How traditional leaders settle the disputes

Abstract

Abstract provided by author

In the first chapter, the dissertation looks into the introduction, historical background of the problem, the thesis statement of the research problem, the relevancy of the chosen topic, the purpose of the topic, the literature review, to the question to be answered and the adopted methodology

The second chapter dealt with the history of Uukwaluudhi Traditional Authority, the process of trial and the complication of double punishment. The third chapter focuses on the views of the senior and junior chiefs and headmen concerned group and the view of members in favour. The final chapter will look at the possible solution, recommendations and the conclusion of the paper

In Namibia, Customary law courts are established by the Communal courts Act, 10 of 2003, to conduct both Civil and Criminal cases. Article 66 of the Namibian constitution recognizes customary law in the Namibia, which means that there are two legal systems operating in Namibia, such as customary law and general law. The research was done in order to determine how disputes are settled in Uukwaluudhi tribe and find out how they deal with the problem of double punishment. Double punishment is a practice that is common and practiced in Uukwaluudhi traditional court, and not only in Uukwaluudhi area, but also in other Oshiwambo speaking traditional courts. The research found out that double punishment is a payment that has to be made in cases of murder, Assault with intent to do grievous bodily harm, i.e. in case if one lost an eye or any part of the body during the fight, and culpable homicide, where someone has been killed in car accident. The traditional Authority courts in general have no jurisdiction to try serious cases like murder, rape, robbery with aggravating circumstances, and theft, where the value of the stolen property is so high

Compensation has to be done regardless whether the offender has been already convicted by the criminal court and served his sentence for the same offence. It can also be applied even though there was no verdict of guilty in respect of that offence, after serving a sentence or after the offender has been either discharged or acquitted, he or she has to be summoned to the traditional courts for compensation

In case of murder and culpable homicide, compensation has to be paid to the relatives of the deceased person; it can be in a form of money or cattle. Some payments have to be given to the Traditional Authority's fund. In a case where one loses his eye or any part of the body, payment has to be made to the victim himself. The issue is whether such double punishment is not contrary to Article 12 (2) of the Namibian constitution, if it did, then the inquiry is whether it would be possible to declare that practice invalid. One can say that since there is compensation in civil matters and its determination is conducted through civil proceedings, and civil remedies have been imposed before, just like other remedies in the law of delict, then there is no double punishment. All traditional courts in Namibia as a whole there are no prisons; therefore, the sentence is always in a form of compensation

Based on the premise of the above statements, this paper will look at the circumstances leading to the settlement of disputes under discussion, how the tribal courts settle disputes within its jurisdiction against the accused person, what types of cases are triable by the tribal court which cases the tribal court does not have jurisdiction to conduct them, and how do they punish a person who has already been punished by the state court, how do they secure the attendance of the accused persons and witnesses before the tribal court and what procedure to be taken in case the accused or witnesses fail to appear in court on the agreed date, and what is the impact of the constitution on the impeding issues. Moreover, the paper will consider whether double punishment can be reversed. Finally, the paper will consider whether the traditional authorities agree and know that such conduct is contrary to the constitution and need the attention of the Parliament to make the law in such regard

As far as Namibia as a whole, there is no known existence of an established system of customary law case nor restatements or codification in Namibia. What exists is a number of self-stated legal text by various traditional authorities which are more a reflection of the internal developments of traditional communities and the people's own views on what their law should be like1 Every community in Namibia does have their own laws which may differ in one way or another and thus the community courts Act authorizes the minister of Justice to make regulations to ensure proper dispatch and conduct of proceedings of community courts and provides that different regulations be made in respect of different community courts