Rihupisa Kandando, Ph.D
There is a view in the public discourse asserting that the Traditional Authorities Act (Act 25 of 2000) makes only an exclusive provision for chieftainship, and usage of terminologies such as paramount chief (Ombara Otjitambi), queen, king, kaptein are not recognised, thus are not permissible under the law. The purpose of this opinion piece is to contribute to that national debate.
I respectfully submit that such assertion is premised on wrong interpretation of the law if due regard is given to the provisions of the Namibian Constitution, Traditional Authorities Act (Act 25 of 2000), Annexure A of the same Act, and recognition in the government gazette that emanates from section 6 of the Act.
It is imperative to take note of the fact that article 66 of the Namibian Constitution recognises customary law and application thereof is permissible provided it is not in conflict with the constitution and other applicable laws.
Pursuant to that constitutional provision, an Act of Parliament (Traditional Authorities Act No. 25 of 2000) was promulgated, and section 6(1) of the Act in particular makes dual title recognition, notably statutory title and traditional title. Furthermore, legal mandate to use traditional titles for instance such as Ombara, Ombara Otjitambi, Ohamba, Kaptein is permitted under section 11 of the Act. For the sake of brevity it reads as follows:
“Nothing in this Act contained shall be construed as precluding the members of a traditional community from addressing a traditional leader by the traditional title accorded to that office, but such traditional title shall not derogate from, or add to, the status, powers, duties and functions associated with the office of a traditional leader as provided for in this Act.”
In fulfilment of that provision, the application form (Annexure A to the Act) under number 6 requires details of traditional title, if any, to be furnished. Once these details are given, recognition made in the government gazette in terms of section 6 of the Act includes these details, both the statutory title and traditional title.
Despite this bold, unambiguous, loud and clear compliance of the government to both constitutional and statutory provisions to which commendation and credit in all fairness must be given, government is depicting ambivalence by succumbing to the pressures of the reactionary, myopic and illogical view that cannot factually and legally be sustained that says “we don’t have kingdoms in Namibia, we only and exclusively recognise chiefs and no other things”. It is ironic that traditional leaders are recognised in both statutory and traditional terms in the gazette, but then after recognition ‘environmental adaptation politics’ come into the equation on account of pressures being exerted on our government by a section of our own people.
It must also be emphatically stated that the licences of legitimacy and existence of traditional communities and leaderships thereof are derived both from the constitution in terms of articles 66 and 103 (the latter that makes provision for the establishment of the Council of Traditional Leaders) and are not necessarily at the mercy of the executive arm of the State which in any event is also a creature of the constitution. Period!
I respectfully submit that in the event that two different schools of thought are ascertained to exist, then it is advisable for our government to subject the matter to legal interpretation by courts and to settle the matter once and for all.
I believe that it was the intention of our legislators to use the words “Chief/Headman” in generic terms, taking into account the diversity and plurality of our traditional communities’ leadership structures. I submit this generic usage of chieftainship for the sake of convenience was reciprocated with the recognition of the traditional title to be constitutionally compliant and not to act unconstitutionally.
I submit, under the circumstances, that legislators were correct to use generic terminology, and executives are correct to apply laws as they are unless there is contestation to the legal interpretation. I submit that the refusal of some of our traditional communities to apply for recognition on the basis that the Act does not make provision for their traditional designation or title is premised on either ignorance or wrong legal interpretation, and I advise that they revisit the matter. I submit that usage of terminology such as chief when it is also accompanied by traditional title is appropriate.