Windhoek-Justice Minister Albert Kawana has said the report by the Law Reform and Development Commission (LRDC) on marriages entered into in the northern communal areas (NCAs) is receiving “undivided” attention. Currently all people who get married in the NCAs enter into marriage out of community of property.
This is due to the Native Administration Proclamation of 1928, which dictates that all civil marriages between black people north of the old police demarcation zone, also known as the area beyond the ‘Red Line’, are automatically outside community of property, unless another arrangement was made with the marriage officer before the marriage took place.
The LRDC now aims to change that law. On May 30, 2014, the LRDC, in terms of the Law Reform and Development Commission Act of 1991 submitted a report to
Justice Minister Kawana on the repeal of obsolete and redundant apartheid era laws, that included a proposal to replace the infamous ‘Red Line’ law, or Native Administration Proclamation 15 of 1928, with a new matrimonial legal framework.
Kawana on Thursday told Members of Parliament in the National Assembly that Cabinet already granted approval in principle for the Justice Ministry to devise new legislation to address the anomaly. His comments came after DTA MP Jennifer van der Heever asked what actions, if any, the Ministry of Justice had taken following receipt of the LRDC report.
“Why is it that despite the recommendations from this report you still find that today, 27 years after independence, property and marital regimes differ depending on whether one is from Rehoboth, south of the Red Line or north of the Red Line?
“Are there currently any ongoing initiatives to respond to the recommendations of this report and bring about Namibian laws, instead of continuing to rely on apartheid era laws, which continue to make it difficult for Namibians to own, buy and register land – both urban and communal?” van der Heever asked.
Kawana responded that the report was receiving the “undivided attention” of the government, saying some aspects of the report, such as what is termed as “Red Line marriages” were receiving particular attention. Further, he said the Cabinet Committee on Legislation – which he chairs – has discussed the Bill.
“The law resorts under the Ministry of Home Affairs and Immigration and last month the ministry had a workshop with a view to consulting further on the subject matter. Although I cannot speak on behalf of the Ministry of Home Affairs and Immigration, I am hopeful that a Bill will be tabled in parliament soon,” he noted.
He reported that other aspects of the report were also receiving attention, saying when he took office in 2015, he instructed the LRDC to cover a wider area, which they are currently busy doing. He said he had no doubt that by the end of this year he will receive a comprehensive report from the LRDC before further action is taken.
Prior to independence, Namibia was divided into different administrative regions. Since 1950, marriages north of the Red Line between black Namibians were by default out of community of property, unless the couple agreed to another property regime before the wedding.
But the situation is different south of the Red Line, where everyone is automatically married in community of property, unless they reach an alternative agreement before the wedding. But if one lived north of the old police zone, in the areas formerly known as Owamboland, Kavango and Caprivi, marriages that took place between Africans on or after 1 August 1950 were out of community of property. However, once the old law is repealed this will make the default system of marriage in community of property apply to everyone in Namibia.
Historic evidence suggests that the reasoning behind the law was based on a concern that “native” men, who entered into civil marriages in these areas, were likely to be parties to a customary union at the same time, thus if the civil marriage was out of community of property this kept the husband’s property separate, so that some of it would go to the customary wife or wives.
During a courtesy visit to President Hage Geingob recently, LRDC chairperson Yvonne Dausab said ‘Red Line marriages’ were a serious concern raised by Namibians during the president’s town hall meetings last year.
Once the new law is promulgated people who got married before 1990 will have an opportunity to change their matrimonial status to the property regime and status they prefer.