Customary Laws in Namibia that should be maintained in the Independent Namibia
Jaime Smith 200203045
In this paper four traditional customary cultures or laws have been identified that could be re-examined and
University of Namibia Customary law I Lecturer: P Anyolo BJuris Part Time 4/25/2012
better integrated and adopted into our independent Namibia. These customary laws will be the recognition or better appreciation for traditional marriages as well as polygamy on grounds of statutory law, the
acknowledgement of the adoption processes of a child under customary law, as well as better recognition of a duel system for inheritance under customary law.
Enhancing gender equality in customary justice systems 1 2 Ibid 2 3 Ibid (footnote 1)
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. a growing body of evidence suggests that poor people in developing countries have limited access to the formal legal system and that their lives are largely governed by customary norms and institutions. it can be explained by necessity. Figures collected by development cooperation departments in Britain and Denmark indicate that in some countries up to 80 percent of the population lives under customary justice systems and has little to no contact with state law. such as knowledge of local affairs.2 These figures are corroborated by findings from academics studying African law.1 However.1. Poor people„s use of customary justice systems may reflect the limited access to and weakness of the formal justice systems rather than an active choice for customary systems based on their satisfaction with these systems3 This can be explained on the one hand by choice. INTRODUCTION The prominence of customary justice systems has often been regarded as incompatible with the modern nation-state and therefore as something to be discouraged or ignored rather than strengthened or engaged with.
J Ubink 2011 Towards Customary Legal Empowerment in Namibia . accessibility and affordability. in cases where local people select customary legal institutions over state institutions for their positive attributes. showing that customary law governs the daily lives of more than three quarters of the populations of most African countries and up to 90 percent of cases in Nigeria are settled by customary courts. On the other hand. in localities and cases where limited penetration of state institutions or lack of access to these institutions is combined with strong or at least stronger local presence of customary institutions.
6 The Constitutional position has been reinforced by Traditional Authorities Act 17 of 1995. making explicit mention of the invalidity of discriminatory customary law7. Article 14 6 S v Sipula 1994 NR 41 (HC). applies only where such a limitation
MO Hinz 2010 Traditional governance and African customary law: Comparative observations from a Namibian Perspective 1 5 Namibian Constitution. shall be invalid to the extent of inconsistency. Section 11 of this Act states that--(a) any custom. CEDAW. 7 Namibian Constitution. which emphasizes that customary law is valid only to the extent that it is consistent with the Constitution and with other statutory law. but are nevertheless results of recent legislative actions.4 Thus it is evident that customary law that has been the cornerstone of most of the populations of Namibia be incorporated into the independent Namibia for both practicality and fundamental reasons as described above. Article 16(1)(a). amended or declared unconstitutional by a competent court. Article 14(1). tradition can marry recent enactments with so-called tradition is said to be in existence since time immemorial. which discusses limitations upon fundamental rights and freedoms.There are rules. (b) any customary law which is inconsistent with the provisions of the Constitution or any other statutory law. Article 665 specifically states that both the customary law and the common law in force on the date of independence shall remain valid only to the extent that they do not conflict with the Constitution. shall cease to apply. tradition. practice or usage which is discriminatory or which detracts from or violates the rights of any person as guaranteed by the Constitution or any other statutory law. As such. or which prejudices the national interest. as long as the enactments of today find their foundation in that tradition. which traditional authorities submit as having been in place incessantly.
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. That recent legislative acts are said to be in existence for long is only a contradiction for those who do not understand the operation of tradition as a socio-political. subject to the caveat in Article 140 that all such laws remain in force until repealed. Article 22 of the Namibian Constitution.
practice. and it would seem very odd indeed if family relationships created by customary marriage were not intended to be included among these fundamental units. These customary laws will be the recognition or better appreciation for traditional marriages as well as polygamy on grounds of statutory law. It does not constitute an independent basis for limitation as discussed in the case of Julius v Commanding Officer Windhoek Prison 1996 NR 390 (HC) at 393D. TRADITIONAL MARRIAGES Although the term “marriage” is not defined anywhere in the Constitution. Article 14(3) makes the policy statement that families are “the natural and fundamental group unit of society”. the acknowledgement of the adoption processes of a child under customary law. as well as better recognition of a duel system for inheritance under customary law. 7 One might
Ibid Article 19
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. In this paper four traditional customary cultures or laws have been identified that could be reexamined and better integrated and adopted into our independent Namibia.is authorized elsewhere in terms of the Constitution. customary marriage is explicitly placed on an equal footing with any other marriage. the entitlement in Article 19 to “enjoy. profess. In both of these provisions. Furthermore. 2.8 The restatement of the right to religious and cultural freedom in Article 21(c) reinforces the idea that no distinction between types of marriages was intended in Article 14. The drafters of the Constitution make specific reference to customary marriages in respect of citizenship in Articles 4(3)(b) and with reference to the prohibitions on spousal testimony in Article 12(1)(f). maintain and promote” any individual culture lends credence to an all-inclusive interpretation of “marriage”.
This means that the provisions on sexual equality in all aspects of marriage are applicable to both civil and customary marriage in Namibia. with persons below that age being able to marry only with the consent of an appropriate state official. The existing law on parental consent for minors should be retained. in accordance with the Namibian Constitution. The free consent of both intending spouses should be required. with its explicit recognition of customary law. the overarching context of the Constitution. argues in favor of reading the general references to “marriage” as including both civil and customary marriage. 9 There should be a minimum age of 18 which is applicable to all marriages. but it should not attempt to be more specific. Prohibited degrees of relationship for customary marriages should be determined in accordance with customary law rather than being prescribed in the statute.11
“Proposals for law reform on the recognition of customary marriages” Legal Assistance Centre 1999 Ibid 11 Ibid
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. 10 The law should require generally that the marriage be entered into and celebrated in accordance with the relevant custom.therefore ask why there was no similarly explicit inclusion of customary marriage in the other constitutional references to marriage. but with no penalty for failure to register. However. although the transfer of bride wealth might continue outside the legal framework. on balance. Recognize unregistered customary marriages as being valid for the same purposes as registered marriages. with safeguards such as those provided by the Marriage Act for civil marriages. There should be no reference to “bride wealth” in the statute. RECOMMENDATIONS Make the registration of customary marriages mandatory. Use the advantages of certainty and proof as inducements to register.
before the Children Inheritance Act was made legislation. Give couples greater freedom of choice immediately by allowing them to register ante-nuptial agreements in respect of customary marriages. Protect women against unfair discrimination in respect of marital property by making it possible for either spouse in a customary marriage to ask a court for a settlement of certain property interests during the course of the marriage or at its dissolution. along the lines of the provisions applicable to civil marriages in the Married Persons Equality Act. to enter into contracts and to bring legal actions in customary or general law forums. particularly to those in rural areas. 3. including equal capacity to acquire and dispose of property.
Married Person Equality Act
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.Allow the property regime of customary marriages to continue to be determined in accordance with custom. until such time as there is universal law reform on marital property regimes. POLYGAMY Some of the cultures in Namibia recognize and indulge in polygynous marriages for the man or husband.12 With regards to equal rights and powers of spouses: the Age of Majority Act should be made explicitly applicable to all women. Make the grounds and procedures for divorce identical for all marriages in a new divorce law which establishes new. more modern grounds for divorce and makes divorce proceedings more accessible. Give husbands and wives in customary marriage full status and capacity on a basis of equality. This has posed various problems to the “wives” of the man in situations such as inheritance and illegitimate children.
In order to safeguard parties to polygynous marriages it should be required to obtain the consent of any existing wives to a subsequent customary marriage by the husband. ADOPTION UNDER CUSTOMARY LAW
Article 14(3) of the Namibian Constitution states that the family is the “natural and fundamental group unit of society and is entitled to protection by society and the State”. In addition to these provisions. Make the subsistence of a registered civil marriage an absolute bar to a subsequent customary marriage with a different woman.RECOMMENDATIONS Recognize polygynous customary marriages as valid marriages in order to protect the rights of the vulnerable parties to such marriages and the social and legal status of the children of the marriage. the right to acquire a nationality and.13 4. or as a potentially polygynous customary marriage blessed by the church (if the church is willing to do so). and forbid civil marriage if there is a subsisting customary marriage with a different woman. Article 144 of the Namibian Constitution reads as
Proposals for law reform on the recognition of customary marriages” Legal Assistance Centre 1999
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. But allow couples who marry each other in terms of both church and customary rites to choose the form in which they will register their marriage – as a ponogamous civil marriage acknowledged by the performance of customary rites. subject to
legislation enacted in the best interests of children. as far as possible the right to know and be cared for by their parents. Article 15 of the Constitution provides that children shall have the right from birth to a name. Require the formation of an agreement for the equitable distribution of marital property amongst all the interested parties before allowing the registration of the subsequent customary marriage.
placement in suitable institutions for the care of such children. foster care is not necessarily permanent.000 registered orphans and other vulnerable children (OVC) in Namibia. for the best interests of a child to be cared for and protected. and 14.16 There are 250. foster care. unlike adoption.17 These figures indicate that the rate of adoption in Namibia is far lower than that in other parts of the world. 17 MGECW (2009b:58).14 Namibia has ratified some of the international agreements on child welfare and is bound to enact legislation that adequately safeguards the welfare of children. the term adoption can also be applied to a related institution in customary law. However.
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. is similar to adoption in the sense that a child is placed from one family into the other.15 There are an estimated 80 adoptions per year in Namibia.000 children were estimated to be in foster care as at February 2009.18 For example. the general rules of
public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia. The reason for this lies in the plurality of the Namibian law and in the different perceptions of each type of law when it comes to adoption. there is the intention that the child will
14 15 16
Namibian Constitution Article 14 (3)
Goran & Alfredson (1997:279) MGECW (2009a). In most cases of foster care.follows: Unless otherwise provided by this Constitution or Act of Parliament. In spite of significant difference to the statutory law.1 In particular. Article 20 therein provides that. foster care arrangements are actually so common that they are not in any sense formal. such care and protection includes adoption or if necessary. Namibia is a signatory to the Convention on the Rights of the Child (CRC). bearing little or even no legal implications. which in Africa is common practice. Under customary law.
by operation of law. they do not become the parents of the child. but now there are simply too
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. promote informal adoption. although the „adoptive parents‟ assume the role of primary caregivers. family name. In more modern times it has also been argued that allowing informally adopted children to inherit from their adoptive parents appears to condone and. Conversely. the nature of the extended family was such that it was possible to absorb all OVC. so there is no severing of relationships with the biological family. they can be seen where a child whose biological parents are deceased is adopted (informally) by another family member whose intention is really to use the child as a token through which to receive the social grant that the Government gives for OVC. but end up in their supposed caregiver‟s pockets. and acquire no legal rights in the home of the foster parent. Under the latter system.19 The child retains his or her original legal status. therefore. the foster parent has no legal rights or duties towards the child under customary law. Instances where adoption under customary law is not in the best interest of the child have become more rampant. and rights and duties acquired at birth. which could sometimes be detrimental to the child. the adoptive parents take the place of the biological parents. Moreover. It is as though. indeed. this has legal consequences for the child. that the „new‟ parents become the „real‟ parents of the child. children who have been formally adopted in accordance with the Children‟s Act inherit from their adoptive parents in the same way as biological children do. In terms of statutory adoption. Under statutory adoption. strictly speaking. they should not be allowed to inherit from their „adoptive‟ parents. in the past. Of course. In some cases. these grants do not reach the child.eventually return to his or her own parents. it is argued that children belong to their parents (especially to their mothers). Under customary law. For example. The situation is quite different under customary law. however.
it raises the question of whether or not customary adoption infringes on the prohibition on trafficking in children. the extended family set-up is an integral part of Namibia‟s societal structure. Bennett (2004:320).20 it was held that the Children‟s Act of 1960 – which still governs adoption in Namibia today – did not affect customary law. Ltd. Kinship care is often informal and unregulated by the state.
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. at 776. in customary law „adoption‟ is a private arrangement. and treats the child as a member of that
1993 (4) SA 771 (TkA). an unmarried woman had assumed full responsibility for a related child and had marked the occasion by slaughtering a sheep and a goat. The child in question is usually the offspring of one‟s kin. when one passes on. This is what is known as kinship care. After all. The court found that this ceremony constituted a valid adoption under customary law.21As becomes clear from the case.many. the traditional African value system still focuses on the interests of the family group or household. Another related issue is that. and it has become the norm that. The result is an extremely fluid environment that leaves children more vulnerable to being sent from pillar to post. One may be of the opinion that adoption under customary law brings about a considerable degree of uncertainty. if payment is made to compensate the natural parents for rearing the child. that is. on the one hand. in the South African case of Kewana v Santam Insurance Co.35 In addition to that it has. Conversely. it is important to note that. for example. children given up for adoption become the adoptive parent‟s child in as far as the formalities under customary law are observed. Nevertheless. with no one really taking responsibility for them. one‟s children are left to one‟s closest relatives. the full-time care of a child by a relative or another member of the extended family (or even by a close family friend). long been uncertain whether statutory provisions governing the procedure and effect of adoption override customary law. However.36 In this case.
industrialized and individualistic society. largely rural and communal society to an urban. Namibia should strongly consider acceding to the Convention. Namibia is not yet a signatory to the Hague Convention on Inter-country Adoption. Hague Convention on Inter-country Adoption. Therefore. as far as possible. stable and permanent family environment instead of an institution. a workable adoption policy for Namibia should provide that. This shift in the social order has been accompanied by the dislocation of the extended family and corresponding shrinkage of the network of kin available for the care and protection of a child. it must have been impossible to place the child in an adoptive home domestically within the given time frame. Namibia would be required by Article 4 of the
O C Ruppel. the individual child‟s interests are often subsumed under those of the family or household as an integral part of the social structure. In doing so.24 In order to safeguard children‟s rights more effectively. P L Shipila “Adoption: Statutory and customary law aspects from a Namibian perspective” 2010
Article 1(a). to do so.household. however. RECOMMENDATIONS It should be the legislators‟ aim to ensure a balance between the ideal that the child should. despite having made all the required efforts. On the other hand. and the ideal that a child should grow up in a loving. in such cases.22 As stated earlier.23 The principal purpose of this Convention is for signatory states – to establish safeguards to ensure that inter-country adoptions take place in the best interests of the child and with respect for his or her fundamental rights. before a Namibian child is adopted abroad. be kept within his/her community of origin. within reason.
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. customary law affects children in the context of the shift from a small scale.
or beyond it. succession under customary law is in addition concerned with the transmission of duties and
O C Ruppel.e. ranging from foster care to adoption and everything in between.Convention to establish a central authority dealing with inter-country adoptions. the onus will be on the Namibian Government. sale and trafficking. Notwithstanding the fact that legal dualism it should also with regard to the issue of adoption. This can be made possible by attaching a greater degree of importance and recognition to the fact that (formal) adoption as we now know it is premised on a Western ideology where the family consists only of one‟s immediate kin. i. to introduce a contemporary law to meet the needs of its people. Adoption.25 5. CUSTOMARY LAW ON INHERITANCE Unlike succession under common law which is concerned primarily with the transfer of property. But also in the traditional African family structure. This requires careful screening and background checks of the adoptive parents in regard to their criminal record. income tax assessments. legislation and monitoring measures need to be put in place to curb such consequences. father and brothers. has value to it. be it within the family. Therefore. To introduce a sense of modernity to the legal aspects of adoption in Namibia. it can also cause legal uncertainty and loopholes. Such risks include abuse. within the country. exploitation. P L Shipila “Adoption: Statutory and customary law aspects from a Namibian perspective” 2010
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. mother. within the community. inevitably carries a variety of risks for the child. and the legislature in particular. laws need to more actively cater for all notions of caring for children by others. occupation history. etc.
The distribution of intestate estates should allow for fragmentation of the estate. The definition of „customary law heir(s)‟ must be worded in a broad and general manner to allow for differential application in different kinship systems. Universal.27 Towards this end. Onerous. to make provision for inheritance by the surviving spouse(s) and children. in that individuals are generally not free to decide to whom their estate will devolve. 27 TW Bennett. in that an heir succeeds to the deceased‟s rights as well as duties. 334 28 Ibid
29 Customary Laws on Inheritance in Namibia: Summary of key recommendations
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. we propose transforming some inheritance issues into issues of maintenance. Customary Law in South Africa.debts. As a practical approach. to ensure equitable economic protection of vulnerable women and children. in that the responsibility to maintain the deceased‟s dependents may not be declined or passed on to another. 1. The following is a summary of the basic approach that they recommend. Introduction to the Law of Succession (3rd Edition). 1990. 2004. If there is no customary law heir (as in the case of families who do not follow
MJ de Waal et al.28 RECOMMENDATIONS It is recommended by Gender Research & Advocacy Project 29 recommend that Namibia‟s approach to inheritance should be to retain a dual system which incorporates the positive aspects of customary law whilst at the same time ensuring respect for all constitutional rights. 2003. and also the primary customary law heir or heirs (ie the person or persons who would otherwise have enjoyed preference based on their status within a particular kinship system). citing Van der Merwe & Roland.26 Under customary law the rules of succession are designed to maintain a particular bloodline and to transmit a deceased‟s rights and duties to a specified member of his or her kin. intestate. customary systems of succession have been described as follows.
and would probably avert many disputes about inheritance. This wider pool of potential beneficiaries should be eligible to receive portions of the estate as heirs only in the absence of a surviving spouse and/or children. then this aspect of the scheme would simply fall away. Legal assistance
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. Providing maintenance for dependents in this way would ensure that the most needy family members are provided for. however.customary law). to apply for maintenance within a prescribed period. Maintenance should be available to all dependents of the deceased whose reasonable maintenance needs are not adequately provided for by will or in terms of intestate succession rules. as well as any other person who was actually dependent on the deceased at the time of the deceased‟s death. It might. 30 Other potential beneficiaries to whom the deceased would have owed a duty of support should not be included in the distribution scheme.31 The maintenance from the deceased‟s estate should make for dependents. One advantage of this option is that it provides a uniform approach for all persons in Namibia. but should claim maintenance from the estate if necessary. based on their reasonable maintenance needs. whilst still providing an avenue to respect the different customs of different communities. Dependents should be defined broadly to include the surviving spouse and children. be necessary to qualify such an approach by stating in the law that no discriminatory rules of customary law will be enforced by the state.32
Customary law of Inheritance in Namibia (2009) Gender center 31 Ibid 32 Ibid
Research & Advocacy Project.
any notion of customary law as a static system which must be “preserved” reflects a misunderstanding of the nature of customary law.
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.33 The proposed law should make property grabbing a criminal offence with stiff penalties. and provide restitution or compensation for the victim. be made applicable to all estates. Namibia gave the same recognition to these laws as that accorded to common law.In the definition of „surviving spouse it is recommended that the term „surviving spouse‟ be defined broadly to include surviving partners in long-standing informal relationships and surviving partners in past or future polygamous marriages. Thus. Article 66 of the Constitution makes Namibia a hybrid legal system governed by legal pluralism. 6. The Master‟s Office should be decentralized. Thus. CONCLUSION The majority of indigenous Namibians still live in accordance with their customary laws. and that the Administration of Estates Act 66 of 1965. dynamic system which is constantly changing and evolving in response to a wide variety of internal needs and external influences. appropriately amended. Continued change and evolution in response to the influence of the new constitutional regime of a democratic and independent Namibia would not violate the fundamental nature of customary law. Customary law is a complex.
1999. Bennett. J Ubink 2011 Towards Customary Legal Empowerment in Namibia . 58. Development and perspective (Eighth Edition). Hinz.).Enhancing gender equality in customary justice systems 1 Page 15 of 16
. Cape Town: Juta & Co. In Ruppel. 2003.
Hinz. Windhoek: MGECW. MO. “Strengthening women’s rights: The need to address the gap between customary and statutory law in Namibia”. Human rights and African customary law. MGECW/Ministry of Gender Equality and Child Welfare. P L Shipila “Adoption: Statutory and customary law aspects from a Namibian perspective” 2010 S v Sipula 1994 NR 41 (HC). Customary law in South Africa. 1: The Draft Child Care and Protection Act: Issues for public debate. Windhoek: Macmillan Namibia. Booklet No. 2008. Customary law in Namibia. 2004. April 2009. Windhoek: Centre for Applied Social Sciences. TW. OC (Ed. Draft Child Care and Protection Bill. TW. p 93–106 MO Hinz 2010 Traditional governance and African customary law: Comparative observations from a Namibian Perspective 1
Proposals for law reform on the recognition of customary marriages” Legal Assistance Centre 1999 O C Ruppel. MO. MGECW/Ministry of Gender Equality and Child Welfare. Lansdowne: Juta & Co.REFERENCES
Bennett. Women and custom in Namibia: Cultural practice versus gender equality?. Windhoek: MGECW. 2009b. 2009a.
4. 3. 14 .The Namibian Constitution Article. 144 .66.
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