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«Introduction Many lawyers still find it difficulty to accept that customary law is not static, but that it changes – and even is changed in the ...»

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OTHER NOTES

AND COMMENTS

Phase 1 of the Namibian Ascertainment of

Customary Law Project

to be completed soon∗

Manfred O Hinz∗∗

Introduction

Many lawyers still find it difficulty to accept that customary law is not static, but

that it changes – and even is changed in the communities where it applies.1

The widely made reference to the Roman law perception of customary law,

according to which one criterion to distinguish customary law from customs is the continued observation of the former over time,2 is unable to explain the dynamics inherent in customary law recorded by legal sociologists and anthropologists. It is only recently that South African courts have acknowledged that the living law of communities differs from what has been reported to be the official customary law. The said courts have instead opted for the recognition of the living law.3 When the original Namibian Traditional Authorities Act4 was re-promulgated in 2000,5 the new Act contained a provision that was not contained in the ∗ This comment is the shortened version of an article submitted to the conference “African customary law revisited: The role of customary law in the 21st century”, held at the University of Botswana from 23–24 October 2008. The long version of the paper will be published in the conference proceedings.

∗∗ United Nations Educational, Scientific and Cultural Organisation (UNESCO) Professor of Human Rights and Democracy, Professor of Law, University of Namibia.

1 On the concept of customary law, see D’Engelbronner-Kolff, FM. 1998. “The people as law-makers: The judicial foundation of the legislative power of Namibian traditional communities”. In D’Engelbronner-Kolff, FM, MO Hinz & JL

Sindano (Eds). Traditional authority and democracy in southern Africa. Windhoek:

New Namibia Books, pp 62f. The term community is used to denote traditional community as defined in the law that governs Traditional Authorities in Namibia, namely the Traditional Authorities Act, 2000 (No. 25 of 2000) and its predecessor, Act No. 17 of 1995, as amended.

2 The usual reference in southern Africa is Van Breda v Jacobs, 1921 AD 330.

3 Cf. Himonga, C & C Bosch. 2000. “The application of African customary law under the Constitution of South Africa: Problems solved or just beginning?”. South African Law Journal, 117:306ff.

4 No. 17 of 1995.

5 As the Traditional Authorities Act, 2000 (No. 25 of 2000).

Namibia Law Journal

OTHER NOTES AND COMMENTS

original version of the Act. Section 3(3)(c) of the 2000 Act mandates Traditional Authorities to “make customary law”. This provision has legal implications that have not yet been fully explored and interpreted, including in constitutional terms, which suggests Parliament to be the main – if not only – lawmaker.6 Apart from the authority to “make customary law”, the Traditional Authorities Act expects Traditional Authorities to “ascertain” the customary law applied in the various communities and also to “assist in its codification”.7 No effort has been undertaken to codify customary law in Namibia.8 However, most traditional communities in Namibia have started a process of what has been called self-stating customary law.9 Self-stating is understood as opposed not only to codifying, but also to restating, in the sense of the Restatement Project of the School of Oriental and African Studies at the University of London.

Self-stating customary law refers to the communities themselves making and ascertaining their own customary law.10 Self-stating is ascertaining customary 6 Cf. Article 44 of the Namibian Constitution. Does Article 44 imply that nobody other than the National Assembly has the power to enact law? For those who follow the Kelsenian state-centred approach, according to which all legal actions are eventually linked to the Grundnorm (basic norm), lawmaking by non-delegated authorities remains an unacceptable anomaly. Legal pluralism avoids the strictness of the state-centred approach by accepting that societal forces create and administer their own laws. On legal pluralism, see Hinz, MO. 2006. “Legal pluralism in jurisprudential perspective”. In Hinz, MO (Ed., in collaboration with HK Patemann). The shade of new leaves. Governance in Traditional Authority: A southern African perspective. Münster: Lit Verlag, pp 29ff; and Menski, W. 2006.

Comparative law in a global context: The legal systems of Asia and Africa (Second Edition). Cambridge: Cambridge University Press, pp 82ff.

7 Section 3(1)(a) of the Act.

8 The ascertainment of customary law was the topic of an international workshop organised by the Namibian Ministry of Justice in 1995; cf. Bennett, TW & M Rünger (Eds). 1996. The ascertainment of customary law and the methodological aspects of research into customary law: Proceedings of workshop, February/ March 1995. Windhoek: Law Reform and Development Commission. Apart from the alternative of codifying customary law, its restatement – as practised in many African countries by the School of Oriental and African Studies of the University of London – was debated; cf. Allott, AN. “The Restatement of the African Law Project and thereafter”. In Bennett & Rünger (ibid.:31ff). The author of the current article pleaded for “law reform from within” (Becker, H & MO Hinz. 1996. “Customary-law research in Namibia: Methodological remarks”. In Bennett & Rünger (ibid.:77ff)), including the need to link the various communities in Namibia with each other in order to create an interactive process of law reform (ibid.:92).





9 See here Hinz, MO, assisted by Santos Joas. 1995. Developing customary law: Self-stated laws of Namibian communities and customary law consultative meetings with traditional leaders. Windhoek: Centre for Applied Social Sciences, pp 3ff; Hinz, MO. 1997. “Law reform from within: Improving the legal status of women in northern Namibia”. Journal of Legal Pluralism and Unofficial Law, 39:69ff; Hinz, MO & JW Kwenani. 2006. “The ascertainment of customary law”. In Hinz (2006:203ff).

To what extent communities develop their laws by themselves, i.e. by their members, or at least in line with community-accepted rules, is a question to which this article will return at a later stage, although it will not be possible, on the basis Volume 1 Issue 2 July 2009 Phase 1 of the Namibian Ascertainment of Customary Law Project law by the people themselves, but self-stating also encompasses the making of rules by the communities concerned in accordance with their customary law, while ascertaining those laws. Ascertaining or self-stating customary law is very different from codifying it. When, for example, criminal common law is being codified, such codification is meant to replace the common law in force before it was codified. However, the law in force before may still be of help to interpret the codified law, but will otherwise cease to exist as law.

The ascertaining of customary law, on the other hand, does not render the non-ascertained parts of the customary law concerned obsolete: this nonascertained part of the law continues to exist. The ascertained part of it may even be revisited by the respectively underlying customary law solely in existence before the ascertainment.11 The following observations are intended to give an account of the state of affairs as regards what has developed over the years into the Namibian Ascertainment of Customary Law Project by Self-statement.

From the Ongwediva Meeting to a nationwide project of self-stating customary law At a conference organised by the Namibian Ministry of Justice in April 1992 on the administration of justice for magistrates, other judicial officers and Traditional Authorities,12 one of the traditional communities – the Vakwangali, who live in the western part of the Kavango Region13 – presented a document titled The Laws of Ukwangali.14 These laws deal with different wrongs (such as murder, robbery, rape and assault) and the legal consequences a traditional court may impose in the case of conviction.

of the available information, to provide the reader with a comprehensive answer.

What has been said in this paragraph is still open to further consideration.

However, the outlined principles are concluded from opinions held in comparative law about the European approaches to codification (cf. Zweigert, K & H Kötz.

1996. Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts (Third Edition). Tübingen: JCB Mohr, pp 84ff)), common sense, and observations of traditional court practices.

Cf. Hinz. MO & MF Sichilongo. 1992. “Report of a seminar on the administration of justice for judicial officers, police officers, regional commissioners and traditional leaders, 4–5 April 1992”. [Unpublished paper]; and Hinz, MO. 2008a. “Traditional courts in Namibia – Part of the judiciary? Jurisprudential challenges of traditional justice”. In Horn, N & A Bösl (Eds). The independence of the judiciary in Namibia.

Windhoek: Macmillan Education Namibia, pp 149ff.

In accordance with Article 102 of the Namibian Constitution, the country is divided into 13 Regions, each with its own regional government structure. Besides these, there are also traditional structures of government in place. In many parts of the country, traditional structures are the first (and sometimes only) governmental entry points for the people.

The Laws of Ukwangali can be found in Hinz (1995:119ff).

Namibia Law Journal OTHER NOTES AND COMMENTS

The conference understood that the laws of Ukwangali were presented in order to create awareness about the workings of the law at the most local level and, by doing so, to call on the meeting to take note of the traditional administration of justice as an integral part of the overall justice system of the country. With this, the conference became a challenge to all who thought that the traditional administration of justice was something of the past. In fact, the debate at the conference turned into the starting point of a long process of investigating the administration of justice under customary law and its inherited legal framework, and to set out principles for the drafting of a new uniform piece of legislation that would provide for the operation of traditional courts in line with constitutional requirements.

Research following the 1992 conference and visits to various traditional communities15 revealed that other communities had compiled documents similar to the Laws of Ukwangali. A preliminary analysis of the documents showed that even communities belonging to the same language group and living close to each other provided for different consequences for the very same wrong. This led to several rounds of consultations in various parts of the country. The consultations were used to expose the communities to information about the legislative achievements of other communities in the country.

The first consultation of this kind, a meeting with the Oshiwambo-speaking communities, was held in Ongwediva on 25–26 May 199316 and became, in retrospect, the most prominent one as it set the tone for meetings in other parts of the country and eventually led to the birth of the nationwide project to ascertain customary law in the various communities by self-statement.17 Indeed, the exchange of information prompted the Oshiwambo-speaking communities, the communities of the Kavango Region, and the Nama communities to consider the harmonisation of certain parts of their customary laws.18 Efforts to harmonise customary law applied in particular to the fines for Aspects of the research are summarised in Hinz, MO. 2008b. “Traditional governance and African customary law: Comparative observations from a Namibian perspective”. In Horn, N & A Bösl (Eds). Human rights and the rule of law in Namibia. Windhoek: Macmillan Namibia, 71ff.

16 The Ongwediva Meeting and the others that followed were organised by the Centre for Applied Social Sciences – an independent research institution later associated with the Faculty of Law at the University of Namibia – through its Customary Law Unit, in cooperation with the Ministry of Justice.

17 The work of the Customary Law Unit has been supported by several foreign donors. Among them are the Swedish International Development Agency, Sida, and more recently the Mission of Finland in Namibia, which has made its assistance available through the Human Rights and Documentation Centre of UNAM’s Faculty of Law.

18 After the Ongwediva Meeting. The Kavango groups followed in Rundu from 8–9 June 1994, while the Nama communities of central and southern Namibia had their first meeting in the Kai-//Ganaxab Centre from 1–2 December 1994. The minutes of these meetings can be found in Hinz (1995:119ff). The Ongwediva Meeting minutes were also included in Elelo lyopashingwana lyOshilongo shOndonga – Traditional Authority of Ondonga. 1994. OoVeta (Oompango) dhOshilongo Volume 1 Issue 2 July 2009 Phase 1 of the Namibian Ascertainment of Customary Law Project wrongs committed, i.e. the amount of compensation to be paid by guilty persons.

An example of this can be found among Oshiwambo-speaking communities, under whose jurisdiction the amount of cattle to be paid as compensation in the case of killing a person ranged from 9 to 15. The Ongwediva Meeting decided to standardise the fines for killing at 10 head of cattle. Another matter of particular importance discussed during the consultative meetings with the Oshiwambo-speaking communities at Ongwediva and the communities of the Kavango in Rundu was the customary law of inheritance.

By the end of 1995, about 15 pieces of self-stated customary law had been collected.19 Although there are many similarities, in many instances the documents differ according to what the respective community found important to put in writing. This can already be demonstrated by what happened in the 1994 version of the Laws of Ondonga in comparison with the 1989 edition.

In the 1994 version, one can identify three types of changes effected in

amendment:

• Formal changes to clarify the language used in the 1989 version of the laws • Insertions of new offences and their reinforcements by defined fines, and • Most importantly, the already reported changes to further strengthen the legal situation of widows, i.e. beyond the achievements in the 1989 version of the laws.



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