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Abstract
From 2011, Namibia has begun implementing its Community Courts Act of 2003, which formally recognizes Namibia's Traditional Courts and creates linkages between the customary and the state legal system. The Act envisages several procedural changes in the operation of Traditional Courts and this article evaluates whether these changes are likely to empower women to make more effective use of the customary justice system. The article describes and analyzes customary procedures in Traditional Courts in the Kunene, Caprivi and Oshana regions of Namibia. It specifically focuses on three prominent characteristics of customary justice systems: their restorative nature, their flexibility and their gendered impact. The article finds that several procedural aspects form barriers to women's access and participation in Traditional Courts. These aspects include unclear planning and time-consuming procedures, the lack of female councilors, and cultural barriers for women to report cases. The article furthermore shows that customary justice systems’ negotiable and flexible character also forms a likely barrier for women as they often do not have the same knowledge and bargaining power in Traditional Courts as their male counterparts. The article concludes that while the Community Courts Act is likely to impact positively on the administration of justice by the Traditional Courts through the allocation of stronger powers to serve processes, summon witnesses, and enforce decisions, the Act does not address the procedural issues identified as detrimental to women's customary legal empowerment.
Acknowledgements
We would like to thank the Legal Assistance Centre for their essential help with the design, execution and organization of this research. We would like to especially thank Dianne Hubbard, the coordinator of the Gender Research and Advocacy Project of the Legal Assistance Centre, who has helped with the identification of relevant people for interviewing, the organization of the research in the field and who provided helpful input throughout the whole research process.
Notes
1. Accessed 16 November 2014, http://www.customcontested.co.za/laws-and-policies/traditional-courts-bill-tcb/.
2. The Namibian judicial system inherits Roman Dutch elements as well as elements from the African traditional court system. The formal state-administered court system includes the Magistrates’ Court, the High Court and the Supreme Court. The Supreme Court is the highest court of appeal. Article 66(1) of the Constitution – a document drafted and adopted in 1990 and sometimes praised for being one of the most liberal and democratic in the world (Ambunda and Mugadza Citation2009) – provides that the customary law of Namibia remains valid insofar as it is not in conflict with the Constitution or any other law passed by the parliament. The Namibian government has often been praised for recognizing the importance of constructing a system of justice that is close to the people – both socially and geographically (Nakuta and Chipepera Citation2010, 55).
3. Act No. 10 of 2003.
4. Although the CCA uses the term Community Courts to refer to those courts that are formalized by the Act, this article will use the term “traditional court” as this is the term commonly used by traditional court members and traditional authorities in the areas studied.
5. Any Traditional Authority (TA) recognized in accordance with the Traditional Authorities Act, 2000 (Act No. 25 of 2000) that has the jurisdiction to hear and determine civil and/or criminal cases in a certain traditional area may apply for the establishment of a CC or for the recognition of one of its existent TCs as a CC (CCA, Art 2(1) and 3(1)). Art 12: CCs have jurisdiction in any matter relating to any claim recognized by customary law as long as the matter arose in the area of the CC or the person(s) to whom the matter relates are closely connected with the customary law. Customary law is defined as “the customary law, norms, rules of procedure, traditions and usages of a traditional community in so far as they do not conflict with the provisions of the Namibian Constitution or any other statutory law applicable in Namibia” (Art. 1).
6. Interview Ms Nathaniel, Deputy director of the department of customary law, Ministry of Justice, 25 February 2013.
7. A CC may make an order for “compensation, damages, restitution or specific performance according to customary law” and “any order as to costs, fees or other charges” as long as the order is fair and reasonable and not in conflict with the Constitution or any other statutory law (Art 22).
8. A process of a CC will have force in the whole country and the police can play a role in serving such a process (Art. 17). Any person who fails to obey a CC summons without good excuse may be arrested on the order of the CC, either by a messenger of the CC or by a messenger of the Magistrate's Court or by the police to be brought before the court and also to be fined. A person may report an unsatisfied order of a CC to the Magistrate's Court, which will order a writ of execution to be executed in the same manner as if the order were that of a Magistrate's Court (art 23). Training manuals that were observed during the research showed that both the police and the MC received training on enforcement in CCs.
9. Various interviews with traditional leaders, 2009/2010 fieldwork.
10. Art. 26(1), 27(1), 29.
11. Retrieved from http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW%2FC%2FNAM%2F2-3&Lang=en.
12. Retrieved from http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CEDAW/C/NAM/CO/3&Lang=En.
13. Because “costs generally follow the event”, the losing party will have to pay part of the costs of the winning party which discourages access to justice in public interest cases and for low-income litigants (Zoila and Hubbard Citation2012); (DLA piper, http://www.newperimeter.com/our-work/access-to-justice/namibia-access-to-justice.html).
14. Cases that have gone to court involving customary issues have been disputes over who is a rightful chief, about burial of a chief, and about widow inheritance (see, for instance, Kaputuaza & Another v Executive Committee of the Administration for the Hereros & Others 1984 (4) SA 295 (SWA); Moraliswani v Mamili, Supreme Court of SWA, 12 June 1985 (unreported judgement); Ndisiro v Mbanderu Community Authority & Others, 1986 (2) SA 532 (SWA); Pack v Muundjua & Others/Tjipetekera v Muundjua & Others, 1989 (3) SA 556 (SWA); Kakujaha v Tribal Court of Okahitua, Supreme Court of South West Africa, 20 March 1989 (unreported judgement); Ex Parte Attorney-General, Namibia: In Re Corporal Punishment by Organs of State, 1991 NR 178 (SC); S v Sipula 1994 NR 41 (HC); S v Haulondjamba 1993 NR 103 (HC); Makono v Nguvauva 2003 NR 138 (HC) (communication with Dianna Hubbard, Legal Assistance Center, Windhoek).
15. See, for instance, Hinz (Citation2010b; Citation2010c) in his book on the ascertainment of customary law in three Namibian communities, Anyolo (Citation2010) in an article regarding the daily official activities of the Ombadja traditional authority in Namibia, and Becker Citation(1998) who touches upon procedural aspects of traditional courts while discussing the position of women in leadership and in customary law.
16. Procedures are for the purpose of this article broadly defined, including rules to ensure a fair and consistent application of due process such as regarding recusal; rights to participate in the proceedings; and practical rules regarding the daily operation of Traditional Courts such as the location of the court, and the planning, timing and duration of cases.
17. See for a discussion on the impact of negotiability also Ubink (Citation2008) and Woodhouse (Citation2003).
18. Article 10 of the Constitution, on equality and freedom from discrimination reads: “1. All persons shall be equal before the law 2. No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status”. Moreover, in 1998 the Affirmative Action (Employment) Act, 1998 (Act 29 of 1998) was drafted and provides for possibilities for affirmative action for women. In addition, the law governing local elections makes use of affirmative action for women, resulting in the fact that about 40% of all members of City, Town and Village Councils are women (Becker Citation2000). Namibia ratified the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) in November 1992 and there is a national gender policy and a department of women affairs since 1990. The Social Security Act of 1994 (Act 34 of 1994) provided for paid maternity leave and in 2000 the Combating of Rape Act (Act 08 of 2000) was enacted as well. Namibia has experienced a feminization of a broad range of jobs and professions, such as in the public sector, the government's management cadre, teaching (Becker Citation2000, 187), etc., and a gender policy and plan of action since 1998 (National Gender Policy 2010, Ministry of Gender Equality and Child Welfare). Next to all relevant legislation, the Namibian government also develops training programs and training manuals to teach communities about illegal and discriminatory practices, for example on women's land rights (Ambunda and De Klerk Citation2008, 60). In conclusion, women and the struggle for gender equality have received quite some attention and visibility and there have been successes. At the same time, however, the number of female politicians in parliament have been decreasing (The Namibian, 11 may 2012) and a shadow report submitted to the UN on gender issues in Namibia also warns of major existing problems that still need to be tackled, such as matters relating to customary marriages, inheritance, domestic violence and discriminatory property ownership practices (Ubink Citation2011b).
19. These TAs – like most others in the country – have all applied for and received the recognition of their highest Traditional Courts as Community Courts. At the time of the field research, the level of implementation of the CCA differed markedly per region. In Otjikaoko TA only some councilors had been sworn in and these councilors had not yet received any training. In Uukwambi TA, on the other hand, all councilors had been sworn in by the Magistrate's Court and the justices and secretaries had already received several trainings from the government, covering procedures in the Community Courts as well as the relevant provisions of the Namibian Constitution. In Caprivi region, nearly all councilors had been sworn in by the Magistrate's Court, but only at two TCs had the new councilors received a first training by the government.
20. 10 Namibian dollar was worth 1.18 US dollar on 31 December 2012 (fieldwork period).
21. Messengers were introduced in the Community Courts Act (2003). They are now required at every TC and paid with money the government makes available for TCs.
22. Interview 34, woman (22 January 2013), Caprivi region.
23. The CCA distinguishes between justices and assessors, but except for the fact that the chairperson would normally be one of the sworn-in justices, no other work-division was clearly visible in practice. In this article, we will refer to both groups as “councilors.”
24. This practice is prohibited by art 7(8) of the Community Courts Act.
25. The longest observed case took four days.
26. Interview 13, man (27 November 2012), Otjikaoko TA.
27. Interview 11, man (27 November 2012), Otjikaoko TA.
28. Interview 51, man (29 January 2013), Caprivi region.
29. Interview 56, woman (30 January 2013), Caprivi region.
30. Interview 34, woman (22 January 2013), Caprivi region.
31. Interview 54, woman (30 January 2013), Caprivi region.
32. Although the number of cattle for certain crimes or wrongful acts have been determined in all six TAs studied, either in the form of self-stated customary laws or in the form of ‘case law’ of the highest TCs, there is often still discussion on the exact decision to be made, centering for instance around which crime has been committed or to what extent someone is culpable.
33. Women have to wear a “chitenge” (long skirt), headscarf and have to kneel and clap before speaking. Although men also kneel and clap before speaking in public, they have to do this less often and less long.
34. Interview, woman (6 February 2013), Uukwambi TA
35. Interview 40, woman (24 January 2013), Caprivi region.
36. This was observed in the Otjikaoko TC.
37. Interview, woman (6 February 2013), Uukwambi TA.
38. Becker found similar results during her research and stated that women didn't know much about the customary laws and found this problematic (Becker Citation1998, 4).
39. A 2007–2008 study in eight Namibian regions found that 41% of female respondents had experienced domestic violence (SIAPAC (Social Impact Assessment and Policy Analysis Cooperation) Citation2008).
40. Interview 18, woman (29 November 2012), Otjikaoko TA; Interview 20, woman (30 November 2012), Otjikaoko TA; Interview 21, women (30 November 2012); Interview 22, men (30 November 2012), Otjikaoko TA.
41. Art. 10 of the Constitution guarantees gender equality.
42. There has only been one case that went to the national ombudsman after a party was unsatisfied with the decision at the highest TC (source: interview with Mr Shangala, president of the Law and Development Commission).
43. Commentators also mention the fact that it could become problematic for the Magistrate's Court to gain the needed knowledge of the applicable customary law. Since customary law is not written down, and the Magistrate's Court does not have the available resources or powers to call in experts or do research, it is still unclear how the Magistrate's Courts will be able to handle these cases of appeal (Horn Citation2010, 121–24; interview with Dianne Hubbard from the Legal Assistance Centre, 2012). According to Ruppel and Ambunda (Citation2011, 16–17), the necessary infrastructure to implement the CCA is lacking, as well as trained staff in the area of customary law both at the local level as well as in the Magistrate's Courts. The Ministry of Justice, however, claims there will not be any problems as all MCs have written copies of the customary laws and a justice or assessor from the CC will accompany an appeal at the MC to answer any other questions (Interview Ms. Nathaniel, Deputy director of the department of customary law, Ministry of Justice, 25 February 2013). While it is true that most TAs in Namibia have now written “self-statements” of their customary laws, most of these are rather concise and cannot be regarded as comprehensive. A case in point is the self-statement of Uukwambi TA, as well as the self-statement of the Otjikaoko TC. The latter consists solely of five written pages stating the most important offences and the standard number of cattle to be paid for the offence. This issue is further connected to the limited records kept by TCs. All researched TCs (who are all recognized CCs, although in rather early stages of implementation) said that they complied with the requirement of extensive recordkeeping. In practice, however, the records at the time of this research were rather summaries of the cases, with an emphasis on administrative data such as names, dates and the final decision. The long and extensive proceedings complicate the task of record-keeping. The government does not provide any guidance as to what needs to be recorded, and does not provide the CCs with recording books. In comparison, in Malawi, Traditional Tribunals were supplied with recording books with specified entries in the Primary Justice Project, which led to a marked increase in extent and quality of record-keeping (Meerkotter and Watson Citation2011). Hinz (Citation2010a) finds that record-keeping is especially a challenge where resources and the proper infrastructure are still insufficient and fears this will negatively influence the right to appeal.
44. Research by Ubink between 2002 and 2004 in Ghana showed that the impact of state court decisions based on customary law was very limited in the localities.
45. This issue came up in personal communications with several LAC staff members, as well as in the interview Ms. Nathaniel, Deputy director of the department of customary law, ministry of justice (25 February 2013) and the interview with Mr Shangala, president of the Law and Development Commission.
46. Because the research was conducted in one TA in the Kunene region (Otjikaoko TA), one TA in the Oshana region (Uukwambi TA) and four TA's in the Caprivi region (Mashe, Mafwe, Mayeyi and Masubia TA's), the article will refer to Otjikaoko TA, Uukwambi TA and Caprivi region.