Efraim Shimbali
Africa was once an independent continent.
A civilised continent with cultural diversity and very creative. Nations were well-organised under a particular cultural structure that governed them.
Various nations were built around specific customs and cultural practices guiding them. This talks to traditional authorities that did not really create laws, but rather preceded over people to enforce the customs of that tradition. A structure where the customs would not be imposed by default, but thoroughly taught and made aware to everyone in the society.
This is a governance of its own that kept societies flourishing in Africa and defined a dignified yet unique self-sustaining community.
When the external forces came into contact with Africa, Africans still had their structures in place. The division and grouping of different nations by the external forces was a destruction of what kept the societies together and a force to accept a new structure of governance.
The formation of countries like South-West Africa, now known as Namibia, is a result of that governance restructuring. The new governance system introduced laws that were foreign and oppressed the indigenous population.
The resistance to this oppressive governance is what forced the now-called Namibians into exile.
At this point, the traditional governance structure was destabilised. Most of the traditional leaders were captured towards aligning themselves and their people to the new oppressive governance.
Negotiations to offer independence were no different, other than the acceptance of the implementation of democratic governance, with no restoration of the traditional authorities’ governance structures.
What Resolution 435 provided was not a restoration of the traditional governance structure that kept them together for all those years. A foreign governance structure was a recommendation for peace, and the illusion of independence was the acceptance of this structure to replace the traditional one.
The formulation of the Namibian Constitution was under UN supervision, whose constitution was a source of some laws. This Constitution taught people the inheritance of international laws, Roman-Dutch common laws, and did not teach them the traditional customs nor their governance structures.
What will then define the independence of superseding the traditional governance laws?
The most crucial thing is that we live in a country that has two governance structures: The Constitution and the traditional authority. These are two different systems of governance. However, the Constitution took superiority over traditional law.
The traditional authority, which was an independent governance structure, is controlled by the Constitution, which is a derivative of foreign aspects. This erased the dignity of traditional authorities and the structure of the society.
While we preach unity under a country, a division as per the Berlin conference, with various traditions in that country, the traditional authorities and their laws have no power in defining the governance of this country.
In cases where one totally disagrees with committing to foreign laws and prefers to follow customs of their tradition, they are judged by a constitution.
This disregards the powers of that tradition and limits freedom of existence as well as sense of belonging. The Constitution has limited the traditional authority and its powers in the grouping of traditionally-led nations.
The superiority of the Constitution does not appreciate traditional governance to be of equal importance in governance. Its superiority remains a strong pillar in keeping colonial borders by grouping different traditional nations, but it did not care to group traditional customs in formulating a constitution that incorporates its customs.
One would want to face a traditional way of scrutiny in cases of wrongdoing, but the Constitution dictates which offence qualifies to be scrutinised under a traditional court. The punishments offered in the traditional authority are not incorporated in laws empowered by the Constitution.
There are some traditional values that are depicted as offensive to some laws empowered by the Constitution. A great example is a fight between the Constitution and traditional customs on land. Traditionally, land was not an asset to be owned by individuals, but a basic need for a nation as a unit. Under the Constitution, it belongs to the state and is divided for individual ownership as an asset of individuals.
One would enquire into the transaction that disposed of the power of ownership from the traditional authority to the Constitution.
There are many traditional structures that kept African civilisation thriving. Many kept people focused, engaged in economic freedom, in freedom of exploring around Africa, freedom to interact with other traditions, but still acknowledging differences. That did not prevent the evolution of African civilisation.
The limitation of the powers of the traditional authority by the Constitution has deprived their full expression in governing their people as well as the country.
Different traditions constitute different customs which remain powerful to the existence of their people, and if that does not make up the Constitution, it may as well defer the importance of grouping them under that country.
It speaks to their cultural rights and a heritage that defines them. Their customs should not be seen as a threat or valueless, but rather as an equal force to run the state. It is these customs that defined their economic ownership as well as their social structure.
‘Limiting their powers has erased their economic involvement and destabilised a dignified social structure. It is these customs that defined their uniqueness and independence from the rest of the world.
Efraim Shimbali
Namibia YALI 2024-Partnership and resources mobilisation coordinator
Author of “I woke up on African Leadership”
shimbaliefraim@gmail.com
