Customary Law Ascertained Volume 1

Ndateelela Namwoonde, Manfred Hinz

Description

Customary Law Ascertained Volume 1 is the first of a three-volume series in which traditional authorities in Namibia present the customary laws of their communities. It contains the laws of the Owambo, Kavango, and Caprivi communities. Volume 2 contains the customary laws of the Bakgalagari, the Batswana ba Namibia and the Damara communities. Volume 3 contains the customary laws of the Nama, Ovaherero, Ovambanderu, and San communities. Recognised traditional authorities in Namibia are expected to ascertain the customary law applicable in their respective communities after consultation with the members of that community, and to note the most important aspect of such law in written form. This series is the result of that process. It has been facilitated by the Human Rights and Documentation Centre of the University of Namibia, through the former Dean of the Law Faculty, Professor Manfred Hinz.

Sujets

• Droit et juridique
• Law

Informations

• Publié par: University of Namibia Press
• Date de parution: 23 janvier 2024
• Nombre de lectures: 0
• EAN13: 9789991642956
• Langue: English
• Poids de l'ouvrage: 18 Mo

Extrait

CUSTOMARY LAW ASCERTAINED CUSTOMARY LAW ASCERTAINED VOLUME 1

The Customary Law of the Owambo, Kavango, and Caprivi Communities of Namibia

CUSTOMARYLAW ASCERTAINED

Volume 1

The Customary Law of the Owambo, Kavango and Caprivi Communities of Namibia

Edited by Manfred O. Hinz Assisted by Ndateelela Emilia Namwoonde

Customary Law Ascertained

Volume 1

The Customary Law of the Owambo, Kavango and Caprivi Communities

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Second-year law students in the University of Namibia’s Faculty of Law are obliged to do îeldwork in customary law. The photograph shows students collecting information on customary law in the Palace ofFumuErwin Mbambo Munika of theHambukushu Traditional Authority in 2008.Photograph: Manfred O.Hinz

Other photographs in the Helgard KM Patemann Authorities themselves.

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were taken by Ndateelela Emilia Namwoonde, Erwin Mbambo Munika), and Traditional

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The Customary Law of the Owambo, Kavango and Caprivi Communities of Namibia

Edited by Manfred O Hinz assisted by Ndateelela Emilia Namwoonde

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UNIVERSITY OF NAMIBIA PRESS Private Bag 13301 Windhoek Namibia www.unam.edu.na/unam-press [e-mail]

First published: 2010 by Namibia Scientific Society First reprint: 2022 by UNAM Press

© University of Namibia Press, Manfred O. Hinz and Council of Traditional Leaders of Namibia. All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission of the publisher.

The research for this publication, the consultations with the 17 communities whose customary law was ascertained, and the publication of the laws themselves were all generously funded by the Embassy of Finland.

The Ofîce for Development Cooperation of the Free Hanseatic City of Bremen is acknowledged with thanks for their continuous support to the Customary Law Unit of the Faculty of Law at the University of Namibia.

Vernacular language translators and editors: Ndateelela Emilia Namwoonde, Hilma Mbandeka, Taimi Nghikembua, Felistas Shikerete, Adolf Gabriel, Gloria Situmbeko, Marjory Mukwenda, Christian Thala Mukuve

Proofreading of the vernacular language texts: Tsenaye Linguistics CC English language editors: Steve Felton and Sandie Fitchat Proofreader for English texts: Sandie Fitchat

Cover photograph: Damian Maghambayi Cover design: Gretta Gaspar Interior design: Manfred O. Hinz and The Word Factory Layout: The Word Factory

Revised Orthography 2022: Owambo Aawambo Kavango Vakavango Caprivi Zambezi

Publisher’s Note: The Human Rights and Documentation Centre was integrated into the UNAM Library in 2022. ISBN 978-99916-42-94-9 Distribution (Namibia) Namibia Book Market: www.namibiabooks.com, email: [e-mail] (International) African Books Collective: www.africanbookscollective.com

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P reface

By the same stroke of the proverbial pen with which our Constitution was written, both customary law and common law became part of the greater body of laws constitutionally applied to Namibia upon its Independence. Article 66(1) of the Constitution declares that both customary and common law in force on the date of Independence shall remain valid to the extent to which they do not conict with the Constitution or any other statutory law. However, whereas the common law înds consistent and continued application in virtually every sphere of human endeavour throughout Namibia and is well entrenched in our jurisprudence, customary law is yet to înd proper application and its rightful place in regulating the conduct of Namibians, particularly those in traditional communities. There may well be multiple reasons for this disparity in application. Some may argue that it is because the customs of different traditional communities which later attained the status of law were unique to each of those communities, thus resulting in the development of many different sets of customary laws on the same subject matter applicable to the various communities indigenous to Namibia. Each set of customary laws, therefore, was of limited territorial or jurisdictional application. Others may blame the lack of adequately empowered and recognised judicial structures within those communities to which regular recourse may be had to resolve issues in accordance with customary law. There are those that contend that some of those laws are so antiquated that they have been abrogated by disuse and that they do not have any place or application in more progressive communities. Then there were also customary law provisions or practices which derogated from the principles and values entrenched in the Constitution and which, by reason of Article 66(1), were not subsumed in the body of law which became enforceable in Namibia after Independence and the attendant uncertainty of which provisions survived and which did not.

Whatever the other reasons may be, it is beyond doubt that one of the primary difîculties in the judicial application of customary law is – and always has been – the absence of accurate, comprehensive and authoritative written recordals thereof. The rule of law – one of the fundamental constitutional principles upon which Namibia is founded as a state – demands, amongst other things, that the law should be certain and be ascertainable in advance by the persons to whom it relates so as to be predictable and allow them to regulate their affairs in conformity therewith. Without books or other written instruments recording the customary laws applicable to the different traditional communities in Namibia, their tenets remain locked in the minds and pronouncements of those who claim to know. This constitutes a severe restriction on the accessibility of customary law provisions and, in certain instances, casts doubt on their certainty. Kaputuaza v Executive Committee of the Administration for the Hereros & Others 1984 (4) SA 295 and other cases on point inform us that different factions in the same community may hold differing views on what the customary law on a particular issue is. The differences may be the result of differing recollections about the laws orally passed on from one generation to another, but in some instances may also be constrained and

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Peter Shivute

intended to best serve the interests of a particular section or group in that community. Oral evidence of the customary law applicable to a particular issue aside, the principal written references currently available to courts are a few historical books and notes of missionaries, merchants and anthropologists who have made cursory and, sometimes, fragmented reference to its application in some traditional communities. If it is not redressed, this undesirable – if not impermissible – state of affairs is likely to impact detrimentally on the preservation, application and development of customary law. These concerns, I must add, are apparently also shared by the Legislature if one considers the provisions of section 3(1)(a) of the Traditional Authorities Act, 2000 (No. 25 of 2000). The section obliges traditional authorities to ascertain the customary law applicable in their respective communities after consultation with the members of that community and to assist in the codiîcation thereof. To that end, the Council of Traditional Leaders passed a resolution urging all traditional communities to embark on projects to that effect.

It is with these concerns and considerations in mind that the initiative taken by the Human Rights and Documentation Centre of the University of Namibia, the learned editor and his assistant to record and discuss the ascertained customary law of traditional communities in Namibia must be commended. Vital to the value and reliability of this work will be the accuracy of the English translation of the written restatement of customary law from the local languages. It is highly likely that the contents of this ground-breaking work will receive judicial scrutiny in future proceedings and that it will be referred to by courts at all levels in Namibia, including community courts as contemplated by the Community Courts Act, 2003 (No. 10 of 2003). In doing so, the courts will be mindful that, as is the case with common law, the customary law ascertained herein is of application only to the extent to which it does not conict with the Constitution or other statutory law. Moreover, court proceedings involving the application thereof will have to conform to the constitutional and other legal requirements of a fair hearing.

I am convinced that an accurate and reliable documentation of customary law will inform the public generally and traditional communities in particular; contribute to a meaningful discussion thereof and create a solid foundation for its development; assist the courts and traditional authorities in its application; and, in general, give effect to the constituent elements of the rule of law.

Peter Shivute Chief Justice

Windhoek, April 2010

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f oreword

The Namibian Customary Law Ascertainment Project and the Human Rights and Documentation Centre

1 Oliver C Ruppel

The Human Rights and Documentation Centre (HRDC)of the Faculty of Law of the University of Namibia serves the central mission of creating and cultivating a sustainable culture of human rights and democracy in Namibia. Focussing on this mission, the HRDC promotes the implementation of human rights by organising workshops, seminars, and 2 conferences and by reviewing the human rights situation in Namibia and the southern 3 African region.The HRDC is concerned with training government ofîcials in the skills of state reporting to international human rights organisations and providing advocacy. The training of law students, lawyers, judges, magistrates, Traditional Authorities and law enforcement ofîcers in human rights has always been on top of the HRDC’s agenda. Speciîc workshops for human rights have been organised and conducted by the HRDC 4 as well, e.g. for judges, Police and prison ofîcers, and Traditional Authorities.

Traditional Authorities live under customary law, which is the law according to which most of the Namibian population live. Customary law is a complex, dynamic system which has constantly evolved in response to a wide variety of internal needs and external inuences. It regulates marriage, divorce, inheritance, succession, and land tenure, amongst other things. Thus, customary law is a body of norms, customs and beliefs that is relevant for most Namibians. However, despite this relevance for the majority, customary law was marginalised and even ignored for some time under colonial rule. Nonetheless, all evidence alluding to the living reality of customary law shows that the law has developed ways and means of preserving its essence in spite of any impediment. Article 66(1) of the Constitution of the Republic of Namibia places customary law on the same footing as any other law of the country as far as its constitutionality is concerned. This means that customary law has to comply with and cannot derogate from the constitutional provisions, particularly Chapter 3, which contains fundamental human 1 Dr Oliver C Ruppel, LLM (Stellenbosch), is theformerof the Human Rights and Director Documentation Centre (HRDC) and a Senior Lecturer in Law at the Faculty of Law, University of Namibia (UNAM). He holds one of the 14 World Trade Organisation (WTO) Chairs worldwide. E-mail: [e-mail] or [e-mail]. 2 Cf. Ruppel, OC (Ed.). 2009.Children’s rights in Namibia. Windhoek: Macmillan Namibia; Ruppel, OC (Ed.). 2008.Women and custom in Namibia. Cultural practice versus gender equality?. Windhoek: Macmillan Namibia; Hinz, MO & OC Ruppel (Eds). 2008.Biodiversity and the ancestors: Challenges to customary and environmental law. Case studies from Namibia. Windhoek: Namibia Scientiîc Society. 3 Ruppel, OC. 2008. “The Human Rights and Documentation Centre at UNAM”. In Horn, N & A Bösl (Eds).Human rights and the rule of law in Namibia. Windhoek: Macmillan Namibia, pp 131–140. 4 (ibid.).

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5 rights and freedoms. In view of the aforementioned importance of customary law, the Embassy of Finland in Windhoek enabled the HRDC to engage in various projects on 6 customary law in Namibia.

Finland and Namibia have long-standing relations that began 135 years ago, when Finnish missionaries arrived in Namibia. One can still see the inuence of missionary work in Namibian society. As a partner country and good friend, Finland helped Namibia in many ways before and after independence in various ways, and the role of President Martti Ahtisaari was signiîcant in establishing Namibia’s independence plan.

Interaction between Finland and Namibia is lively still today, especially in the areas of culture, science, and education, as well as amongst Churches and municipalities. Today, development and cultural cooperation is high on the agenda for the Finnish Embassy in Windhoek. This agenda is based on the long-standing and broad cooperation between 7 the governments, Churches and institutions in Finland and in Namibia. One of the focal areas of Finland’s Fund for Local Cooperation is the strengthening of Namibia’s culture, which is one of the reasons for providing assistance to ascertain the various communities’ customary laws.

TheNamibianCustomaryLawAscertainmentProjectfallsundertheauspicesoftheHRDC. The Project has been undertaken in cooperation with the Council of Traditional Leaders and its Chair, King Immanuel Kauluma Elifas of the Ondonga Traditional Authority; the Ministry of Regional and Local Government, Housing and Rural Development; and the Ministry of Justice by way of its Directorate of Law Reform and Development. The Project has the ultimate goal of ascertaining and publishing, in two volumes, all the individual customary laws of Namibia. The Project gained extraordinary importance after the Council of Traditional Leaders resolved that each traditional community in Namibia should investigate its customary laws and note the most important aspects of 8 such law in a written document. All of the Namibian customary laws are planned to be published in the vernacular language of the speciîc community concerned, as well as in English, the country’s ofîcial language. A proîle of each community complements the published laws to offer the reader some context and background.

The Namibian Customary Law Ascertainment Project isexpected to beneît the Namibian justice system. During the 11th meeting of the Council of Traditional Leaders held from 10 to 14 November 2008, HE President Hiîkepunye Pohamba, when mentioning the 9 Community Courts Act, expressed his appreciation of the Project. Especially in view of

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Hinz, MO. 2003.Customary law in Namibia. Development and perspective(Eighth Edition). Windhoek: Centre for Applied Social Sciences. Ruppel, OC. 2008. “The Human Rights and Documentation Centre at UNAM”. In Horn, N & A Bösl (Eds).Human rights and the rule of law in Namibia. Windhoek: Macmillan Namibia, pp 131–140. See http://www.înland.org.na/public/default.aspx?nodeid=41071&contentlan=2&culture=en- US, last accessed 12 January 2010. See http://www.aspr.ac.at/unesco/int_bulletin/6_200405/Partb/Namibia.PDF, last accessed 12 January 2010. No. 10 of 2003.

Foreword

the Act’s implementation, it will be difîcult – if not impossible – for Namibia’s courts 10 to operate without written laws. Comprehensive research was conducted, therefore, in order to collect the various communities’ customary laws. Through the ascertainment process, contraventions of constitutional provisions could be identiîed so that the communities could consider making changes to their laws.

So far, many traditional communities in Namibia have already ascertained their customary laws. However, due to the limited capacity at the HRDC, it was decided to divide the project into two phases. The HRDC, with Prof. Manfred Hinz as Project Coordinator, assisted by Ms Ndateelela Emilia Namwoonde, HRDC staff and students, were able to realise Phase 1 of the Project between 2007 and 2010. From 2010, the HRDC will continue with Phase 2 of the Project, again under Prof. Hinz’s coordination, and envisages its înalisation by late 2011 or early 2012.

Phase 1 of the Namibian Customary Law Ascertainment Project comprises the 17 communities in the central and north-eastern parts of Namibia, i.e. the eightOshiwambo- speaking communities, the îve communities in the Kavango Region, and the four in the 11 Caprivi Region. The responsibility of liaising with the three clusters was assigned to Ms Namwoonde – simultaneously serving as the Project’s Administrative Coordinator – in respect of theOshiwambo-speaking communities; Ms Felistas Shikerete for Kavango; and Ms Gloria Situmbeko for Caprivi. Ms Namwoonde was assisted by Taimi Nghikembua. They are all cordially thanked for their hard work. The Kavango communities appointed Mr Edward M Sikerete, a Shambyu Senior Traditional Councillor, to act as their coordinator – a decision which proved to be very helpful. Mr Adolf Gabriel (theRukwangaliMs Marjory Mukendwa (the Caprivi translator), language coordinator), Ms Hilma Mbandeka (theOshiwambolanguage coordinator), Mr Christian Thala Mukuve (theThimbukushutranslator) and Tsenaye Linguistics CC for the indigenous language editing are gratefully acknowledged for their work. The same applies to the English language editors Ms Sandie Fitchat (who was also responsible for the layout) and Mr Steve Felton.

The remaining 32 communities in the north-western, central and southern parts of the country will be covered under Phase 2 of the Project. Phase 2 will begin immediately after the completion of Phase 1. It is the HRDC’s aim that one of the îrst steps in Phase 2 will be a meeting with the eight Damara communities. This was determined after recent consultations with Chief Immanuel !Gaseb in his capacity as Deputy Chair of the Council of Traditional Leaders. Chief !Gaseb simultaneously serves as Chairperson of the Damara Chiefs’ Council.

For Phase 2, it is envisaged that a similar approach as that described for Phase 1 will be applied, namely to divide the communities into îve different clusters, such as the Damara,

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See Hinz, MO. 2006. “The ascertainment of customary law”. In Hinz, MO (Ed.). 2006.The shade of new leaves: Governance in Traditional Authority: A southern African perspective. Berlin: LIT Verlag, p 203. Hinz, MO. 2009. “Phase 1 of the Namibian Ascertainment of Customary Law Project to be completed soon”.Namibia Law Journal, 1(2):109.

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