingdom for the selection of and installation process.
But in a judgment dated July 17, 2020, judge Chitabo said there was no evidence on record to show that the relevant stakeholders were present during the selection of Muyinda as Mwamba Illunga nor were they consulted.
He said that Muyinda could not take over from his father as the system of rotation that was not followed (matrilineal system) meant that a son could not succeed his father and as such a system of rotation was employed in the succession to the throne.
Justice Chitabo said that he was satisfied that the plaintiff was not validly elected and installed as chief Chibwika because the system of rotation was not followed and that Muyinda was the biological son and could not succeed his father according to their custom.
He found that the defendants’ counterclaim succeeded.
“I accordingly discharge my earlier injunction granted in favour of the plaintiff on May 3, 2017.” said judge Chitabo.