By Kuvee Kangueehi
High Court Judge Collins Parker yesterday reserved judgment on the application for reinstatement of 11 Ovambanderu Traditional Councillors that were expelled by the Ovambanderu Traditional Authority last year.
After listening to submissions from Andrew Corbett and Harold Geier representing the 11 applicants and the Ovambanderu Traditional Authority respectively, Parker reserved his ruling indefinitely and extended the High Court ruling of last year.
Geier, who spoke for the most part of the court proceedings yesterday, said the application is two-fold – the first claim is that the applicants have been demoted or removed or suspended by the traditional authority. Geier submitted that it was impossible to re-instate Erastus Kahuure as a senior chief as there is no such position in the Ovambanderu structure. He added that it is inappropriate for Kahuure to claim a position of senior chief because although he was designated to become a senior chief, he was never formally sworn into that position. Geier added that despite Kahuure never being sworn into the position, he started calling himself a senior chief and never had any vested rights as a senior chief.
“The Traditional Authority Act does not also make provision for a position of senior chief as Nguvauva is the chief.”
Geier further challenged the applicants to provide minutes and record books to prove the existence of the alleged community council which elected Kahuure as a senior chief.
The second application, Geier noted, is for the nullification of the Ovambanderu Constitution. He denied allegations that his client aborted the process of drafting a new constitution and said Chief Munjuku Nguvauva used his prerogative as the Paramount Chief to call for the end of a discussion that had been ongoing for more than 10 years. He said to call for closure, given the long drawn out consultative process, is neither unreasonable nor unfair in the circumstances.
Although admitting that the constituencies were not physically visited as initially envisaged, it should be kept in mind that the task was always subjected to the availability of funds. He noted that his client realised that it would be cheaper to circulate the draft constitution and that was done and thereby enabling ventilation and discussion. He also denied allegations that only a small community of the Ovambanderu accepted the new constitution, charging that the senior traditional councillors for all the Ovambanderu constituencies except for Aminuis, which was represented by their headman, were in attendance.
“Except for the senior traditional councillors, the Commander and Field Marshal of the Green Flag and his deputy were also in attendance as well as the head of the Traditional Court, Peter Nguvauva.”
Geier pointed out that although decisions were not taken by voting as customary in western democracies, the procedures adopted at the different stages were nevertheless fully in accordance with the Ovambanderu customs and traditions.
In conclusion, Geier said Nguvauva executed his executive powers as a chief recognised by the Namibian Government as well as the Ovambanderu community.
Corbett, on the other hand, strongly disputed Geier’s arguments and said Nguvauva does not have the prerogative to cancel the process of drafting the constitution or dismissing the traditional councillors. Corbett argued that prerogatives, according to the legal definition, are powers vested in the head of state such as appointing ministers, granting parole to prisoners or declaring war. He noted that Nguvauva as chief has no such powers as it is clearly stated in the Traditional Authority Act that the actions must be in the interest of the public and they are accountable to the line minister.
The applicants in the matter are Erastus Kahuure, Mburo Mooja, Gebhard Hengari, Barnabas Kandjavera, Okeri Kavitjene, Rehabeam Nguhahe, Borrie Katjiuanjo, Cornelius Tjiroze, Noah Kangueehi, Erastus Karuuombe and Pani Kahorere.
The respondents as indicated in the court papers are The Ovambanderu Traditional Authority, Chief Nguvauva II and the Minister of Regional, Local Government, Housing and Rural Development John Pandeni.
The decision by Parker to reserve judgment disappointed hundreds of the Ovambanderu who came from different parts of the country to witness the court case.