Title:

Jurisprudential aspects of proclaiming towns in communal areas in Namibia

Author(s):
Publication Year:
2009
Abstract:

The proclamation or declaration of local authority areas in communal areas in Namibia has recently raised jurisprudential questions regarding the powers of both the central and raditional government structures. All communal lands in Namibia are under the jurisdiction of Traditional Authorities. This means that the declaration of local authority areas in communal land amount to a withdrawal of land from communal land, making such withdrawn land a local authority area. Thus, the declaration impacts directly on the powers and jurisdictions of Traditional Authorities. This paper considers the jurisprudential aspects of such declarations. From a legal-philosophical and anthropological perspective, the question whether traditional authorities have the jurisdiction over land that has been declared local authority area lies in the plurality of legal regimes and the concept of tradition versus modernity. The paper considers the power relationship between traditional and central government authorities through a network of statutes which regulate the declaration of areas as local authorities, and argues that the current position is a perpetuation of plurality-blind apartheid laws. Taking a philosophical and anthropological perspective, the paper considers in detail the controversy surrounding the ownership of communal land in Namibia. The paper also explores the plurality of legal codes in Namibian land law, and argues that although modernity is an inevitable reality, tradition cannot be ignored. Thus, the law regarding the proclamation of local authority areas has to be weighed up against community values and customary laws in general. Statutory law, as it stands in Namibia, cannot be applied in a way that negates traditional norms; however, although the prescribed procedures seek to strike a balance between the two legal systems, this equilibrium has not been adequately achieved. The conflict between laws will persist in an uneasy pluralism, therefore.

Publisher:
Faculty of Law, University of Namibia
Type:
Master of Laws candidate
Item Type:
Thesis
Language:
en