Fumu Erwin Mbambo Munika has been a Chief of the Hambukushu Traditional Authority since 1992. By virtue of his office, he has been a member of the Traditional Council in terms of the Traditional Council Act of 1997.
The Traditional Authorities Act of 1995 which has now been repealed by the Traditional Authorities Act of 2000 (“TAA”) passed by parliament in 2000 found him in the office. Section 8 of the Traditional Authorities Act titled removal and succession of a chief or head of a traditional authority from office governs this issue. It provides that “if there is sufficient reason to warrant the removal of a chief or head of a traditional community from office, such chief or head may be removed from office by the members of his or her traditional community in accordance with the customary law of that community”.
The attempt to oust the Hambukushu Traditional Authority chief by a group of individuals constitutes a breach of Section 8, which provides that a chief can only be removed according to that traditional community’s customary laws by members of that traditional community and for a valid cause. Here is why? The impugned provision has not been complied with. Three aspects or requirements can be derived from Section 8. The first one is “if there is sufficient reason to warrant the removal”. The second one is removal by his or her members of the traditional community. The last requirement refers to removal in accordance with customary laws of that community.
Let’s analyse these requirements closely. The first one says “if there is sufficient reason to warrant removal”. Sufficient reason is not defined in the Act, but the ordinary grammatical meaning of the word “sufficient”, according to Cambridge dictionary, is “enough for a particular purpose”. It means the reason for removal must be enough. It begs the question: is there a reason enough or are there enough reasons to remove the chief? However, the Traditional Authority Act does not specify grounds for removal (an aspect the legislature might want to consider in the near future to avoid vagueness on this aspect of the law). According to the Hambukushu traditional community customary laws, a chief can be removed only on one or more of the following: (a) on conviction of a criminal offence with a sentence of imprisonment without an option of a fine; (b) physical incapacity (c) or mental infirmity which, based on acceptable medical evidence, makes it impossible for that chief to function as such; on the grounds of (d) wrongful appointment or recognition; or (e) a transgression of a customary rule or principle that warrants removal. This position is the same in neighbouring countries like Botswana, South Africa, Lesotho and Zimbabwe.
We might want to consider the following questions? Has the Hambukushu traditional community chief been convicted of a criminal offence, is the chief physically or mentally incapacitated? Was the chief wrongfully appointed or recognised? Has the chief contravened customary laws or has the chief been refusing to be carrying out lawful orders? Has the chief abused his powers? It follows that the reason for the intended removal of the chief is not sufficient. The reason raised here is a developmental issue. Developmental issue is a government policy issue and not for 10 people to direct the chief on. There is therefore no substantive fairness in the intended removal of the chief at this stage.
The second requirement is that a chief must be removed by members of his or her traditional community. In this case, it will be the Hambukushu traditional community members. The Hambukushu traditional community is comprised of plus minus 10 0000 individuals. The persons who want to remove the chief are ten. In simple arithmetic this number constitutes only 0.1% of the traditional community members. It means that 99.9% do not want the chief to be removed. Can the 0.1% constitute a significant number as members of the traditional community of the Hambukushu to be a mouthpiece for the Hambukushu traditional community as wanting to remove the chief? In my opinion, not. That was not the intention of the legislature. By members, it can be construed to mean members should represent a significant number, not a drop in the ocean, that will be absurd. With regard to the members of the traditional community, it is important to highlight that a traditional community is defined in Section 1 of the Traditional Authorities Act as indigenous, homogeneous, endogamous social grouping of persons comprising families deriving from exogamous clans, which share a common ancestry, language, cultural heritage, customs and traditions, who recognise a common traditional authority and inhabit a communal area and may include the members of that traditional community residing outside the common communal area. By virtue of this definition, white people, other tribes, such as Kwangalis, Gcirickus, Nyembas and any other tribe do not fit in the definition as members of the Hamubukushu traditional community as they do not share common ancestry, language, cultural heritage, customs and traditions. Certain quarters including white people who are used to carry out elections or ballot on to oust a chief cannot do this in terms of the law. They cannot even have a say in that. The third requirement envisaged in Section 8 of the Traditional Authorities Act is that the removal of a chief must be in accordance with the traditional laws of that community. In essence, the removal of a chief must be done in accordance with the prevailing culture, customs, traditions and practices of the the traditional community concerned, in this case the Hambukushu traditional community. The Hambukushu traditional community customary law does not permit a chief to be removed or elected through ballot papers. A traditional community chief is not a political party.
The traditional laws of the Hambukushu traditional community are not codified. It is neither in the Traditional Authorities Act, nor in the Community Courts Act or any other act in Namibia for that matter. Legend has it that the succession or removal of a chief in the Hambukushu traditional community must be done in accordance with customary laws.
Lastly, the removal of a chief must in terms of Section 8 of the Traditional Authorities Act be aligned with the new constitutional order adopted in 1990. That means the provisions of fair trial in Article 12 dealing with civil rights and administrative justice in Article 18 of the Constitution must be complied with. Read together these provisions of the Constitution cement the rules of natural justice, which requires substantive and procedural fairness.
Benhard Tjatjara
Law lecturer at Namibia University of Science and Technology
Windhoek