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- Prof. Dr. Manfred O. Hinz
- Head of Department: Public Law and Jurisprudence
- Faculty of Law, University of Namibia
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- Structure of presentation:
- Traditional justice in international perspective
- Observations on the perception of justice
- The current reality of traditional justice in Namibia
- The challenges: National reforms and human rights
- Traditional justice and the legal profession
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- Traditional justice in international perspective
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- Traditional justice, is justice administered by traditional leaders in
the conventional legal anthropological sense, ie. by community leaders
who hold legitimacy because of their foundation in inherited concepts
and rules of their communities.
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- They apply local law (that may be solely the law of the community:
- African customary law (or indigenous law), or a hybrid of local and
state law
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- Ethnographical records show that the traditional administration of
justice can be highly formalised.
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- The same records also inform us about traditional justice platforms
that do not require much or no formalities at all.
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- Traditional justice and other forms of non-state justice!
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- Domestic statutory law informs us about the different degrees of
control executed over the entities administering traditional justice.
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- The scope of independence or control reaches from unregulated dualism
to integration.
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- (1) To abolish (strong modern monism);
- (2) To leave unregulated (unregulated dualism);
- (3) To regulate (regulated – weak or strong - dualism);
- (4) To integrate into the modern structures (weak modern monism);
- (5) To make the traditional level the overarching level of governance
(strong traditional monism).
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- The right to culture, cultural diversity
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- 2 Observations on the perception of justice
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- Traditional and informal justice (T&IJ) enjoy the interest of many
international organisations: UNDP, World Bank; OHCHR.
- T&IJ enjoy acceptance by many people. Many people, in actual fact
prefer traditional and informal justice to the state-administered system
of justice.
- Why?
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- T&IJ:
- Closer to the people;
- Closer to the problems of the people;
- Allow local languages;
- Are able to assess local problems;
- Apply the rules of the people;
- Are cheaper;
- Are faster;
- Provide local peace.
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- 3 The current reality of traditional justice in Namibia
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- Namibia moved from
- an inherited system of strongly
regulated dualism before independence;
- to a system of weakly regulated to almost unregulated dualism after
independence;
- with the expectation to have a relatively strong regulated dual system
in place as soon as the Community Courts Act, 10 of 2003, (CCA) will be
fully implemented.
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- The CCA was enacted in 2003 after research that started soon after
independence and discussions that have lasted, with different degrees of
intensity, up to now.
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- Objectives of the CCA:
- To unify the legal framework, in which traditional justice operated;
- To standardize certain aspects of the traditional courts;
- To bring them in line with certain standards applying to state courts;
- To provide for structures to make traditional courts lower courts in
terms of the Constitution of Namibia;
- To secure for the application of human rights in the administration of
traditional justice.
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- Main (partly controversial) features:
- Structure of traditional court systems;
- Traditional justices and assessors to be appointed by Minister;
- Jurisdiction;
- Application of customary law;
- Legal representation;
- Procedural law;
- Enforcement of orders;
- Appeal;
- Compensation
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- Does traditional justice work in Namibia?
- Where it works and where it does not really works.
- Traditional courts and Magistrates’ courts
- Workload of traditional courts
- Do we need the CCA?
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- 4 The challenges: National reforms and human rights
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- What is important for the people who are subject to traditional
justice?
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- Locally accepted normative framework of authority and rules;
- National recognition / acceptance, including rules on conflict of rules;
- National recognition / acceptance of rules to develop and make rules;
- Local professionalism;
- Secured access;
- Locally accepted handling of issues;
- Locally accepted concept of justice;
- Accepted remedy of disputes;
- Transparency;
- Proper reflection in formal and extra-mural legal education.
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- 5 Traditional justice and the legal profession
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- There is:
- Resistance;
- Ignorance, and sometimes, sorry for this;
- Arrogance
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- How to explain this?
- Image of the lawyer;
- Narrowness in legal education
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- The image of the lawyer is changing - worldwide
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- Growing recognition of arbitration
- Growing recognition of the need to assist in reconciliation
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- Translation into formal legal education and developments of
need-tailored legal out-reach programmes are the additional challenges!
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Notas
