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“Area of jurisdiction” remains a grey area

2018-12-21  Kae Matundu-Tjiparuro

“Area of jurisdiction” remains a grey area
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The closest perhaps that the Traditional Authorities Act of 2000 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 in Section 5 (b) (ii) refers to “the communal area inhabited by that community”. 

But can this really be interpreted to necessarily mean 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 a traditional community by the Act itself, understands it and even interprets it most loosely. “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 recognizes a common traditional authority and inhabits a communal area, and may include the members of that traditional community residing outside the common communal area,” the Act reads.

 This Act, especially in the last part hereof, 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 Constitutional provision, of freedom, for anyone to live wherever he/she wishes within the borders of Namibia. One still also has 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 his/her democratic choice, and as this may guide and dictates her/him. 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 government officials, especially policy makers and implementers, that such “jurisdiction” has reference to “area”. But such a reference in the Act, to say the least, is non-existent. 

Section (2) (d) of the Act refers to the functions of a traditional authority, and in what may also be interpreted to mean area of “jurisdiction”, looking at the provision in the Act for 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 recognized or appointed or elected”. The latter provision is obviously consonant and cognizant of the right of any member of any traditional community/authority, especially those residing outside a specific communal area, and thus outside its presumed “area of jurisdiction” to continue to enjoy and practice her/his culture wherever she may be. Including associating with any other traditional community and/or authority, if she/he so wishes and without any hindrance or without being disowned and alienated by her/his ancestral traditional community/authority.   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 practice 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 typical “area of jurisdiction.” This could simply mean the physical address of any traditional community or authority that has been interpreted and mistaken for denoting its area of jurisdiction. This is simple for ease of contact and liaison more than anything else if one dares to read the Act meticulously.  

2018-12-21  Kae Matundu-Tjiparuro

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