Customary Laws in Namibia that should be maintained in the Independent Namibia

University of Namibia

Customary law I

Lecturer: P Anyolo

BJuris Part Time

4 / 2 5 / 2 0 1 2

Jaime Smith 200203045

In this paper four traditional customary cultures or laws

have been identified that could be re-examined and

better integrated and adopted into our independent

Namibia. These customary laws will be the recognition

or better appreciation for traditional marriages as well as

polygamy on grounds of statutory law, the

acknowledgement of the adoption processes of a child

under customary law, as well as better recognition of a

duel system for inheritance under customary law.

1. INTRODUCTION

The prominence of customary justice systems has often been regarded as incompatible with the

modern nation-state and therefore as something to be discouraged or ignored rather than

strengthened or engaged with.1 However, a growing body of evidence suggests that poor people

in developing countries have limited access to the formal legal system and that their lives are

largely governed by customary norms and institutions. Figures collected by development

cooperation departments in Britain and Denmark indicate that in some countries up to 80 percent

of the population lives under customary justice systems and has little to no contact with state

law.2 These figures are corroborated by findings from academics studying African law, showing

that customary law governs the daily lives of more than three quarters of the populations of most

African countries and up to 90 percent of cases in Nigeria are settled by customary courts. Poor

people‘s use of customary justice systems may reflect the limited access to and weakness of the

formal justice systems rather than an active choice for customary systems based on their

satisfaction with these systems3

This can be explained on the one hand by choice, in cases where local people select customary

legal institutions over state institutions for their positive attributes, such as knowledge of local

affairs, accessibility and affordability. On the other hand, it can be explained by necessity, in

localities and cases where limited penetration of state institutions or lack of access to these

institutions is combined with strong or at least stronger local presence of customary institutions.

1 J Ubink 2011 Towards Customary Legal Empowerment in Namibia - Enhancing gender equality in customary justice systems 12 Ibid 23 Ibid (footnote 1)

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There are rules, which traditional authorities submit as having been in place incessantly, but are

nevertheless results of recent legislative actions. That recent legislative acts are said to be in

existence for long is only a contradiction for those who do not understand the operation of

tradition as a socio-political. As such, tradition can marry recent enactments with so-called

tradition is said to be in existence since time immemorial, as long as the enactments of today find

their foundation in that tradition.4 Thus it is evident that customary law that has been the

cornerstone of most of the populations of Namibia be incorporated into the independent Namibia

for both practicality and fundamental reasons as described above.

Article 665 specifically states that both the customary law and the common law in force on the

date of independence shall remain valid only to the extent that they do not conflict with the

Constitution, subject to the caveat in Article 140 that all such laws remain in force until repealed,

amended or declared unconstitutional by a competent court.6 The Constitutional position has

been reinforced by Traditional Authorities Act 17 of 1995, which emphasizes that customary law

is valid only to the extent that it is consistent with the Constitution and with other statutory law,

making explicit mention of the invalidity of discriminatory customary law7. Section 11 of this

Act states that--(a) any custom, tradition, practice or usage which is discriminatory or which

detracts from or violates the rights of any person as guaranteed by the Constitution or any other

statutory law, or which prejudices the national interest, shall cease to apply; (b) any customary

law which is inconsistent with the provisions of the Constitution or any other statutory law, shall

be invalid to the extent of inconsistency. Article 22 of the Namibian Constitution, which

discusses limitations upon fundamental rights and freedoms, applies only where such a limitation

4 MO Hinz 2010 Traditional governance and African customary law: Comparative observations from a NamibianPerspective 15 Namibian Constitution, Article 146 S v Sipula 1994 NR 41 (HC).7 Namibian Constitution, Article 14(1); CEDAW, Article 16(1)(a).

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is authorized elsewhere in terms of the Constitution. It does not constitute an independent basis

for limitation as discussed in the case of Julius v Commanding Officer Windhoek Prison 1996

NR 390 (HC) at 393D.

In this paper four traditional customary cultures or laws have been identified that could be re-

examined and better integrated and adopted into our independent Namibia. These customary

laws will be the recognition or better appreciation for traditional marriages as well as polygamy

on grounds of statutory law, the acknowledgement of the adoption processes of a child under

customary law, as well as better recognition of a duel system for inheritance under customary

law.

2. TRADITIONAL MARRIAGES

Although the term “marriage” is not defined anywhere in the Constitution, the entitlement in

Article 19 to “enjoy, practice, profess, maintain and promote” any individual culture lends

credence to an all-inclusive interpretation of “marriage”.8 The restatement of the right to

religious and cultural freedom in Article 21(c) reinforces the idea that no distinction between

types of marriages was intended in Article 14. Furthermore, Article 14(3) makes the policy

statement that families are “the natural and fundamental group unit of society”, and it would

seem very odd indeed if family relationships created by customary marriage were not intended to

be included among these fundamental units. The drafters of the Constitution make specific

reference to customary marriages in respect of citizenship in Articles 4(3)(b) and with reference

to the prohibitions on spousal testimony in Article 12(1)(f). In both of these provisions,

customary marriage is explicitly placed on an equal footing with any other marriage. 7 One might

therefore ask why there was no similarly explicit inclusion of customary marriage in the other

8 Ibid Article 19

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constitutional references to marriage. However, on balance, the overarching context of the

Constitution, with its explicit recognition of customary law, argues in favor of reading the

general references to “marriage” as including both civil and customary marriage. This means that

the provisions on sexual equality in all aspects of marriage are applicable to both civil and

customary marriage in Namibia.

RECOMMENDATIONS

Make the registration of customary marriages mandatory, but with no penalty for failure to

register. Recognize unregistered customary marriages as being valid for the same purposes as

registered marriages. Use the advantages of certainty and proof as inducements to register.9

There should be a minimum age of 18 which is applicable to all marriages, with persons below

that age being able to marry only with the consent of an appropriate state official. The free

consent of both intending spouses should be required, in accordance with the Namibian

Constitution. The existing law on parental consent for minors should be retained, with safeguards

such as those provided by the Marriage Act for civil marriages.10 The law should require

generally that the marriage be entered into and celebrated in accordance with the relevant

custom, but it should not attempt to be more specific. Prohibited degrees of relationship for

customary marriages should be determined in accordance with customary law rather than being

prescribed in the statute. There should be no reference to “bride wealth” in the statute, although

the transfer of bride wealth might continue outside the legal framework.11

9 “Proposals for law reform on the recognition of customary marriages” Legal Assistance Centre 199910 Ibid11 Ibid

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Allow the property regime of customary marriages to continue to be determined in accordance

with custom, until such time as there is universal law reform on marital property regimes. Give

couples greater freedom of choice immediately by allowing them to register ante-nuptial

agreements in respect of customary marriages. Protect women against unfair discrimination in

respect of marital property by making it possible for either spouse in a customary marriage to ask

a court for a settlement of certain property interests during the course of the marriage or at its

dissolution, along the lines of the provisions applicable to civil marriages in the Married Persons

Equality Act.12

With regards to equal rights and powers of spouses: the Age of Majority Act should be made

explicitly applicable to all women. Give husbands and wives in customary marriage full status

and capacity on a basis of equality, including equal capacity to acquire and dispose of property,

to enter into contracts and to bring legal actions in customary or general law forums. Make the

grounds and procedures for divorce identical for all marriages in a new divorce law which

establishes new, more modern grounds for divorce and makes divorce proceedings more

accessible, particularly to those in rural areas.

3. POLYGAMY

Some of the cultures in Namibia recognize and indulge in polygynous marriages for the man or

husband. This has posed various problems to the “wives” of the man in situations such as

inheritance and illegitimate children, before the Children Inheritance Act was made legislation.

12 Married Person Equality Act

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RECOMMENDATIONS

Recognize polygynous customary marriages as valid marriages in order to protect the rights of

the vulnerable parties to such marriages and the social and legal status of the children of the

marriage.

Make the subsistence of a registered civil marriage an absolute bar to a subsequent customary

marriage with a different woman, and forbid civil marriage if there is a subsisting customary

marriage with a different woman. But allow couples who marry each other in terms of both

church and customary rites to choose the form in which they will register their marriage – as a

ponogamous civil marriage acknowledged by the performance of customary rites, or as a

potentially polygynous customary marriage blessed by the church (if the church is willing to do

so).

In order to safeguard parties to polygynous marriages it should be required to obtain the consent

of any existing wives to a subsequent customary marriage by the husband. Require the formation

of an agreement for the equitable distribution of marital property amongst all the interested

parties before allowing the registration of the subsequent customary marriage.13

4. ADOPTION UNDER CUSTOMARY LAW

Article 14(3) of the Namibian Constitution states that the family is the “natural and fundamental group unit of

society and is entitled to protection by society and the State”. Article 15 of the Constitution provides that

children shall have the right from birth to a name, the right to acquire a nationality and, subject to

legislation enacted in the best interests of children, as far as possible the right to know and be

cared for by their parents. In addition to these provisions, Article 144 of the Namibian Constitution reads as

13 Proposals for law reform on the recognition of customary marriages” Legal Assistance Centre 1999

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follows: Unless otherwise provided by this Constitution or Act of Parliament, the general rules of

public international law and international agreements binding upon Namibia under this

Constitution shall form part of the law of Namibia.14

Namibia has ratified some of the international agreements on child welfare and is bound to enact

legislation that adequately safeguards the welfare of children.1 In particular, Namibia is a

signatory to the Convention on the Rights of the Child (CRC). Article 20 therein provides that,

for the best interests of a child to be cared for and protected, such care and protection includes

adoption or if necessary, placement in suitable institutions for the care of such children.15

There are an estimated 80 adoptions per year in Namibia, and 14,000 children were estimated to

be in foster care as at February 2009.16 There are 250,000 registered orphans and other

vulnerable children (OVC) in Namibia.17 These figures indicate that the rate of adoption in

Namibia is far lower than that in other parts of the world. The reason for this lies in the plurality

of the Namibian law and in the different perceptions of each type of law when it comes to

adoption.

In spite of significant difference to the statutory law, the term adoption can also be applied to a

related institution in customary law.18 For example, foster care, which in Africa is common

practice, is similar to adoption in the sense that a child is placed from one family into the other.

However, unlike adoption, foster care is not necessarily permanent. Under customary law, foster

care arrangements are actually so common that they are not in any sense formal, bearing little or

even no legal implications. In most cases of foster care, there is the intention that the child will

14 Namibian Constitution Article 14 (3)15 Goran & Alfredson (1997:279)16 MGECW (2009a).17MGECW (2009b:58). 18 Hinz (2003:9)

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eventually return to his or her own parents, so there is no severing of relationships with the

biological family.19 The child retains his or her original legal status, family name, and rights and

duties acquired at birth, and acquire no legal rights in the home of the foster parent. Conversely,

the foster parent has no legal rights or duties towards the child under customary law. Under

statutory adoption, the adoptive parents take the place of the biological parents. It is as though,

by operation of law, that the ‘new’ parents become the ‘real’ parents of the child. Under

customary law, although the ‘adoptive parents’ assume the role of primary caregivers, strictly

speaking, they do not become the parents of the child. Of course, this has legal consequences for

the child. In terms of statutory adoption, children who have been formally adopted in accordance

with the Children’s Act inherit from their adoptive parents in the same way as biological children

do. The situation is quite different under customary law, however. Under the latter system, it is

argued that children belong to their parents (especially to their mothers); therefore, they should

not be allowed to inherit from their ‘adoptive’ parents.

In more modern times it has also been argued that allowing informally adopted children to

inherit from their adoptive parents appears to condone and, indeed, promote informal adoption,

which could sometimes be detrimental to the child. Instances where adoption under customary

law is not in the best interest of the child have become more rampant. For example, they can be

seen where a child whose biological parents are deceased is adopted (informally) by another

family member whose intention is really to use the child as a token through which to receive the

social grant that the Government gives for OVC. In some cases, these grants do not reach the

child, but end up in their supposed caregiver’s pockets. Moreover, in the past, the nature of the

extended family was such that it was possible to absorb all OVC, but now there are simply too

19 Bennett (2004:319)

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many. The result is an extremely fluid environment that leaves children more vulnerable to being

sent from pillar to post, with no one really taking responsibility for them. Conversely, the

extended family set-up is an integral part of Namibia’s societal structure, and it has become the

norm that, when one passes on, one’s children are left to one’s closest relatives. This is what is

known as kinship care, that is, the full-time care of a child by a relative or another member of the

extended family (or even by a close family friend). Kinship care is often informal and

unregulated by the state.

One may be of the opinion that adoption under customary law brings about a considerable degree

of uncertainty.35 In addition to that it has, for example, long been uncertain whether statutory

provisions governing the procedure and effect of adoption override customary law. However, in

the South African case of Kewana v Santam Insurance Co. Ltd,20 it was held that the Children’s

Act of 1960 – which still governs adoption in Namibia today – did not affect customary law.36

In this case, an unmarried woman had assumed full responsibility for a related child and had

marked the occasion by slaughtering a sheep and a goat. The court found that this ceremony

constituted a valid adoption under customary law.21As becomes clear from the case, in customary

law ‘adoption’ is a private arrangement. The child in question is usually the offspring of one’s

kin. Nevertheless, children given up for adoption become the adoptive parent’s child in as far as

the formalities under customary law are observed. Another related issue is that, if payment is

made to compensate the natural parents for rearing the child, it raises the question of whether or

not customary adoption infringes on the prohibition on trafficking in children. After all, it is

important to note that, on the one hand, the traditional African value system still focuses on the

interests of the family group or household, and treats the child as a member of that household; in

20 1993 (4) SA 771 (TkA), at 776.21Bennett (2004:320).

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such cases, the individual child’s interests are often subsumed under those of the family or

household as an integral part of the social structure.

On the other hand, customary law affects children in the context of the shift from a small scale,

largely rural and communal society to an urban, industrialized and individualistic society. This

shift in the social order has been accompanied by the dislocation of the extended family and

corresponding shrinkage of the network of kin available for the care and protection of a child.

RECOMMENDATIONS

It should be the legislators’ aim to ensure a balance between the ideal that the child should, as far

as possible, be kept within his/her community of origin, and the ideal that a child should grow up

in a loving, stable and permanent family environment instead of an institution. Therefore, a

workable adoption policy for Namibia should provide that, before a Namibian child is adopted

abroad, it must have been impossible to place the child in an adoptive home domestically within

the given time frame, despite having made all the required efforts, within reason, to do so. 22 As

stated earlier, Namibia is not yet a signatory to the Hague Convention on Inter-country

Adoption.23 The principal purpose of this Convention is for signatory states – to establish

safeguards to ensure that inter-country adoptions take place in the best interests of the child and

with respect for his or her fundamental rights.24

In order to safeguard children’s rights more effectively, Namibia should strongly consider

acceding to the Convention. In doing so, however, Namibia would be required by Article 4 of the

Convention to establish a central authority dealing with inter-country adoptions. Adoption, be it

22 O C Ruppel, P L Shipila “Adoption: Statutory and customary law aspects from a Namibian perspective” 2010

23 Article 1(a), Hague Convention on Inter-country Adoption.

24 Ibid

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within the family, within the community, within the country, or beyond it, inevitably carries a

variety of risks for the child. Such risks include abuse, exploitation, sale and trafficking.

Therefore, legislation and monitoring measures need to be put in place to curb such

consequences. This requires careful screening and background checks of the adoptive parents in

regard to their criminal record, income tax assessments, occupation history, etc.

Notwithstanding the fact that legal dualism it should also with regard to the issue of adoption,

has value to it, it can also cause legal uncertainty and loopholes. To introduce a sense of

modernity to the legal aspects of adoption in Namibia, the onus will be on the Namibian

Government, and the legislature in particular, to introduce a contemporary law to meet the needs

of its people. This can be made possible by attaching a greater degree of importance and

recognition to the fact that (formal) adoption as we now know it is premised on a Western

ideology where the family consists only of one’s immediate kin, i.e. mother, father and brothers.

But also in the traditional African family structure, laws need to more actively cater for all

notions of caring for children by others, ranging from foster care to adoption and everything in

between.25

5. CUSTOMARY LAW ON INHERITANCE

Unlike succession under common law which is concerned primarily with the transfer of property,

succession under customary law is in addition concerned with the transmission of duties and

debts.26 Under customary law the rules of succession are designed to maintain a particular

bloodline and to transmit a deceased’s rights and duties to a specified member of his or her kin.27

25O C Ruppel, P L Shipila “Adoption: Statutory and customary law aspects from a Namibian perspective” 2010 26 MJ de Waal et al, 2003, Introduction to the Law of Succession (3rd Edition), citing Van der Merwe &Roland, 1990, 1.27 TW Bennett, 2004, Customary Law in South Africa, 334

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Towards this end, customary systems of succession have been described as follows; intestate, in

that individuals are generally not free to decide to whom their estate will devolve. Universal, in

that an heir succeeds to the deceased’s rights as well as duties. Onerous, in that the responsibility

to maintain the deceased’s dependents may not be declined or passed on to another.28

RECOMMENDATIONS

It is recommended by Gender Research & Advocacy Project29 recommend that Namibia’s

approach to inheritance should be to retain a dual system which incorporates the positive aspects

of customary law whilst at the same time ensuring respect for all constitutional rights. As a

practical approach, to ensure equitable economic protection of vulnerable women and children,

we propose transforming some inheritance issues into issues of maintenance. The following is a

summary of the basic approach that they recommend.

The distribution of intestate estates should allow for fragmentation of the estate, to make

provision for inheritance by the surviving spouse(s) and children, and also the primary customary

law heir or heirs (ie the person or persons who would otherwise have enjoyed preference based

on their status within a particular kinship system). The definition of ‘customary law heir(s)’ must

be worded in a broad and general manner to allow for differential application in different kinship

systems. If there is no customary law heir (as in the case of families who do not follow

customary law), then this aspect of the scheme would simply fall away.30 Other potential

beneficiaries to whom the deceased would have owed a duty of support should not be included in

the distribution scheme, but should claim maintenance from the estate if necessary. This wider

28 Ibid29 Customary Laws on Inheritance in Namibia: Summary of key recommendations

30 Customary law of Inheritance in Namibia (2009) Gender Research & Advocacy Project, Legal assistance center

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pool of potential beneficiaries should be eligible to receive portions of the estate as heirs only in

the absence of a surviving spouse and/or children. One advantage of this option is that it provides

a uniform approach for all persons in Namibia, whilst still providing an avenue to respect the

different customs of different communities. It might, however, be necessary to qualify such an

approach by stating in the law that no discriminatory rules of customary law will be enforced by

the state.31

The maintenance from the deceased’s estate should make for dependents, based on their

reasonable maintenance needs, to apply for maintenance within a prescribed period. Maintenance

should be available to all dependents of the deceased whose reasonable maintenance needs are

not adequately provided for by will or in terms of intestate succession rules. Dependents should

be defined broadly to include the surviving spouse and children, as well as any other person who

was actually dependent on the deceased at the time of the deceased’s death. Providing

maintenance for dependents in this way would ensure that the most needy family members are

provided for, and would probably avert many disputes about inheritance.32

In the definition of ‘surviving spouse it is recommended that the term ‘surviving spouse’ be

defined broadly to include surviving partners in long-standing informal relationships and

surviving partners in past or future polygamous marriages.33

The proposed law should make property grabbing a criminal offence with stiff penalties, and

provide restitution or compensation for the victim. The Master’s Office should be decentralized,

and that the Administration of Estates Act 66 of 1965, appropriately amended, be made

applicable to all estates.31 Ibid32 Ibid33 Ibid

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6. CONCLUSION

The majority of indigenous Namibians still live in accordance with their customary laws.

Namibia gave the same recognition to these laws as that accorded to common law. Thus, Article

66 of the Constitution makes Namibia a hybrid legal system governed by legal pluralism.

Customary law is a complex, dynamic system which is constantly changing and evolving in

response to a wide variety of internal needs and external influences. Thus, any notion of

customary law as a static system which must be “preserved” reflects a misunderstanding of the

nature of customary law. Continued change and evolution in response to the influence of the new

constitutional regime of a democratic and independent Namibia would not violate the

fundamental nature of customary law.

REFERENCES

Bennett, TW. 1999. Human rights and African customary law. Cape Town: Juta & Co.

Bennett, TW. 2004. Customary law in South Africa. Lansdowne: Juta & Co.

MGECW/Ministry of Gender Equality and Child Welfare. 2009a. Booklet No. 1: The Draft

Child Care and Protection Act: Issues for public debate. Windhoek: MGECW.

MGECW/Ministry of Gender Equality and Child Welfare. 2009b. Draft Child Care and

Protection Bill, April 2009. 58. Windhoek: MGECW.

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Hinz, MO. 2003. Customary law in Namibia. Development and perspective (Eighth

Edition). Windhoek: Centre for Applied Social Sciences.

Hinz, MO. 2008. “Strengthening women’s rights: The need to address the gap between

customary and statutory law in Namibia”. In Ruppel, OC (Ed.). Women and custom in

Namibia: Cultural practice versus gender equality?. Windhoek: Macmillan Namibia, p

93–106

MO Hinz 2010 Traditional governance and African customary law: Comparative

observations from a Namibian Perspective 1

Proposals for law reform on the recognition of customary marriages” Legal Assistance Centre

1999

O C Ruppel, P L Shipila “Adoption: Statutory and customary law aspects from a Namibian

perspective” 2010

S v Sipula 1994 NR 41 (HC).

J Ubink 2011 Towards Customary Legal Empowerment in Namibia - Enhancing gender equality in customary justice systems 1

The Namibian Constitution Article, 3, 4, 14 ,66, 144 ,

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