Table of Content

1. Introduction

2. Background

3. Applicable Provisions in the Namibian Constitution

4. The importance of the constitution regarding the application and enforcement of

customary law in Namibia

5. The need to ascertain Customary Law in Namibia

6. Conclusion

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 1.Introduction

Prior to indulging into the hot waters of this paper it is worth defining Customary law.
Customary law is a set of customs, practices and beliefs that are accepted as obliga-
tory rules of conduct by indigenous people and local communities. 1 Customary law
forms an intrinsic part of their social and economic system and way of life. With this
said, we will discuss the background of customary law, the importance of the Namib-
ian Constitution regarding the application and enforcement of customary law in
Namibia, and lastly case law will be provided where necessary.

2.Background

Namibia like other countries in Africa experienced colonialism. Customary law was
applied by traditional authorities who presided over the traditional judicial structure
known as chiefs’ courts Mertens (1966:4). These courts existed for long periods of
time. In general, significant aspects of customary law are habitual and not written
rules; they refer to oral traditions only, and as a result, customary law is charac -
terised by great flexibility. By virtue of the Native Administrative Proclamation 15 of
1928 of the South African Administration officially recognised the application of cus-
tomary law in South West Africa. Section 28(1) of the proclamation gave the adminis-
trator the jurisdiction to constitute courts of Native Commissioners, for the hearing of
civil matters and criminal matters between Natives only. 2

In addition, Proclamation R348 of 1967 entitled native courts to hear civil and crimi-
nal matters on minor offences such as assault or crimen injuria. However, jurisdiction
over serious crimes was not passed to natives.

3.Applicable provisions of the Namibian Constitution

According to Article 66 of the Namibian Constitution, common law of Namibia which

was in force on the date of independence remains in force, as long as it is not in con-

1:hppt//www.wispo,int/edocs/puddocs/en/wipo_pub_tk_7.pdf.
2 Section 9 proclamation 15 of 1928: notwithstanding the provision of any other law, it shall be in the discre-
tion of the courts of native commissioners in all suits or proceedings between natives involving questions of
customs followed by natives, to decide such questions according to the native law applying to such customs ex-
cept in so far as it shall have repealed or modified: provided that such native law shall not be opposed to the
principles of public policy or natural justice: provide further that it shall not be lawful for any court to declare
that the custom is repugnant so such principles.

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 flict with the constitution of Namibia or any statutes. 3 It further goes on to elaborate
that, customary law can be repealed or changed by Parliament as long as Parlia-
ment follows the constitution.4 Customary law bases its focus on the traditions of the
community. It allows every person to go about their culture as they please. Since
1990, after the independence of Namibia, the application and enforcement of cus-
tomary law in Namibia came into existence to satisfy different traditional groups, re-
gardless of ethnicity. Article 19 states that every person shall be entitled to enjoy,
practise, profess, maintain and promote any culture, language, tradition or religion
subject to the condition that the rights protected by this article do not impinge upon
the rights of others or the national interests. 5 Article 21 correlates with the benefits of
enforcement of customary law. It further states that, all persons shall have the right
to practise any religion and to manifest such practices. 6 This gives privileges to peo-
ple that ought to involve themselves with such practises. Most of the articles govern-
ing the enforcement of customary law in Namibia fall under Chapter 3, which are the
Bill of Rights. These are the civil and political rights that the constitution has to up-
hold regardless of any circumstances. The Namibian constitution makes provisions
under Article 25 which gives the person whose rights were infringed to approach a
competent or tribunal to resolve disputes which arose.

4.The importance of the constitution regarding the application and

enforcement of customary law in Namibia

The Namibian Constitution states in Article 1(6) that the Constitution shall be the
Supreme Law of Namibia.7 This means that all laws such as Legislation, Common
and Customary Law are weighed up against the Namibian Constitution in order for it
to be valid. When Legislation, Common Law and Customary Law is in conflict with
the provisions set out in the Namibian Constitution, the Constitution will rise as the
supreme Law. When focussing on the importance of the constitution regarding the
application and enforcement of customary law in Namibia, one should mainly focus
on Article 66(1) of the Namibian Constitution. This states that no Customary law may
be enforced if it is in conflict with the provisions of the Constitution. The Namibian

3 The Constitution of the Republic of Namibia.

4 (ibid).
5 (ibid).
6 (ibid).
7 (ibid).

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 Constitution sets a limit for Customary Law. These limits includes the protection of
life, liberty and human dignity as well as other provisions that are set out in Chapter
3 of the Namibian Constitution. Customary law, like every other kind of law in
Namibia, must follow the Constitution. In the case of S v Sipula8 a tribal policeman
was on a charge of assault with intent to do grievous bodily harm by hitting the com-
plainant on the buttocks with a stick. The accused pleaded guilty. The Accused car-
ried out an order of a tribal court which had imposed a sentence of corporal punish -
ment upon the complainant. The issue in this matter was whether corporal punish-
ment imposed by a tribal court is unconstitutional? The accused was found guilty.
The court came to a conclusion and held that corporal punishment which is imposed
in accordance with the native law and custom, notwithstanding that it was given
recognition by statutes such as Proclamation R348 of 1967 and R320 of 1970, was
not a formal system of punishment which originated from and is formulated by a gov-
ernment authority. This is to say that corporal punishment is not made up by govern -
ment, and is thus not to be tolerated as such. In the case of Ex Parte Attorney Gen-
eral Corporeal Punishment9 the Attorney General submitted petition to Chief Justice
seeking for the Supreme Court to exercise its jurisdiction to act as court of first in-
stance, in hearing and determining a constitutional question. The issue in this matter
was whether or not the infliction of corporeal punishment by organs of state is uncon-
stitutional due to conflict with provisions in the Namibian Constitution? The judge-
ment in this matter was Corporeal punishment upon adults in consequence of a sen-
tence and inflicted by the state is in conflict with Namibian Constitution. It is declared
that the imposition of any sentence by any judicial of quasi-judicial authority, or di -
recting corporeal punishment upon any person is unlawful and in conflict with Article
8 of the Namibian Constitution. It was further declared that the infliction of corporeal
punishment in government schools pursuant to the existing code formulated by the
Ministry of Education, Culture and Sport or any other direction by the said ministry or
any other organ of government is unconstitutional and unlawful and in conflict with
the Article 8 of the Namibian Constitution.

5.The need to ascertain customary law in Namibia

81994 NR 41 (HC)
9 1991 (3) SA 76

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 Namibia or South West Africa, like in all other African countries that experienced the
imposition of colonial administration and legal systems, had in existence a legal sys-
tem and judicial structures prior to the advent of colonialism. 10 Before the many In-
terventions by statutory law, and, more so, before the development of independent
nation states, traditional leaders could state with good reason: why ascertain cus-
tomary law? Self-stating customary law has a long history in Namibia, going back to
pre-independence developments in some of the traditional communities. The efforts
by some of these communities, undertaken more or less independently, eventually
resulted in a nationwide customary law ascertainment project. 11

Ascertainment is any kind of authoritative transfer of orally transmitted customary law

into a written form.12 It is needed as one can hold that the act of ascertainment
legally qualifies the ascertained version of customary law. There are a couple of soci-
etal change to which the “ascertainment of customary law” may offer an adequate re-
sponse;

• Fading knowledge of what the relevant customary law is, is actually due to ho-
mogeneity and with ascertainment of this laws, it will be clear.

• Growing legal complexity especially in urban areas requires to (even) stan-

dardize customary law.

• Growing acceptance that the verdict of the chief is not necessarily the last
word, reason being as to why ascertainment is need so it may be subject to review in
court.

Taking those indicators serious, the ascertainment of customary law seems to be a

valuable tool to support a process of transformation and change: A tool to sensitively
formalize customary law in order to meet societal change and to better integrate cus-
tomary law into a constitutional context. The process of ascertaining customary law
is unavoidable.

If customary law is going to become part of mainstream as envisaged by the commu-

nity courts act, the Traditional Authority will also have to deal with the fact that only

10 Amoo.S.K. An Introduction to Namibian Law. Windhoek; Namibia: Macmillan Education Namibia, p105.
11 Customary law ascertained Volume 1.
12 Namibia’s Traditional Authorities Act No.25 of 2000.

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 those customary laws that are in harmony with the constitution 13 ,will survive under
the new constitution dispensation.

6.Conclusion

In conclusion, Namibian customs and practices have started to be appreciated more

in recent years, making it easier to be lawfully applied accordingly. It has not been an
easy initiative putting to fact that there are various cultures, some of which are in
conflict with the Namibian Constitution. However, Constitutional provisions make it
possible for everyone to manifest in their respected culture. The interference of com-
mon law has an impact on Customary law since they constitute a different perspec-
tive including forms of punishment. It is clear to see that the Constitution limits some
aspects of Customary law and therefor constitutes in an important role of Customary
Law.

Bibliography

1. :hppt//www.wispo,int/edocs/puddocs/en/wipo_pub_tk_7.pdf

2. Section 9 proclamation 15 of 1928

3. The Constitution of the Republic of Namibia

13The Constitution of the Republic of Namibia.

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 4. Amoo.S.K. An Introduction to Namibian Law. Windhoek; Namibia: Macmillan Edu-
cation Namibia, p105.

5. Customary law ascertained Volume 1

6. Namibia’s Traditional Authorities Act No.25 of 2000

7. Ex Parte Attorney General, Namibia: In Re Corporal Punishment

8. S v Sipula 1994 NR 41 (HC)

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