CODeL ASSIGNMENT COVER

2022 ACADEMIC YEAR

Student Name Koromora Blessed
Student number 221334696
Email Address blessedkoromora21@gmail.com
Cell/Tel no 0814071090
CODeL Centre Windhoek Centre

Course/Module Name Course/Module

Code
Customary Law JCU3601

Assignment no
(e.g. 1, 2 or 3, etc.).
2
Question 1. Discuss whether a Traditional Leader/Chief is allowed to discipline his/her
subjects by way of corporeal punishment.

Traditional leaders preside over traditional communities which are the creation of the
Community Courts Act 10 of 2003. The Act also provides detailed procedures and
requirements for the establishment and recognition of community courts in a particular
traditional community 1 . Traditional Leaders derive their power from the Traditional
Authorities Act 25 of 2002 and have the jurisdiction to preside over both civil and
criminal matters under section 12 of the Community Courts Act,2003 which states that
a community court shall have jurisdiction to hear and determine any matter relating to
a claim for compensation, restitution or any other claim recognized by the customary
law, but only if the cause of action of such matter or any element thereof arose within
the area of jurisdiction of that community court; or the person or persons to whom the
matter relates are in the opinion of that community court closely connected with the
customary law2.

Given the provided jurisdiction Traditional leaders cannot impose custodial sentences
or impose a punishment that is contrary to the constitution3. According to Berker, C.J,
the one major and basic consideration in arriving at the decision pertaining to whether
corporal punishment impairs human dignity and can be used by courts as punishment
involves an enquiry into the general norms, approaches, moral standards and a host
of other established beliefs of the people of Namibia4. This means that one must make
a conclusion based off value judgment and not simply off statutory provisions and legal
precedents but rather one must take full cognizance of the social conditions
experiences and perspectives of the society5. Such actions further advance the legal
theory of Afrocentric jurisprudence which emphasizes the importance of African

1 Amoo, S.K. The Structure of the Namibian Judicial System and its relevance for an Independent
Judiciary. https://www.kas.de/c/document_library/get_file?uuid=6f5df420-fdb8-499c-ee80-
c1516dce114e&groupId=252038 . p22.
2 The Community Courts Act,2003. Section 12.
3 Amoo, S.K. The Structure of the Namibian Judicial System and its relevance for an Independent

Judiciary. https://www.kas.de/c/document_library/get_file?uuid=6f5df420-fdb8-499c-ee80-
c1516dce114e&groupId=252038 . p22.

4 Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA 14 of 1990) [1991]
NASC 2 (5 April 1991)
5 Ibid.
cultural values and traditions in the development of legal principles and systems 6.
Additionally in ‘Humaneness as a Core Value in Afrocentric Jurisprudence’ Boateng,
K states that generally the traditional legal system is grounded in humaneness or
Ubuntu which makes it better equipped to serve the interest of justice, fairness and
equality7. To determine the legality or rightfulness of a traditional leader’s conduct of
using corporal punishment, the reasoning for such punishment should fall inline with
Article 8 of the Namibian Constitution which guarantees to respect for human dignity,
freedom from torture, cruel and inhumane degrading treatment8.

The concept of Ubuntu is an important pillar in traditional communities and it also

signifies the rejection of violent and degrading forms of discipline or punishment in
favour of alternative forms of punishment that promote respect and understanding.
Additionally taking note of Article 8 of the Namibian Constitution, perhaps the most
important element in determining whether traditional leaders can apply corporal
punishment to discipline their subjects, is the desirability of corporal punishment, even
if moderately applied and subject to very strict controls, the fact remains that any type
of corporal punishment results in some impairment of dignity and degrading
treatment9, and as such traditional leaders cannot subject their subjects to corporal
punishment.

Question 2. To what extent does the Namibian Constitution impact on litigation arising
from the enforcement and application of customary law?

Article 66(1) of the Namibian Constitution states that ‘both the customary law and the
common law of Namibian in force on the date of independence shall remain valid to
the extent to which such customary or common law does not conflict with this
Constitution or any statutory law’10. The provision is mainly concerned with confirming
the validity of customary law and determining its relationship with the Constitution and

6Okeke, J.N.N. "Afrocentric Jurisprudence: An Overview." African Journal of International and

Comparative Law, vol. 27, no. 1, 2019, pp. 44-46.

7Boateng, K. "Humaneness as a Core Value in Afrocentric Jurisprudence." Potchefstroom Electronic

Law Journal, vol. 18, no. 5, 2015, pp. 121-123.

8The Namibian Constitution Third Amendment Act,2014. Article 8.

9Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA 14 of 1990) [1991]
NASC 2 (5 April 1991)

10 The Namibian Constitution Third Amendment Act,2014. Article 66.

prevailing legislation11. Customary law lacks a codified nature due to the ever changing
way of life of the society that live by it. However it was determined in the case of
Mukennah v GRN that the validity of customary law resonates from the community it
is deemed valid and it is massively impacted by the majority expressed opinion of the
community12, with the validity of the law based off social practice it may be very hard
to attain singularity in deciding whether the customary laws are valid, furthermore such
customs are to be used in the confines of the Constitution which is the supreme law
under Article 1(6) of the Namibian Constitution13.

In determining whether a rule is certain, reasonable and uniformly observed for a

period of time of the matter customary law is subject to the opinions of the witnesses
who live according to such laws. The Constitution also subjects customary law to the
hierarchy of the judicial system in Article 78(1) of the Namibian Constitution which
states that the judicial power shall be vested in the courts of Namibia which shall
consist of firstly the Supreme Court of Namibia, secondly the High Court of Namibia
and thirdly the Lower Courts of Namibia14 which includes Community Courts, evidently
separating the courts. Prima facie it indicates loose ranking of rights whereby any to
cultural or customary law would consistently have to give way to the fundamental rights
or the bill of rights such as Article 19 of the Namibian Constitution which provides that
‘the right to culture shall not impinge upon the rights of others’15. This in turn indicates
the conflicting nature of the constitution fundamental rights and customary law16.

The Constitution being the supreme law in the instance that the entire bill of rights
were to prevail over customary law it would consequently lead to an end of Namibia’s
indigenous legal system17. To avoid such a situation the conflict should be resolved
by balancing interests .

11 Bennet, T.W. Customary Law and The Constitution. Law Reform and Development Commission of
Namibia. Windhoek, Namibia.
12 Mukennah v GRN of the Republic of Namibia [2020] NAHCMD 422 (4 September 2020)
13 The Namibian Constitution Third Amendment Act,2014. Article 1(6).

14 The Namibian Constitution Third Amendment Act,2014. Article 78(1).

15 The Namibian Constitution Third Amendment Act,2014. Article 19.

Mukennah v GRN of the Republic of Namibia [2020] NAHCMD 422 (4 September 2020)
16

Bennet, T.W. Customary Law and The Constitution. Law Reform and Development Commission of
17

Namibia. Windhoek, Namibia.p33.

Reference List

Amoo, S.K. The Structure of the Namibian Judicial System and its relevance for an
Independent Judiciary.
https://www.kas.de/c/document_library/get_file?uuid=6f5df420-fdb8-499c-ee80-
c1516dce114e&groupId=252038

Bennet, T.W. Customary Law and The Constitution. Law Reform and Development
Commission of Namibia. Windhoek, Namibia.

Okeke, J.N.N. "Afrocentric Jurisprudence: An Overview." African Journal of

International and Comparative Law, vol. 27, no. 1, 2019,

The Community Courts Act,2003

The Namibian Constitution Third Amendment Act,2014

Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA 14 of

1990) [1991] NASC 2 (5 April 1991)

Mukennah v GRN of the Republic of Namibia [2020] NAHCMD 422 (4 September 2020