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Customary Assignment 2

The document is a law assignment cover page for a student named Koromora Blessed studying Customary Law. It includes the student's name, student number, email, phone number, law center, course name and code, assignment number, and two questions. Question 1 discusses whether traditional leaders can discipline subjects through corporal punishment. The conclusion is that traditional leaders cannot subject people to corporal punishment as it violates the Namibian Constitution's protection of human dignity. Question 2 examines how the Namibian Constitution impacts litigation involving customary law. The Constitution establishes that customary law must not conflict with the Constitution or legislation. It also subjects customary law to the judicial hierarchy and fundamental rights in the Constitution.

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Thristi Thethird
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24 views

Customary Assignment 2

The document is a law assignment cover page for a student named Koromora Blessed studying Customary Law. It includes the student's name, student number, email, phone number, law center, course name and code, assignment number, and two questions. Question 1 discusses whether traditional leaders can discipline subjects through corporal punishment. The conclusion is that traditional leaders cannot subject people to corporal punishment as it violates the Namibian Constitution's protection of human dignity. Question 2 examines how the Namibian Constitution impacts litigation involving customary law. The Constitution establishes that customary law must not conflict with the Constitution or legislation. It also subjects customary law to the judicial hierarchy and fundamental rights in the Constitution.

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Thristi Thethird
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© © All Rights Reserved
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CODeL ASSIGNMENT COVER

2022 ACADEMIC YEAR


Student Name Koromora Blessed
Student number 221334696
Email Address [email protected]
Cell/Tel no 0814071090
CODeL Centre Windhoek Centre

Course/Module Name Course/Module


Code
Customary Law JCU3601

Assignment no
(e.g. 1, 2 or 3, etc.).
2
Question 1. Discuss whether a Traditional Leader/Chief is allowed to discipline
his/her subjects by way of corporeal punishment.

Traditional leaders preside over traditional communities which are the creation of the
Community Courts Act 10 of 2003. The Act also provides detailed procedures and
requirements for the establishment and recognition of community courts in a
particular traditional community1. Traditional Leaders derive their power from the
Traditional Authorities Act 25 of 2002 and have the jurisdiction to preside over both
civil and criminal matters under section 12 of the Community Courts Act,2003 which
states that a community court shall have jurisdiction to hear and determine any
matter relating to a claim for compensation, restitution or any other claim recognized
by the customary law, but only if the cause of action of such matter or any element
thereof arose within the area of jurisdiction of that community court; or the person or
persons to whom the matter relates are in the opinion of that community court
closely connected with the customary law2.

Given the provided jurisdiction Traditional leaders cannot impose custodial


sentences or impose a punishment that is contrary to the constitution 3. According to
Berker, C.J, the one major and basic consideration in arriving at the decision
pertaining to whether corporal punishment impairs human dignity and can be used
by courts as punishment involves an enquiry into the general norms, approaches,
moral standards and a host of other established beliefs of the people of Namibia 4.
This means that one must make a conclusion based off value judgment and not
simply off statutory provisions and legal precedents but rather one must take full
cognizance of the social conditions experiences and perspectives of the society 5.
Such actions further advance the legal theory of Afrocentric jurisprudence which
emphasizes the importance of African cultural values and traditions in the

1
Amoo, S.K. The Structure of the Namibian Judicial System and its relevance for an Independent
Judiciary. https://www.kas.de/c/document_library/get_file?uuid=6f5df420-fdb8-499c-ee80-
c1516dce114e&groupId=252038 . p22.
2
The Community Courts Act,2003. Section 12.
3
Amoo, S.K. The Structure of the Namibian Judicial System and its relevance for an Independent
Judiciary. https://www.kas.de/c/document_library/get_file?uuid=6f5df420-fdb8-499c-ee80-
c1516dce114e&groupId=252038 . p22.

4
Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA 14 of 1990) [1991]
NASC 2 (5 April 1991)
5
Ibid.
development of legal principles and systems 6. Additionally in ‘Humaneness as a
Core Value in Afrocentric Jurisprudence’ Boateng, K states that generally the
traditional legal system is grounded in humaneness or Ubuntu which makes it better
equipped to serve the interest of justice, fairness and equality 7. To determine the
legality or rightfulness of a traditional leader’s conduct of using corporal punishment,
the reasoning for such punishment should fall inline with Article 8 of the Namibian
Constitution which guarantees to respect for human dignity, freedom from torture,
cruel and inhumane degrading treatment8.

The concept of Ubuntu is an important pillar in traditional communities and it also


signifies the rejection of violent and degrading forms of discipline or punishment in
favour of alternative forms of punishment that promote respect and understanding.
Additionally taking note of Article 8 of the Namibian Constitution, perhaps the most
important element in determining whether traditional leaders can apply corporal
punishment to discipline their subjects, is the desirability of corporal punishment,
even if moderately  applied and subject to very strict controls, the fact remains
that any type of corporal punishment results in some impairment of dignity and
degrading treatment9, and as such traditional leaders cannot subject their subjects to
corporal punishment.

Question 2. To what extent does the Namibian Constitution impact on litigation


arising from the enforcement and application of customary law?

Article 66(1) of the Namibian Constitution states that ‘both the customary law and the
common law of Namibian in force on the date of independence shall remain valid to
the extent to which such customary or common law does not conflict with this
Constitution or any statutory law’ 10. The provision is mainly concerned with
confirming the validity of customary law and determining its relationship with the

6
Okeke, J.N.N. "Afrocentric Jurisprudence: An Overview." African Journal of International and
Comparative Law, vol. 27, no. 1, 2019, pp. 44-46.

7
Boateng, K. "Humaneness as a Core Value in Afrocentric Jurisprudence." Potchefstroom Electronic
Law Journal, vol. 18, no. 5, 2015, pp. 121-123.

8
The Namibian Constitution Third Amendment Act,2014. Article 8.
9
Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA 14 of 1990) [1991]
NASC 2 (5 April 1991)

10
The Namibian Constitution Third Amendment Act,2014. Article 66.
Constitution and prevailing legislation 11. Customary law lacks a codified nature due
to the ever changing way of life of the society that live by it. However it was
determined in the case of Mukennah v GRN that the validity of customary law
resonates from the community it is deemed valid and it is massively impacted by the
majority expressed opinion of the community 12, with the validity of the law based off
social practice it may be very hard to attain singularity in deciding whether the
customary laws are valid, furthermore such customs are to be used in the confines of
the Constitution which is the supreme law under Article 1(6) of the Namibian
Constitution13.

In determining whether a rule is certain, reasonable and uniformly observed for a


period of time of the matter customary law is subject to the opinions of the witnesses
who live according to such laws. The Constitution also subjects customary law to the
hierarchy of the judicial system in Article 78(1) of the Namibian Constitution which
states that the judicial power shall be vested in the courts of Namibia which shall
consist of firstly the Supreme Court of Namibia, secondly the High Court of Namibia
and thirdly the Lower Courts of Namibia 14 which includes Community Courts,
evidently separating the courts. Prima facie it indicates loose ranking of rights
whereby any to cultural or customary law would consistently have to give way to the
fundamental rights or the bill of rights such as Article 19 of the Namibian Constitution
which provides that ‘the right to culture shall not impinge upon the rights of others’ 15.
This in turn indicates the conflicting nature of the constitution fundamental rights and
customary law16.

The Constitution being the supreme law in the instance that the entire bill of rights
were to prevail over customary law it would consequently lead to an end of

11
Bennet, T.W. Customary Law and The Constitution. Law Reform and Development Commission of
Namibia. Windhoek, Namibia.
12
Mukennah v GRN of the Republic of Namibia [2020] NAHCMD 422 (4 September 2020)
13
The Namibian Constitution Third Amendment Act,2014. Article 1(6).

14
The Namibian Constitution Third Amendment Act,2014. Article 78(1).

15
The Namibian Constitution Third Amendment Act,2014. Article 19.

16
Mukennah v GRN of the Republic of Namibia [2020] NAHCMD 422 (4 September 2020)
Namibia’s indigenous legal system 17. To avoid such a situation the conflict should be
resolved by balancing interests .

Reference List

Amoo, S.K. The Structure of the Namibian Judicial System and its relevance for an
Independent Judiciary. https://www.kas.de/c/document_library/get_file?
uuid=6f5df420-fdb8-499c-ee80-c1516dce114e&groupId=252038

Bennet, T.W. Customary Law and The Constitution. Law Reform and Development
Commission of Namibia. Windhoek, Namibia.

Okeke, J.N.N. "Afrocentric Jurisprudence: An Overview." African Journal of


International and Comparative Law, vol. 27, no. 1, 2019,

The Community Courts Act,2003

The Namibian Constitution Third Amendment Act,2014

Ex parte: Attorney-General In Re: Corporal Punishment by Organs of State (SA 14


of 1990) [1991] NASC 2 (5 April 1991)

Mukennah v GRN of the Republic of Namibia [2020] NAHCMD 422 (4 September


2020

17
Bennet, T.W. Customary Law and The Constitution. Law Reform and Development Commission of
Namibia. Windhoek, Namibia.p33.

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