By Kuvee Kangueehi
The Supreme Court of Namibia last Thursday reserved judgement in the appeal lodged by the Ovambanderu Traditional Authority to overrule a previous High Court order by High Court Judge Collins Parkers last year.
Supreme Court judges, Chief Justice Peter Shivute, Acting Judge of Appeal Johan Strydom and Judge Simpson Mtambanengwe after listening to submissions reserved judgment to a date still to be announced.
In his submission to the Supreme Court advocate Dave Smuts who was representing the Ovambanderu Traditional Authority argued that the adoption of a constitution is a deliberate effort. In the process, some people will be satisfied while others will be unhappy.
Smuts argued that in terms of customary law, the word of a Chief is final. Thus, when the late Chief Munjuku II Nguvauva made a ruling to adopt the constitution, he was not being undemocratic but exercising his powers as the custodian of the Ovambanderu Traditional Authority.
He said that the applicants were never denied the opportunity to be part of the constitutional drafting process. Some of the applicants attended a meeting, which later adopted the constitution, but never objected to the adoption of the constitution.
Advocate Andrew Corbett who represented the respondents in this case maintained that the late Chief aborted a process that was to be followed in adopting the constitution and thus acted unreasonably and unfairly.
In his judgment last year, Collins nullified the adoption of the October 1, 2005 constitution and ordered the respondents to pay the legal costs of the applicants.
Delivering the judgment, the High Court judge described the action of the first and second respondents in curtailing the constitution process as a breach of natural justice. Parker said the two respondents acted unreasonably, unfairly and remarked, “An unreasonable decision would always be unfair.”
He noted that the respondents acted in bad faith and their action could not be entertained both in customary law and statute law. He added that given this decision, anything done, purportedly done or deemed to have been done under the so-called October 1, 2005 constitution, is null and avoid.
The respondents 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 appellants indicated in the court papers are: The Ovambanderu Traditional Authority, Chief Nguvauva II and the Minister of Regional and Local Government, Rural and Urban Development.