Problems in the interpretation of Article 66 with respect to the validity of customary law

Abstract

Abstract provided by author

Namibia's constitution formally recognizes customary law as a legal system alongside common law. Customary law being the law that regulate the affairs of most of the Namibian population, has been put in principle on an equal footing with all other laws of the country as far as its constitutionality in concerned. Thus, in terms of the constitution, a pluralistic system of laws is accepted. To give effect to the provision of the constitution, parliament has enacted the Traditional Authorities Act 17 of 1995, amended by Act 25 of 2000 providing among others for the establishment of traditional authorities as custodians of customary law and for the recognition of traditional leaders. The Community Courts Act 10 of 2003 was also enacted to provide for the recognition and establishment of community courts, application of customary law etc. By officially recognizing customary law, the constitution ensures that the wishes of the people living their lives according to customary law are protected

Despite the above efforts, certain difficulties are encountered by courts when attempting to equate customary law with the provisions of the constitution, especially the equality provisions. Unconstitutional customary law should, however, be reformed and developed in accordance with the provisions of the constitution. Customary law as a whole cannot be declared unconstitutional because such law is recognized by the constitution. Although the constitution is now the foundation for the validity of customary law, customary law has existed even before the adoption of the constitution. Formal recognition of customary law further implies that the authorities or institutions entrusted with overseeing such law are also recognized.