ONE cannot help but wonder what kind of a creature is this creature known as “area of jurisdiction”, which has been a bone of contention between the Ministry of Regional and Local Government, Housing and Rural Development and some traditional authorities, and among the traditional authorities themselves at the point of keeping them under siege?
One has equally been wondering if ever, and when there shall ever come closure to the perception of the area of jurisdiction of these traditional authorities as generally perceived, even by high-ranking officials of the government? This is despite the fact that nowhere in the Traditional Authorities Act is the “area of jurisdiction” of such traditional authorities explicit, visible and traceable. Thus making its existence only implicit and inferential.
The closest perhaps this Act comes to “area of jurisdiction” and something that may be interpreted as perhaps meaning the “area of jurisdiction” of any traditional authority, is where and when the Act speaks in Section 5 (b) (ii) of “the communal area inhabited by that community.”
But can this really be interpreted to mean this is necessarily the “area of jurisdiction” of any traditional community? I beg to differ with such an interpretation and inference, especially if one reads the definition of the traditional community by the Act itself, understands it and even interprets it most loosely. And it reads as follows: “traditional community” means an indigenous, endogamous social grouping of persons comprising of families deriving from exogamous clans which share a common ancestry, language, cultural heritage, customs and traditions, who recognize a common traditional authority and inhabit a communal area, and may include the members of that traditional community residing outside the common communal area.”
The Act especially in the last part herewith, is clear that people outside any communal area can belong to any other traditional authority outside a specific communal area, which may and can be interpreted to be the area of jurisdiction of any specific traditional authority.
This only makes sense in view of the fact that in terms of the Namibian constitutional freedom, for anyone to live wherever he/she wishes within the borders of Namibia, one may, still, also have the liberty and freedom to belong to the traditional community, and thus traditional authority, of his ancestry, or if you wish or her/his choice as democratic choices may dictate.
This is perfectly in line with Section 2 (2) of the Act: “A traditional authority shall in the exercise of its powers, and the execution of its duties and functions, have jurisdiction over members of the traditional community in respect of which it has been established.”
This is the only reference, and I challenge anyone to prove me otherwise, where the Act speaks of “jurisdiction,” and this is contrary to what we generally have been made to believe by especially government officials, especially policy makers and implementers, that such “jurisdiction” has reference or inference to “area.”
But such a reference in the Act, to say the least, is hard to come by if non-existent.
Section (2) (d) of the Act refers to the functions of a traditional authority and in what also may be interpreted to mean “area of jurisdiction,” in lieu of the provision of a member of such a traditional authority “to be ordinarily resident in the communal area of the traditional community which he or she leads.”
But the Act further goes on that “a person not so resident at his or her designation and recognition in terms of this Act, shall not be disqualified to be so designated and recognised or appointed or elected.”
The latter provision is obviously consonant with the definition of a member of such a traditional community including people residing outside a specific communal area. To further amplify the non-existence of the perceived “area of jurisdiction,” of any traditional authority, the Act further provides in section 2(e) to “respect the culture, customs and language of any person who resides within the communal area of that traditional authority, but who is not a member of the traditional community, which such member leads.”
What this means is simply that any traditional authority cannot subject people who are not part of its traditional community to its authority. Conversely, it also means that such members can practise their cultures in any way they deem fit, and this includes them belonging to any other traditional community, and thus traditional authority of their choice.
As much the Act also provides in section 14 (b) that the exercise of the powers or the performance of the duties and functions as referred to in section 3, by a traditional authority or a member thereof “the customary law of a traditional community shall only apply to the members of that traditional community and to any person who is not a member of that traditional community, but who by his or her conduct or consent submits himself or herself to the customary law of that traditional community.”
The other provision in the Act that may have been interpreted as perhaps referring to “area of jurisdiction,” are the requirements a chief designate needs to fulfill when applying for official recognition by the government as provided for in section 5 of the Act. Subsection 1 (b) (v) refers to, among others “office” of the candidate. I would not be surprised that “office” has been taken by many, if not most, to be the atypical “area of jurisdiction.”
This could simply mean the place where she or he could be contacted, a physical or postal address for contact purposes. One is reminded of the recent judgment by High Court Judge, Collins Parker, in the matter of Keharanjo II Nguvauva and the Ministry of Regional Government and others. Herein Judge Parker replicated the provisions of the Act in terms of an application for recognition, citing “communal area inhabited by that community” and “office”, among others with no explicit reference to the said “area of jurisdiction”.
And continues unabated the perceptions and imaginations about the “area of jurisdiction.”