By Princess Eugene Majuru
One of the least discussed but most important realities of Zimbabwe’s legal system is that it operates on a dual structure of law. On one hand is the Constitution and formal statutory law. On the other is customary law—rooted in tradition, community practice, and indigenous systems of governance. Both exist within the same national space, but they do not always operate on equal footing.
The 2013 Constitution formally recognises customary law, but it also places it within a hierarchy dominated by constitutional authority. This creates a system where two legal worlds coexist: one written and institutional, the other lived and customary.
- The Constitutional Recognition of Customary Law
The legal foundation for customary law is found in Section 332 of the Constitution, which defines it as:
“the custom, practice and usage of the people of Zimbabwe… which, by long usage, has obtained the force of law in the area concerned.”
This is important because it confirms that customary law is not informal or unofficial—it is legally recognised. It is part of Zimbabwe’s formal legal system.
The Constitution further supports cultural and traditional systems through Section 63(1), which states:
“Every person has the right to participate in the cultural life of their choice.”
And Section 282(1)(c), which provides that:
“Traditional leaders must… promote and uphold cultural values of their communities.”
What this means in principle
Customary law is recognised as real law
Cultural systems are protected
Traditional leadership has a constitutional role
On paper, this suggests legal pluralism—multiple systems of law operating together.
- The Constitutional Hierarchy: Who Has Final Authority?
However, the Constitution also establishes a clear hierarchy of legal authority. Section 2(1) provides:
“This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid.”
This is the key tension.
It means:
Customary law is valid only if it does not conflict with the Constitution
The Constitution is the final authority in all disputes
Courts interpret whether customs are acceptable or not
So while customary law exists, it does so under constitutional supervision.
- How Customary Law Works in Practice
Customary law is not just theoretical—it governs everyday life in many communities.
It often applies in areas such as:
Marriage and family relations
Inheritance and succession
Land use in communal areas
Dispute resolution through traditional leadership
In many rural communities, disputes are first taken to:
village heads
headmen
chiefs
before ever reaching formal courts.
What this shows
Customary law is not secondary in practice—it is often the first system of governance people actually use.
- The Court System: When Two Laws Meet
When disputes move into formal courts, customary law must be interpreted through constitutional and statutory standards.
Section 46(1)(e) provides that courts must:
“take into account international law and all treaties and conventions to which Zimbabwe is a party.”
This means courts often evaluate customary practices against:
constitutional rights
international human rights standards
formal legal principles
The result
A customary practice may:
be accepted if it aligns with the Constitution
be modified if partially incompatible
be rejected if it violates constitutional rights
This creates a filtering system, where customary law survives only in constitutional compatibility.
- The Structural Tension: Two Systems, One State
Zimbabwe therefore operates two parallel systems:
(A) Formal constitutional system
Courts
Statutes
Rights-based reasoning
Written law dominance
(B) Customary system
Oral tradition
Community authority
Elders and traditional leaders
Relational justice systems
The tension is not that one exists and the other does not—but that:
one is sovereign, and the other is subordinate
- The Deeper Issue: Different Ideas of Justice
At the heart of this dual system is not just law, but philosophy.
Constitutional law tends to prioritise:
individual rights
uniform standards
written evidence
formal procedure
Customary systems tend to prioritise:
communal harmony
restoration over punishment
relational balance
oral testimony and lived context
These are not simply legal differences—they are different ways of understanding justice itself.
- What This Means for Decolonisation
From a decolonial perspective, the question is not whether customary law should exist—it already does. The real question is:
Is customary law fully empowered as a living legal system, or is it only recognised when it fits within constitutional boundaries?
At present, the answer is complex.
It is recognised
It is practised
But it is also filtered, limited, and subordinated
Conclusion: A Legal System in Dual Motion
Zimbabwe’s legal order is not singular—it is layered.
The Constitution provides supremacy, structure, and rights
Customary law provides lived governance, cultural continuity, and community justice
But they do not exist on equal constitutional footing.
The result is a dual legal system in constant negotiation:
between written law and oral tradition
between constitutional authority and community legitimacy
between modern statehood and indigenous governance systems
Understanding this duality is essential to understanding Zimbabwe itself—not just as a constitutional state, but as a society where law is still negotiating between two histories, two philosophies, and two systems of justice.
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