Namibia Digital Repository

Stating the Customary: An Innovative Approach to the Locally Legitimate Recording of Customary Law in Namibia

Dublin Core

Title

Stating the Customary: An Innovative Approach to the Locally Legitimate Recording of Customary Law in Namibia

Subject

‘Traditional Justice: Practitioners’ Perspectives’ Working Paper Series

Description

"This article starts with a discussion of the different historical mechanisms that have been developed for recording customary law: codifications, restatements and case law systems. It will analyze and compare their goals and rationales, their methodological requirements, and their possible advantages and shortcomings. Furthermore, the article will provide insight into the real effects on the functioning of customary law in countries or areas where such mechanisms have been introduced. It will show that each of these mechanisms has its own dynamics and opportunities, as well as serious drawbacks. The most important weaknesses of the recording attempts are the loss of adaptive capacity as well as the resulting gap between the recorded version and the living customary law.

Recently, an innovative approach to recording customary law can be witnessed in certain areas through self-recording by customary groups or their traditional leaders, which has, for instance, been taken in Namibia. To generate new knowledge on the advantages and obstacles of self-recording substantive customary law, this article will explore the remarkable activities undertaken from the beginning of the 1990s by the Owambo Traditional Authorities in northern Namibia to arrive at a self-statement of the most important substantive and procedural customary norms, while simultaneously adapting some norms to conform to Namibia’s Constitution. How and why did this process take place? Who were the change agents? And which norms ended up on paper? The article then presents the impact of this process in one of the Owambo Traditional Authorities, the Uukwambi Traditional Authority. It studies to what extent the new laws are actively propagated, are known by traditional leaders and common villagers, and are seen as customary law. Furthermore, it analyzes how and to what extent the recording of the most important customary norms has had an impact on the functioning of the customary legal system in the Uukwambi Traditional Authority: Have the new norms effectuated behavioral change, and are they enforced by traditional authorities? 

Through research data collected in 2009 and 2010 – more than 15 years after the initiation of the process – it becomes clear that the self-statement of customary law prompted certain positive changes in Uukwambi’s customary justice system. First, it had a profound impact on the functioning of customary law. Although the self-statement was not comprehensive and only covered the main rules of customary law, it did increase the certainty of the justice system by reducing the level of discretion of traditional courts, especially with regard to sentencing. This aspect was regarded positively by common villagers as well as by traditional leaders. Second, the research data show that the adaptations made were well known and highly effective. The new norm prohibiting “land grabbing” or “widow dispossession” was well-known and implemented. The latter is especially striking when compared with statutory interventions in other African countries to outlaw land grabbing, which have been only marginally successful. 

The arguments presented in this article draw on field research conducted in the Uukwambi Traditional Authority between September 2009 and February 2010. Data were collected principally through qualitative data collection methods, comprising semistructured interviews – with women, women leaders, traditional leaders, farmers, governmental authorities, academics, staff of non-governmental organizations (NGOs) – focus group discussions with women and NGO staff, and participant observation of traditional court meetings. In addition, structured interviews on the basis of a survey"

Creator

Janine Ubink

Publisher

International Development Law Organization

Date

2011

Contributor

Bernard C. Moore

Format

PDF File

Language

English

Type

Working Paper

Files

Collection

Citation

Janine Ubink, “Stating the Customary: An Innovative Approach to the Locally Legitimate Recording of Customary Law in Namibia,” Namibia Digital Repository, accessed September 19, 2018, http://namibia.leadr.msu.edu/items/show/205.

Document Viewer