Human
Rights
Formal
Recognition for Three Namibian San Traditional Authorities Denied
In August 2001 representatives of the Traditional Authorities of the Ju|'hoansi
of Omaheke North, the !Xõó of Omaheke South and the Khwe
of West Caprivi told WIMSA that the Minister of Regional and Local Government
and Housing had written to inform them that the Namibian President had
mandated him to tell them that their traditional authorities had been
denied recognition. WIMSA was asked to investigate the background to this
decision, and the three traditional authorities mandated the Legal Assistance
Centre (LAC) in Windhoek to represent them in legal action against the
state.
The
Ju|'hoansi Traditional Authority
WIMSA networked with a number of stakeholders and established that the report of the High Level Investigation Committee on Outstanding Tribal Disputes in the matter of the Ju|'hoan community of Omaheke North had been heard during the Third Annual Meeting of the Council of Traditional Leaders on Tribal Disputes in November 2000. The summary report on this meeting states:
The council considered the representation made by the community representatives during its Second Annual Meeting that the biggest problem of this community was the question of leadership, which was destroyed many years ago. The council was further heartened by the community's effort to pull each other together through the initiatives that they have already made in electing its leader in the Omaheke Region barring succession protocols.
The council recommended to the Namibian President the following:
[T]he Ju|'hoan community meets the requirements under the Traditional Authorities Act to be recognised as a traditional authority and recommends to His Excellency the President to consider their application favourably.1
Clearly the President decided not to act in accordance with this recommendation since his Minister wrote on 18 July 2001 in a letter to Ju|'hoan Chief Designate Frederik Langman as follows:
In terms of Section 5(3)(a) and (b) of the Traditional Authorities Act, Act 25 of 2000, there is no need to establish another traditional authority for the Ju|'hansi [sic] community. If the Ju|'hansi [sic] community want to resettle on a particular place to practise their culture, it can be done. However, such place cannot be considered as area(s) for the Ju|'hansi [sic] community only. Note, Namibia belongs to all its people.
The
Ju|'hoansi of Omaheke North do not agree with this statement as they see
their culture, language and most of all their history to be considerably
different from that of the Ju|'hoansi living in Nyae Nyae in the Otjozondjupa
Region.
The !Xõó Traditional Authority
Regarding the !Xõó Traditional Authority's application for formal recognition, the summary report on the Council's Third Annual Meeting states:
After thorough deliberations and debate, the Council of Traditional Leaders resolved to recommend to his Excellency: ...
- that the
!Xoon community consisting of the !Xoon, Naro and the !Xwa be regarded
as one community;
- that in
terms of the Traditional Authorities Act, the !Xoon community meets
the requirements for recognition ... as a traditional authority;
- that His Excellency the President considers the application of the !Xoon community for recognition as a traditional authority favourably".2
Again the President decided against following the Council's recommendations. He instructed the Minister to inform !Xõó Chief Designate Willem Ryperd as follows:
In terms of Section 5(3)(a) and (b) of the Traditional Authorities Act, Act 25 of 2000, there is no history of the establishment of !Xo [sic] traditional authority.
The letter continues in the same vein as the letter to Ju|'hoan Chief Designate Frederik Langman vis-à-vis "… a particular place to practise their culture …".
Like
the Ju|'hoansi the !Xõó do not accept the President's decision.
They are able to prove that they have a history of traditional leadership.
The Khwe Traditional Authority
The recognition of the Khwe Traditional Authority was dealt with in the Second and Third Annual Meetings of the Council of Traditional Leaders. In the second meeting the council referred the matter to the High Level Investigation Committee on Outstanding Tribal Disputes "to investigate the apparent confusion and to determine whether it is practical and feasible for one geographic area in the northern part of the country to have more than one traditional authority".3
Since the High Level Committee was unable to meet the Chief and members of the Mbukushu Traditional Authority (who live in the Okavango Region west of West Caprivi where the Khwe live), "the Council further tasked the High Level Committee to remain seized by this matter".4
LEFT:
Ju|’hoan Chief Designate Frederik Langman of Omaheke North
RIGHT: !Xõó Chief Designate Willem Ryperd of Omaheke South
Contrary to the Council's recommendation the Minister of Regional and Local Government and Housing wrote a letter on behalf of the President to the Acting Khwe Chief Designate Thadeus Chedau stating the following:
The area claimed by the Khoe [sic] community traditionally in terms of chieftainship belongs to the Mbukushu traditional authority. In terms of Section 5(3)(a) and (b) of the Traditional Authorities Act, Act 25 of 2000, there is no reason why a Khoe [sic] traditional authority must be established. However, the Khoe [sic] community is allowed to practise their culture, customs and language freely.
In September 2001 the Acting Khwe Chief and 10 Khwe community leaders told the Ombudswoman herself and the Director for Investigations in the Office of the Ombudswoman that their community does not accept having to live under the command of controversial Mbukushu leader Erwin Mbambo. Problems often arise for the Khwe because among other things the Mbukushu culture and language are distinctly different from their own. Shortly before meeting with the Ombudswoman Acting Chief Thadeus Chedau had this to say:
The Government and even the Constitution stipulates that all tribes are equal but our tribe is excluded; it is deprived of this constitutional right. Why are we excluded and where are our rights in an independent Namibia?5
The report on the meeting states:
[The Ombudswoman] made a commitment to do everything in her power and within the confines of the law to ensure that Namibia's good human rights record is not dragged through the mud by ensuring that tolerance and respect for the rights of the minority groups is nurtured and guaranteed. She commended the Khwe community for taking it upon themselves to advocate for change in their area and encouraged them to continue knocking at every possible door of authority to not only seek audience on problems facing them but to proactively create awareness about the existence of the Kxoe community as an integral part of the Namibian nation.
Concluding Remarks
The denial of recognition is alarming for the Khwe, Ju|'hoan and !Xõó Traditional Authorities particularly because this means they will remain excluded from the local Land Boards in charge of allocating land to community members. The San leaders are very anxious about the ongoing domination of their people by other ethnic groups and thus about San marginalisation in local political affairs.
LAC
legal practitioners assisted by Adv. Andrew Corbett are currently preparing
affidavits for legal action against the Government.