New Era correspondent in Katima Mulilo Aron Mushaukwa recently interviewed Ngambela Albius Kamwi at Bukalo, one of the khutas in the Zambezi Region, to share his views on how the khuta operates and some of the challenges faced by traditional authorities.
Ngambela, could you tell us how many indunas are in this court? And how does it function?
We have 12 induna silalos, excluding the natamoyo, the ngambela and the chief. These 12 induna silalos are representatives from 16 areas which fall under our Chief Kisco Maiba Liswani III. These indunas are mandated to bring before the court all the reports and complaints from their areas. For instance, if a person from a particular area has a complaint, that complaint has to be reported first to the induna silalo, and the induna silalo together with that complainant will then bring the case before the court (khuta).
What kind of cases are you mandated to preside over? What is the minimum fine and what is the maximum fine that the khuta can impose?
We preside over all type of cases, except criminal cases, those are for the magistrate. However, there can be an exception only if the complainant decides to withdraw the case and bring it to the traditional court. Maybe that person wants to be compensated as at the magistrate’s court people cannot be compensated. In that regard we can also preside over such a case. The minimum fine starts from N$500 and the maximum fine can go up to N$30 000 (thirty head of cattle) depending on the type of offence.
In the past traditional courts played a crucial role in the community and they were respected. What is the situation like now?
Yes, it is true that traditional courts play a crucial role in the community as we restore peace and harmony in the community, and we give fines to the offenders. That’s how it was in the past and that’s how it’s still now. However, it’s also true that in the past traditional courts were more respected, and now there’s a difference because of the introduction of the constitution. Given that people now have freedom of speech, people no longer respect the traditional court like it was in the past. A person can just say whatever they want against the court, they can even disrespect the court because they have freedom of speech.
What happens to people who do not pay fines imposed by traditional courts? And what is the relationship between this court and the one presided over by a magistrate?
If people do not pay their fines they could be arrested. What happens is that whenever we have a court hearing the court clerk takes notes and the records are sent to Windhoek through the magistrate. And if an individual refuses to pay a fine the magistrate is mandated to write a court order for that person to be arrested. The police do the arrest as we do not arrest people. The traditional court now has two sections, the first one is the traditional court itself where we serve as indunas (traditional councillors) and we deal with cases like land disputes. The second one is the community court where we are referred to as justices and assessors, this is when we assess cases like civil marriages – cases like those we don’t preside over, we just assess them and refer them to the magistrate. The difference is that we are a lower court. We only have justices and assessors, while at the magistrate’s court the magistrate makes the decisions.
How effective is the traditional khuta in terms of meting out justice? And how fair are its judgements? What happens in cases where there is a miscarriage of justice, if there is any?
The khuta is very effective in meting out justice and what the khuta is doing is visible in the community. The court’s judgements are always fair as we always listen to all parties involved before passing our judgement and there is nothing like miscarriage of justice. It is normal for people not to be happy over a certain judgement, particularly if the judgement is not in their favour. And such individuals always have the opportunity to appeal to the magistrate’s court.
What are some of the most common complaints the khuta receives?
Land disputes, witchcraft complaints, marriage disputes and common assaults, those are the most common cases referred to us.
How cooperative is the community – are people always willing to accept the khuta’s ruling and do they always pay the fines that are imposed on them?
I can say there is ninety percent cooperation between the khuta and the community. However, that 10 percent (of non-compliance) is still a problem. Sometimes a person refuses to pay a fine and when we summon them to the court they don’t come, or when they are given a fine they say they don’t have money to pay. We don’t have enough resources to impose our traditional laws. This is attributed to financial difficulties, among others. So cooperation with the community is somehow not one hundred percent.
What are some of the challenges faced by the khuta and how do you resolve them?
One major challenge is that sometimes people refuse to come to court when they are summoned, particularly if a dispute is between people from different tribes. An individual from another tribe would say I cannot be summoned to the khuta of a tribe to which I do not belong. We have however requested the line ministry, the Ministry of Justice, to help us by putting weight on the summons made by traditional courts, so that people may start respecting them. That matter is however still under discussion. Another challenge is people who come and fight in court. Police officers are always present whenever we have a court hearing to assist us whenever fights break out. Another challenge we face is people who are unable to pay fines imposed on them. We however always give ample time for people to pay their fines depending on how they make a living. People who are financially stable might be given a short period of time to pay, while others might be given an extended period.
How do traditional courts work together with state courts and when can a case be referred to the state courts?
Mostly we don’t refer cases, we resolve them ourselves. The only case we refer to the magistrate are cases like civil marriages as we do not preside over those cases. And only if a person is not happy with our judgement can that person be referred to appeal to the magistrate.
In conclusion, what message do you have for the community?
I only want to advise members of the community to respect traditional courts. Traditional courts (khutas) are there for them and they were established for them. They should respect our khutas and help traditional authorities to exercise their duties.