 |
 |
| HUMAN RIGHTS & DOCUMENTATION CENTRE (HRDC) |
|
Traditional Authorities COMMUNITY COURTS Introduction Traditional authorities and its structures suffered severely under colonialism. However, they were never totally destructed and eventually the colonial powers used them. The colonial authorities realized that they could not maintain law and order in all the outskirts of the colonies. They also recognized the value of the system in existence when they colonized Africa . Rather than rooting out the traditional structures, including customary law and customary courts, the colonial powers acknowledged both the customary structure and its legal system. It goes without saying that they also used it for their own purposes. Consequently, customary law and the customary legal system was part of the Namibian legal system both during the period of German colonization and South African occupation. While the African colonial powers, and in the case of Namibia , in particular Germany and England , recognized customary law, it was never fully integrated in the mainline legal system. Its application was confined to special courts, while the common law courts only took ad hoc notice of it. This limited application of customary law was further restricted by the so-called repugnancy proviso . The proviso, applied in virtually all African colonies, made it possible to prevent enforcement of customary law if it was contrary to natural justice or threatened the social order. However, Bennett comments that it had a more notorious function: to prevent the enforcement of customary law that offend western norms and standards. Hinz points to the inherent discriminating element of the repugnancy proviso in that it always worked in favor of general law as a one way street to out rule customary law whenever a conflict occurred between the two systems. The Namibian Constitution recognizes common law and customary law on equal footing. However, in practice not much attention was given to customary law until November 2003, when the Community Courts Act came into operation and repealed pre-independent legislation. Read the rest of MS Word document here. [PDF File]
Articles |
The Oshivambo Traditional Leaders.
The Caprivi Traditional Leaders.
The Kavango Traditional Leaders.