HARARE — The Constitutional Court has, by consent, joined the minister of justice, legal and parliamentary affairs and the minister of local government and public works to a constitutional challenge brought by a Bulilima chief and two village heads facing criminal prosecution over their allocation of communal land.

Chief Mphini of the Ndiweni area in Bulilima District, real name Jabulani Mphini, and two village heads under his authority, Madhoja Mafa and Howard Nkomo, are charged with criminal abuse of duty as public officers under section 174 of the Criminal Law (Codification and Reform) Act, read with the Communal Lands Act.

The charges arise from the allocation of 26 residential and agricultural stands in Ward 21 between 2021 and 2024 without a resolution or authority from Bulilima Rural District Council. Bulilima RDC uncovered the allocations in July 2025.

The three approached the Plumtree Magistrates Court to have three constitutional questions arising from their prosecution referred to the Constitutional Court. They argue that section 174 of the Criminal Law Code is unconstitutionally overbroad; that section 174(2) unlawfully reverses the onus of proof onto an accused person; and that section 8 of the Communal Lands Act, which vests authority over the allocation of communal land in rural district councils, is inconsistent with section 282 of the constitution, which they say gives traditional leaders authority over communal land in their jurisdictions.

Provincial magistrate B. Sibanda, ruling on June 12, found that the National Prosecuting Authority and the defence agreed on the underlying facts — including that the three are traditional leaders who allocated the land without council resolution — and that what remained in dispute was purely a question of law. The magistrate held the application was not frivolous or vexatious, referred all three questions to the Constitutional Court, and stayed the criminal prosecution pending the outcome.

The NPA opposes the referral. In heads of argument filed in July, it argues that the applicants have not shown that the impugned provisions actually limit the rights they rely on, and asks the Constitutional Court to dismiss all three questions and remit the matter to Plumtree for the criminal trial to proceed.

The applicants, in their own heads of argument, want section 174 declared unconstitutional — though with the declaration of invalidity suspended for 180 days to give parliament time to amend it — section 8 of the Communal Lands Act struck down immediately, and the criminal charges against them quashed.

Wednesday’s consent order does not resolve any of the three constitutional questions. It brings the two ministers into the case as second and third respondents, with the registrar to furnish them the record within 10 days, the ministers given a further 10 days to file heads of argument, and the applicants 10 days after that to respond, before the registrar sets the matter down for hearing. The case was postponed indefinitely, with no order as to costs.

Advocate Method Ndlovu, the lawyer for the applicants, said the Constitutional Court had “taken quite a flexible approach” in joining the two ministers, who administer the criminal law code and the Communal Lands Act, to allow the matter “to be fully ventilated.”

“We are essentially asking the Constitutional Court to uphold what the constitution says, that is, it is the role of traditional leaders to administer and parcel out land in their areas of jurisdiction,” Ndlovu said.