- April 14, 2023
- |Law Everyday
Customary law is the unwritten portion of the law that is applied orally by traditional communities and passed down through generations; it is dynamic and changes depending on a society’s socio-economic, political, and cultural contexts. Customary law is defined by Section 1 of the Traditional Authorities Act 25 of 2000 as the norms, rules of procedure, customs, and usages of a traditional community insofar as they are not in conflict with the Namibian Constitution or any other written law valid in Namibia. Customary law in Namibia refers to the laws and practices that have developed among the different ethnic groups in the country. These laws cover a wide range of issues, including marriage, inheritance, land tenure, and dispute resolution. Customary law is deeply rooted in the culture and history of the Namibian people and is often seen as an essential aspect of their identity and way of life.
Namibia is a country in Southern Africa with a rich cultural heritage. The Namibian people have been living in the region for thousands of years, developing unique customary laws and traditions that have shaped their way of life. One wonders, are these laws and traditions facing an existential threat and may be on the verge of extinction in the next 50 years? How is customary law faring, 33 years after independence? Has it thrived or has it faded under the new constitutional dispensation? In this article, we pose these questions with the view of instigating a conversation; we briefly address them and cast the burden on the reader to critically think, and come to their own conclusions, based on their own experiences and observations.
In respect of the new constitutional dispensation, Article 66 of the Constitution provides that the customary law in force on the date of independence shall remain valid to the extent to which such customary law does not conflict with the Constitution or any other statutory law. Subject to the terms of the Constitution, any part of such customary law may be repealed or modified by an Act of Parliament, and the application thereof may be confined to particular parts of Namibia or to particular periods. Article 19 further provides that every person shall be entitled to enjoy, practice, profess, maintain, and promote any culture, language, tradition, or religion subject to the terms of the Constitution and further subject to the condition that the rights protected thereby do not impinge upon the rights of others or the national interest.
With independence came other opportunities which saw a rise in urbanization. More people moved to towns in search of greener pastures and lesser people moved back to their communities to continue living the traditional way. Rural areas have been developed, one way or the other, in ways that may be deemed to subtract from the traditional way of living. As a result, customs, traditions, and culture itself have been blended with aspects of civil society. For example, payment of lobola is no longer restricted to items or livestock but now includes payment in money, in cash, or electronic transfers, (including the popular e-wallets). Given the rate at which the customary laws, customs, and conventions regulating Namibia’s indigenous groups are being replaced by or blended with contemporary aspects of civil society, one can only speculate as to whether customary law, as defined above, will still be in operation in 50 years.
One may argue that the flexibility of customary law will allow it to change as society changes, but how often will that change be given the faster rate at which society changes? After all, customary law is supposed to develop over a long period of time. How the short bouts of changes in society affect this developmental requirement of customary law is, in our view, a threat to the integrity of customary law. Furthermore, who will be keeping track of the changes to determine that a certain trend or way of doing things has crystalized into a custom, norm, or tradition (customary law)? It must be remembered that customary law is mostly unwritten but given these questions, perhaps it will be wise to make it a point that it is reduced to writing in order to record its past, present, and future forms.
From a legal perspective, it is common cause that our legal system is based on Western legal systems and law. The courts and related institutions also take their form from Western countries. However, the Constitution allows customary law to exist, be practiced, and be enforced through the community courts. But can it be said that customary law is really on the same level as common law (and/or other laws) as envisaged in Article 66? Let us look at one case to illustrate something. In Mbaisa v Mbaisa (A 22-2013) [2015] NAHCMD 181 (05 August 2015), the High Court stated the following:
‘[8] Our Namibian law recognizes two types of Marriage, i.e., the civil law marriages and the customary law marriages. The former is solemnized under state law and the consequences flowing therefrom are
enforceable before a court of law and the parties’ duties and obligations are codified by the Married Person’s Equality Act 1 of 1996 (MPEA). Customary marriages, on the other hand, are conducted according to the customary laws of various communities and the consequences flowing therefrom relate to the specific community and thus different from the next community. The obligations of the parties are in terms of the relative customary laws and such marriages are not enforceable before a court of law.
The underlined part above confirms that whereas people are free to enter into customary marriages, they do not enjoy the same rights and protection afforded to civil marriages by civil law. A typical consequence of this is that spouses in customary marriages are considered ‘single’ for purposes of official applications for financial assistance, jobs, or other commercial activities. We submit that this is a threat to customary law which makes it weaker and susceptible to intrusions by the more favourable civil laws. In Mbaisa, the parties were married under their customary law. Their marriage was annulled by the traditional court and the husband (defendant/respondent) was ordered to compensate his wife by paying her 80 head of cattle. When the defendant failed to comply with the order of the traditional court, the wife (complainant/applicant) brought an application before the High Court seeking, among other things, an order declaring the customary marriage/union between applicant and respondent a tacit universal partnership entitling parties thereto equal shares of the customary marriage estate on the dissolution of the marriage/union. The court found that the applicant failed to adduce evidence that the marriage was a partnership, essentially upholding the customary marriage. The point here is that it appears that the applicant sought to resort to a more favourable marital regime than the customary one in which she had been for more than 40 years. Our contention is that this should not be the case. Customary marriages (and customary law in general) should be a self-sufficient marital regime of choice just like any other legally recognized regime.
Another factor contributing to the decline of customary law is the impact of globalization. Namibia has become increasingly integrated into the global economy, spreading Western values and cultures. This has led to a growing disconnect between traditional practices and modern lifestyles, with many young people seeing traditional practices as outdated and irrelevant. This is the generation to which customary practices must be handed down and it must hand down same to the next generations. It is almost safe to say that the current generation is not properly immersed in customs and practices to be able to pass them on to the next generation. Meanwhile, the current generation is very much in touch with other laws, and this can be observed from the increased activism, which includes human rights advocacy in the areas of LGBTQ, labour and unemployment, governance of natural resources, local authorities, and corruption. Which of these laws is likely to thrive is apparent to us and it is not customary law.
We contend that customary law in Namibia is losing its importance quickly and its survival is almost left to fate, but this should not be the case. One thing became clear during the Covid -19 pandemic: that all the systems and institutions can fail but one – the traditional way of living. When all laws may be suspended during pandemics, customary law will continue to be practiced. When all institutions crumble under the lockdowns and curfews, the traditional basic way of living (subsistence farming) becomes the option. Customary law is linked to the traditional way of living, and it was proved to be the default position when all else failed. Therefore, as we prepare for the next uncertain disruptive force of nature, let us ensure that our customary law and traditional ways of living are formalized enough to see us through. For there is no society that can thrive without law, even during pandemics.
In conclusion, the decline of customary law in Namibia is a significant concern, as it risks erasing an essential aspect of the country’s cultural heritage. As stated above, among the things we can take from the Covid-19 pandemic is the fact that when all systems fail, the traditional way of living will stand. Therefore, unless urgent measures are taken to preserve and promote traditional practices, there is a high likelihood that they will disappear entirely within the next 50 years. It is crucial that the Namibian government takes steps to support and promote traditional practices, including providing education and training to young people and creating an enabling environment for the continued practice of customary law.
Fedden Mainga Mukwata – Legal Pundit
Unomasa Uanivi – 3rd Year Law Student, Unam
Anthens Mutabelezi – 3rd Year Law Student, Unam