This article about the concept of customary law ascertainment, its creation in Namibia

and its migration to South Sudan, where the concept received mixed views. The three
components of the report are connected directly with the recent projects of the author.
Alongside these documentary aspects, the paper contributes to the ongoing general debate on
whether and how to codify customary legislation on the one side, without compromising its
flexibility on the other, on the practical work done by one of the most knowledgeable German
legal scholars regarding legal pluralism.
The author explains in the first portion the importance of commitment in the Namibian
sense. The corresponding Namibian Act defines determination as "any kind of authoritative
transfer into written form of orally passed customary law". This definition includes, according to
the author, various forms, including the customary legislation, the rehabilitation of customary
law, the self-determination of customary law and academic records are excluded, such as
observations of the court, analyzes of the casebooks, collections of cases and case
complementary information from parties. The concept of customary law is at the heart of the
Namibian concept the second section of the article, Section 4, clarified the Customary Law
Ascertainment Plan.' Regarding methodological discrepancies, the self-stating end-product is
"made in the society to obey the law involved and enforce it" and is "binding on the group".
Referring in a previous article to negative remarks about this approach. It doubts if the strategy
is an effective tool to tackle the challenge of ensuring fair access to justice.
It is necessary to note these distinctions, and to stress that one approach to render legal
laws the only approach to do so is not sufficient. If one looks back through the past of legal
systems, we can see that very particular social conditions have contributed to the emergence of
the various legal systems. The ongoing dialogue between traditional law supporters, on the one
hand, and civil rights activists, on the other, is quite enlightening as they disagree over the
adequacy of all strategies that include substantive solutions to social issues.
In a discussion that proceeds as if attempting to put a bid in a plugged trap, the speaker
provides a helpful insight the composition of existing customary law, without refusing it its
significance. It is done in a unique way by presenting two different projects at various ends in
Africa, instead of theorizing possible chances or falls, which actually attempt to find adequate
solutions in practice. This view provides a wider perspective into the topic. The richness of the
topic which the author could develop reflects that he is left behind with even more questions
after reading this article. The second part of the question in the title is unanswered: For which
purpose is the determination of customs law? Or put it in another way: why? And why is it
necessary for? What are the shortcomings identified Customary legislation demanding their
determination?
The analyst discusses in depth what appraisal is about, but only few points are given
whether it is truly beneficial ("what it's useful for"). Provided that the notion of ascertainment is
not used to address current deficits and obstacles in itself, the reader asks whether there have
been appropriate pre-evaluations. The author mentioned several indicators that can be
adequately addressed by "customary law assessment": a fades of knowledge as to what is in
fact due to the lack of homogeneity in the relevant customary law, an increasing legal
complexity, particularly in urban areas, requires standardization of customary law; and a
growing acceptance that the verdict of the head is not the result of. If such measures are taken
seriously, a 'customary law ascertainment' becomes a powerful instrument for promoting the
cycle of reform and change: an instrument for sensitively formalizing customary law to resolve
social shifts and incorporate customary law in a constitutional sense.
The Community Courts Act8 in Namibia deals with the establishment of customs law in
section 13, influenced by similar legislative practice in many former UK colonies. The provision
lays forth the rules for the court to follow "as to the nature or substance of a traditional rule of
law." in the case of uncertainty. In such cases, courts may "ascertain" customary law through
consultation with oral or written opinion of "cases, textbooks and other sources." In other
words, it means more than simply having the customs law recorded in some way in the legal
context.
It may therefore be more than a pure chance to have been asked by the Government,
but not by the local communities, to establish a policy focused on the Namibian model for
customary law. The concept of ascertainment can bridge the different views on the future
relationship between customary law and formal law, in accordance with the Minister 's
commitment to implementing the constitutional requirement that "traditional authority shall
operate in accordance with this constitution and the law"40.
The author said that there are important lessons learned through the years through
legal anthropological studies and accepted by the law courts. Such lessons are useful for many
todays who warn of codifying customary law as codification would kill one of the main features
of that statute: its accessibility to accepting reconciliatory issues, rather than to compel the rule
to win over both parties. Customs law is particularly open to negotiation, not only the solutions
needed for the application of the various laws, acceptable for all the parties to a case.
Provided that the determination of customary legislation (and more precisely the self-
exercise of customary law) encourages transformation processes from conventional customary
law to a more formalized law grounded in the principles of practice, one wonders if other
methods are possible which are more effective for the same reason. When the workshop in
Onati was considered the starting point41, it should have been useful to examine the political
effect of the definition of customary law on certain alternatives. If it is up to the community to
decide which law should be made and which portion of its law should be established in writing,
the core element of self-esteem might be to wonder who represents the Community actually. Is
it just the head and the elders or also something like a 'community meeting' (for example a
South Sudan Boma Council)? And this is not a good case of popular democracy that the
customary law is autonomous and periodically checked by members of the society to insure that
customs reform is reflected?? Are there still such dynamics? In his final remarks (Section 7), the
author deals briefly with this issue, but it would be exciting to learn more about it in detail.
The legal nature of urban areas, under which various customary rules apply, is also
becoming increasingly evident, needs due consideration through defining and standardizing
customs law. The Chief 's verdict does not necessarily constitute the last word. Unhappy parties
are able to take this verdict upon appeal from the Court of Appeal. The judges hearing such
appeals will not necessarily know what the customary law the court applies and may not be
aware of it if they are informed in writing.
Furthermore, author of this article said that customary self-esteem law in Namibia has a
long history, going back to the development of pre-independence in some traditional
communities. Many of these communities' initiatives, made more or less individually, eventually
contributed to the creation of a regional customary law program. The Traditional Leaders
Council endorsed the proposal a couple of years ago, and encouraged traditional authorities to
begin to determine their usual legislation.
Almost unsolvable language problems had to be resolved in preparation of the published
versions of the customary laws. This ultimately prompted the project to recognize and convert
some of the records into the indigenous languages of the region. That was given the problems
with respect to the interpretation of the language used by the project assistants studying the
related languages as mother tongues. The idea is that the English translation should be as
similar as possible to the original documents, however, in fact, certain legal principles in
indigenous languages did not necessarily articulate the same vocabulary as their counterparts
for the English translation.
Some years ago, when we discussed the laws of other communities we had already
collected, some of us working in the project were criticized. By circulating documents which are
somehow deemed secret, we were said to have infringed customary law. We objected and have
subsequently accepted that our objection: it is clear that other cultures have taken care of what
other societies are doing, particularly incorporated regulations that many cultures build into
their own legislation. There are even references to scholarly work in today's autographs. It is
promising, as some of the sketches display the handwriting of professional local residents, and
this handwriting will not necessarily be in accordance with the expectations of the community
leaders concerned.
The author's interpretation of codification is not fully simple. On the subject firstly, the
codification of customary law as customary legislation being transformed into a parliamentary
act is very narrowly defined. Parliament 's activities are exclusively actions of the national
legislature in the Namibian sense. "Self-statement can be deemed to represent a codification,
the former not codification by state bodies, as normally happens." The author states. In this
case, the term codification is more broadly understood and includes all state institutions,
including sub-nationals. He then explains that "such a codification of the community leaves the
law subject to community amendments." Would that mean then the codification applies even to
group laws? Are regulations at local level therefore 'codifications' that can make customary law
a statutory document? And at what stage are state institutions regarded in Namibia? Was it
enough that the Constitution addresses them? Will the state pay them? In this regard, some
clarification would help to better understand the author's arguments against "codification."
The plan for customary law advocates intervention in five regions, starting with the
development of customary law, which is focused on a 10-step model centered on Namibian
practice. What is lacking is the pre-evaluation as to how the Namibian paradigm is in general
and in relation to various areas in southern Sudan. In particular, the merits and challenges of
importing external ideas and concepts into another legal environment are widely debated.
There was then a sort of tentative evaluation if and to what degree applicable criteria are still
accessible in Southern Sudan in Namibia? Is it the same need? Given the fact that customary
law is established as a means of supporting transformation processes is transformation
necessary a similar approach? In Southern Sudan, writing documents have the authority to
differentiate the code from statement in practice, "he explained.
Obviously, it is definitely not the last term in the report on the customs law of the
concerned societies. They will further develop their laws and therefore change the written
content over time. For instance, the communities of Owambo and Kavango regularly meet for
decisions on their law amendments. The amount for fines which courts have committed wrongs
or so called "official pricing for one head of cattle" relating, to some degree, to changes in the
market value of these animals, is a particular aspect which receives continuing attention.
In the context of the article, the author introduces several results in the study proposing
that conventional courts and traditional authority be controlled. In terms of traditional law
versatility, without weakening the concept as such, will the operational climate be regulated?
The strength of customary law is seen as flexibility and negotiability. This will be beneficial for
the user to learn what the speaker refers to as negotiable. The inflation-based and contextual
adaptation of fines is also very familiar to other jurisdictions. Negotiations are also not alien to
other systems. In German employment law, for example, most cases are reconciled before a
judge rather than settled by a decision. Perhaps any knowledge will be useful to enhance our
perception of the meaning of customary law. In Namibia and southern Sudan, conventional
societies exist in shifting and pressurized environments that cause citizens to wonder about
their beliefs, traditions and rules. Change is inevitable, and the imperative to question the basic
principles of customs law must be included. In other terms, the self-stated method contributes
to group engagement and dialogue and builds recognition of civil rights and perceptions of rule
of law. Finding yourself by yourself is a process. This is not just an academic interpretation but
a practice that reflects. In processes of self-esteem, what happens is in line with democracy as
a communication system.