BREAKING: Nabiwa Imikendu and others lose their case against the Litunga with costs

04 January 2021
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The Zambian High Court has ruled to dismiss Nabiwa Imikendu and others in their litigation against the Litunga of Barotseland with costs.

A full High Court bench of judges comprising Judges G.C Chawatama, Charles Zulu and W.G.K Muma on Wednesday, 30th December 2020 unanimously ruled in favour of the defendant, His Majesty Imwiko II, with costs awarded.

The plaintiffs namely Nabiwa Imikendu, Litia Charles Mutemwa, Mukubesa Ilukena and Mumbisho Liswaniso will have to pay all costs of the litigation including those incurred by the Defendant.

This is in a case where on February 3, 2017, the Plaintiffs took out an originating notice of motion in the High Court at the District Registry at Mongu.

And in their affidavit in support of the originating notice of motion, the Plaintiffs, who described themselves as Zambian Nationals and traditional loyalists with vested interests aimed at ensuring that Lozi tradition and custom is upheld, promoted and sustained for the cultural heritage, wanted the court to order that the defendant, Edwin Lubosi Imwiko, who they sued in his capacity as Litunga of the Western Province of Zambia, abdicates for what they termed as gross incompetence and abuse of authority.

In their prayer, the Plaintiffs stated, "WHEREFORE acting for, and on behalf of more than 90% of the Lozi People having an equitable interest of this matter at heart, DO HEREBY pray this Honourable Court to find in their favour and DECLARE that the said Edwin Lubosi Imwiko voluntarily abdicates failing which the Applicants together with the people of Barotseland be at Liberty to invoke options of customary nature open to Lozi tradition to remove the said Edwin Lubosi Imwiko on grounds of gross incompetence and abuse of authority of office.”

However, the plaintiffs could not provide any evidence of the 90% of the Lozi people who had vested interest in the matter by either producing them as witnesses or by producing their addresses, postal or electronic.

So, because of this and other technical irregularities, the court dismissed their matter.

The court, however, further stated that even assuming that the remedy or remedies sought by the Plaintiffs are to be gathered from the statement of claim; as to whether the Plaintiffs are prima facie entitled to an order of the Court that the Defendant should be ordered to abdicate as the Litunga, or that the Plaintiffs or the People of Western Province be ordered to dethrone the Defendant, the Plaintiffs’ claim did not whatsoever constitute a reasonable cause of action under the circumstances of this case.

The High Court concluded that such a claim had no reasonable or real prospect of success because the Court did not have such jurisdiction, as it was not the duty of the Court to order that a Chief or any person holding the office of chieftaincy be removed from his/ her office based on an action taken out by his subjects on allegations of incompetence, disregard of traditions and customs, or abuse of the chiefly office.

The court added that every chieftaincy is established according to its culture, customs and traditions. Therefore, the process of impeachment or dethroning resides in their respective traditional authorities, such as the highest Kuta in the present case, in accordance with established traditions and customs.

In a similar manner, the Court was compelled to incidentally add that, it cannot decide that a chief be installed in the place of another chief as it is not the duty of the Court to choose or impose a chief on a community.

However, where customs and traditions have been disregarded in the selection process, the Court can be moved and is vested with the power to declare the selection a nullity.

This court ruling has been received with mixed feelings among the Barotzis, but it certainly should put to rest the highly emotive Imikendu vs Litunga Imwiko II litigation.

As Induna Imbwae (Head of Kingmakers) at the time, Nabiwa Imikendu was responsible for carrying out the final enthronement rites on Edwin Lubosi Imwiko to ascend the throne as Litunga (King) Imwiko II in October of 2000.

However, the two fell out of favour when in 2007 Imwiko II fired Imikendu from his role as Imbwae, with the latter refusing to vacate the seat claiming that his role as Imbwae was hereditary and he could only vacate it upon death.

In March of 2017, the Barotse Royal Establishment (BRE) appointed Mukenani Muziba as Induna Imbwae replacing Nabiwa Imikendu who was embattled since his dismissal in 2007.

In replacing Imikendu, the BRE clarified that even Induna Imbwae can be replaced, dead or alive if he grossly misconducts himself and that they have done it (replaced him) in order to ensure the tradition continues.

Mukenani Muziba, like Nabiwa Imikendu, hails from Ikatulwamwa Village who are the holders of the title of Induna Imbwae.

Others who work together with Induna Imbwae of Ikatulwamwa and Induna Soondo of Mbanikelako to preside and carryout the enthronement rituals of the Litunga of Barotseland are Induna Akashambatwa of Imwambo and Induna Kaanda of Makono.

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