ARE HUMAN RIGHTS UNDER CUSTOMARY LAW MAINTAINED IN NAMIBIA?
PREFACE
The Namibian legal system is run by Roman Dutch Law. However the Namibian legal system also employs other sources of law such as International law and customary law. For the purpose of this paper, I will focus on customary law in light with Human rights – Particularly on the question of whether Human rights as provide for by chapter 3 of the Namibian constitution are really maintained under customary law in Namibia…….The discussion of human rights under customary law in Namibia derives its significance from the fact that; customary law is a law that is based on cultural principles, values and norms of the Namibian people. It is an indigenous law of Namibia and somehow, it has a notorious history of controversy as some of the cultural principles and practices are full of stereotypes, discrimination and gender inequality. However despite that, customary law according to article 66(1) of the Namibian constitution is legitimate. I thus find it rather necessary to review and critically analyse whether human rights – which are not only the reflection of the human soul but also the heart of the Namibian constitution are maintained as well as upheld under customary law.
WHAT ARE HUMAN RIGHTS?
In his book “The Namibian Constitution in perspective” Joseph Diescho defines Human rights as “inherent in human nature without which persons cannot live fully as persons” Diescho further states that:“Human rights refer to basic human needs within the framework of a society of people that are responsible for themselves as well as those around them. Human rights and the fundamental freedoms that go with these rights allow people to fully develop and employ their potential qualities, intelligence, and talents to satisfy their spiritual and other needs without hurting other people.”
HUMAN RIGHTS UNDER CUSTOMARY LAW IN NAMIBIA
Many people wrongly believed or rather believe that the concept of human rights and the need for the realisation of human rights are issues that only arose from apartheid, because of the discrimination and stigma that was going on during that time. This is not true, human rights are universal and they have existed ever since the beginning of human nature all over the world. It was the people themselves that either chose to ignore these rights; failed to discover human rights as part of the life anatomy or they simply did not understand what human rights are. This is what has been going on over the past years in our Namibian Customary law system. People believed more in tradition, customs, values and norms. They ignored what human rights or what they entail. This is exactly what gave customary law a history of discrimination, stereotypes and gender inequality. A lot of hard work and special attention had to be paid to customary law specifically, in order to educate people about their rights and get them to familiarise themselves with the Namibian constitution. This also included the traditional leaders as many of them ruled kingdoms and other traditional communities under customary principles with less knowledge about human rights. However, today we all honour our Namibian constitution mainly, for playing a very important role in changing the way Namibians perceived human rights under customary law. Traditional leaders today understand and maintain human rights in their communities. Most of the customs and cultural practices that were in discord or rather violated human rights have been amended and some were even abolished, in order to comply with the bill of rights that is employed in chapter 3 of the Namibian constitution today. Some examples ofmeasures that have been taken under customary law in order to maintain and uphold human rights are:
• Gender equality
In many cultures, women used to be inferior to men, because it was a cultural norm that a woman’s work was to rear children and take care of the sick and the elderly. Women could not go to work like man did and excuses that were given for that are often flimsy for example ‘because women get pregnant, or because they could be on their menstrual periods while they are working.’ It was unfair that women had a burden of managing the whole household and yet they could not get equal access to resources as men just because of the cultural principles and customs that apparently have to be respected. Women actually did much more than men did but this was rather ignored. All this practices were discriminatory on the grounds of sex, however in recognising customary law, article 66(1) of the Namibian constitution clearly outlines that customary law will only remain valid to the extent to which it does not conflict with the constitution or any other statutory law and article 66(2) further states that these customary laws that discord with the constitution can however be amended or repealed. That is why when the whole issue of gender inequality was noticed within customary law, customary law principles that were elevating gender inequalities were amended, abolished or repealed by the Act of parliament. Even under customary law, women are now allowed to have equal opportunities as men.
• Education
In many traditional communities, school was not really important, education was ignored. A better decision was rather that of staying home to work in the field, or to go and find a job at a certain farm and make some money for a living. Parents did not know the importance of paying for their children’s education to go to school. They believed that that it is better for their children to stay at home and help them to work on farms and that way, they will get a massive harvest and they shall not go hungry. But this has changed, for example according to Manfred O Hinz (Customary law ascertained), Ombandja community of the Oshiwambo speaking society in the northern part of Namibia, has incorporated the rule of education to be compulsory within its Ombandja customary laws and regulations, in order to comply with article 20 of the Namibian constitution that provides for education.
• Land rights
In the Mayeyi community of the Caprivi region, the members of the society were not allowed to have any rights over the land, they could not own land. The Chief owned all land and he could allocate the land to whoever he wants, he could as well remove whoever he wants to get off his land. This was easily elevating corruption and discrimination. Today the Chief allocates the land according to the Chapter 5 of the Communal Land reform Act 5 0f 2002 and this is fairer because everyone gets to be equally allocated land to, which is actually their right as per article 16 of the Namibian constitution. This is great because now the community members can enforce their land rights in such a way that any aggrieved party can seek redress to a competent court or tribunal in terms of article 18of the Namibian constitution.
CONCLUSION
Although human right are better said to be maintained under customary lawin Namibia; there are still some challenges in making people to understand and be fully aware of their rights as human beings. Acts of parliament might repeal, abolish and amend all practices that violate human rights but people are not really much exposed to these statutes. People hardly read the constitution to familiarise themselves with their rights. One thing I noticed is that their copies of the Namibian constitution are hardly accessible in areas which are not in Windhoek especially the north of Namibia. People in the north just hear of their rights but they do not have a compilation of these rights thus they do not get to be fully aware of their rights. I think copies of the law documents need to be equally distributed all over the country. That way everyone will know their rights, were they begin and when they end especially in the remote areas of Namibia.
REFFERENCES
Customary law ascertained- Manfred O Hinz- (The laws and regulations of the Ombandja and Mayeyi communities)
The Namibian Constitution in perspective – Joseph Diescho (Defining human rights)
The Namibian Constitution - Article 16- (Land rights)
The Namibian Constitution - Article 18- (Administrative justice)
The Namibian Constitution - Article 66(1) - (Recognition of customary law in Namibia)
The Namibian Constitution - Article 66(2) - (Repealing and amendment of customary laws)
LegislationCommunal Land reform Act 5 0f 2002 - (Allotment of land rights by the chiefs)