President Hifikepunye Pohamba at a recently concluded meeting of the Council of Traditional Leaders expressed a concern at a pace of intra- and inter-communities’ proliferation and gave an assignment to our traditional leaders to provide solution to such state of affairs.
I am neither a traditional leader nor expert to talk with absolute certainty, yet, I am mindful of the deliberations and subsequent enactment of our constitutional law on 9 February 1990 that drafters, conscious of the long decades of balkanisation of our country into the 11+ Bantustans by the South African regime, took a decision through a Schedule of the Constitution to arrest the continuation of the colonial ethnic agenda as was irrefutably evidenced by Proclamations on Second Tier Representatives Authorities.
The new democratic constitutional dispensation establishes a sovereign and unitary State of Namibia on the principles of the rule of law, democracy and justice for all, which in terms of Chapter 3 of our Constitution also provides cardinal tenets in which we can advance our cultural values, languages and religions. What are some of the issues contributing to the proliferation?
I have noted with great concern that as from 2010 there has been talk of areas of jurisdiction at the traditional community level as well as at a parliamentary rostrum, a new concept that with due respect I don’t comprehend where it emanates from. I respectfully submit that article 21 of our Constitution provides us with a right to settle and reside in any part of Namibia. Article 19 provides us with a constitutional right to practise our culture and here I must add in any part of Namibia. The Traditional Authority Act (Act 25 of 2000), I respectfully submit, does not have a statutory provision compelling one to have an area of jurisdiction as a basis for recognition apart from indicating one’s administrative office and where one’s subjects are based. One of the anomalies in the Act is the heavy reliance on the communal areas’ residency as a condition precedent for recognition of the traditional communities and authorities, whilst denying urbanites, town villagers and commercial farmers’ the constitutionally guaranteed right which they may wish to exercise. There is a need to provide plausible explanation for such a curtailment if in terms of article 22 of the Constitution such limitation is permissible.
It is submitted that the so-called area of jurisdiction is causing a lot of confusion in our people’s mind let alone that it has no constitutional and statutory basis to stand on. In essence, reliance on such a proposition amounts to providing a re-entry visa of dividing Namibia into ethnic homelands, something we should guard against.
It is not a historical accident, but rather a colonial design orchestrated and engineered with specificity that some sections of our communities were chased away from their ancestral lands in central Namibia into different “reserves” of Namibia through an enactment (proclamation) that emanated from the 1923 Native Commission. The reserves established in this context by the South African occupational regime are still in existence, despite our constitutional entitlement in terms of article 140 of the Constitution to repeal it if we so wish. Schedule 1 of the Communal Land Reform Act (Act No. 5 of 2002) is a testimony in this regard because on closer examination it has designation such as Damaraland, Hereroland, Ovamboland, Bushmanland.
I submit that the issue is not whether areas of jurisdiction have legal basis or not, but to state that we do not have such proviso in the Constitution nor in the statutes. In any event, such a proviso would negate both the constitutional provisions of inter alia freedom of movement, settlement and residing in any part of Namibia, practising of culture in any part of Namibia. It is beyond logic why a small group of the Nama section of our community, if they so wish cannot have a traditional councillor or a chief in an area predominantly dominated for instance by Herero and vice versa and simultaneously be recognized and duly gazetted under their respective traditional authority in a region(s) where their administrative office is based. Such recognition will be in full compliance with constitutional provisions and must therefore be encouraged.
I respectfully submit that most of the confusion leading to the proliferation of our communities emanates from misreading the statutory provisions. As far as I understand, the Traditional Authority Act (Act 25 of 2000) makes provision for recognizing the traditional communities and leadership (which in this case is the authorities). These terms are defined and prescribed. I don’t comprehend why the government should be held hostage to omissions and/or commissions it committed in the past. I respectfully submit that continuation of rendering recognition to entities which are not statutorily prescribed may be one of the factors contributing to the proliferation. I sincerely and humbly wish to be drawn to the relevant clause in the Act where a minister is empowered and mandated to issue recognition to other entities rather than to communities and their respective authorities. I submit it was an unfortunate omission or commissions that paved Namibia to enter the arena of secessionism in traditional affairs. Yet, taxpayers are required to fund clans and their leadership contrary to the statutory provision that requires recognition of traditional communities and traditional authorities as defined in the Act
It is submitted that the Act has a provisional saving or a “grandfather” provision to cater for those who were traditional leaders prior to the commencement of the Act. It is submitted that recognition for such leaders should be approved through Namibian well-known traditional communities instead of secessionist clans and leadership that sometimes masquerade as traditional communities. As a matter of fact, our leniency should not result in the similar events that led to the breaking up of the Great Soviet Socialist Republic.
I am also mindful of the fact that most of the mandate and authority of our traditional leaders to govern, apart from their own customary laws were derived from proclamation of 1928 that provided leadership to the “reserves”. In line with our constitutional provision of article 141 (Existing Appointments), we are duty bound and under obligation to recognise those leaderships unless already revoked or repealed as provided under article 140.
Leadership
I am referring specifically to the groups that were dispossessed and displaced from their original habitat by colonial forces inclusive of the never-forgotten-never-forgiven Von Trotha genocidal atrocities, which by extension contributed to the dispersion of our people all over Namibia and in the diaspora.
The question is: should they all reside and settle in one part of Namibia to have one supreme leader to facilitate compliance with the imaginary area of jurisdiction and be led by one chief as opposed to paramount chief? It is not necessary to have an academic binoculars to understand the primacy of the cultural super structures of our communities as epitomised by king, queen, kaptein, paramount chief etc.
I respectfully submit that it is a rebellion against common sense to accept that the new constitutional order provides us with a right to practise culture in terms of article 19, yet a statutory provision in terms of section 10 of the Traditional Authority Act (Act 25 of 2000), simultaneously relegate the super structures of our culture (paramount chief, king, queen, kaptein) to the level of a chief. The good news is that the Act in terms of section 11 negates section 10 since it allows traditional leaders after they have ‘wined’ and ‘’dined’ with government at Safari Hotel after Council deliberations to call themselves paramount chief, king, queen, kaptein etc as they so wish.
The rationale for proposing harmonising sections 10 and 11 of the Act stems from the fact that some of our communities have “heads” and “necks” (alternatively “paramount chiefs” and “chiefs”) and since the head contains the brain it must not be chopped off because the body may not function well if it is only relying on the neck.
Parliament in an effort to uphold the values of the Constitution may consider amending the Act, firstly to harmonise sections 10 and 11, and secondly to extend the principle of “first among equals” in traditional affairs in conformity with recognition it accords to officials of other state organs such as Chief Justice versus Judge, Prime Minister versus Minister.
Tackling anomalies and proliferation issues demands gesture of goodwill and generosity from all and sundry and does not need accusations and counter-accusations as to who advised or did not advise the legal process that led to the enactment of the two previous pieces of legislation in 1995 and 1997 that preceded Act 25 of 2000. This is a red-hot issue that does not need us to waste time for a simple reason: Cabinet after being advised only bring the Bill to the Legislature which has the sole prerogative of enactment, and therefore apportioning blame to the individual(s) instead of placing the omission to the Parliament, with due respect is incorrect.
• Rihupisa Kandando, Ph.D is an academician, Specialist Clinical Biochemist.