Mbanderu case a stare decisis for Ondonga dispute?

By Dr Rihupisa Kandando



I have been an activist in the national service of the Namibian people for close to three-quarters of my life and at my own volition, I decided not to remain as such.

During part of that period, in exile, I had a privilege to read four volumes on selected writings of one of our respected great revolutionary leaders, Comrade Chairman Mao Tse-Tung of People's Republic of China who once remarked: “Learning from past mistakes to avoid future ones, cures the patient to save future generations”.

It is also where I learnt about the Marxist theory of historical and dialectical materialism, a theory postulating that the world is a unity of two opposites.

Despite being passive in public arena, I am also mindful of the Italian poet, Dante who once said: “The hottest places in hell are reserved for those who, in a time of great moral crisis maintain their neutrality”.

I suggest, we get off the fence, take up our swords and play our part with advisory opinions on the way forward to save our current and future succeeding Namibian generation from public pains occasioned by private greed, and ill-advised and selfish petty political considerations of the current ruling elite.

Cowards die many times before their death, as the proverb says.

This opinion piece is triggered by the article in Namibian Sun newspaper on 3 May 2019 titled “Kawana mum on Ondonga impasse”.

It has never been my cup of tea to cast aspersions and probity on the character, integrity and reputations of others, thanks to late Gerson Hitjevi Veii, late Uatjindua Ndjoze and late Dr Imbu //Uirab school of thought.



Doubt

Given the circumstances on how the attorney-general, Ministry of Housing, Local and Regional Development (now Ministry of Urban and Rural Development), Office of the President and the Namibian High Court dealt with the Mbanderu dispute in the past, I have iota of doubt as to whether they have the necessary acumen, energy, stamina and impeccable credentials to resolve the Ondonga impasse since they have already bound themselves with previous decisions, hence respectfully raising the issue of stare decisis.

It is in this context that this opinion piece must be seen, viewed and appreciated for what it is, to avert usage of short-term political expediency at the expense of the rule of law, contrary to the prescription and dictates of our democratic constitutional dispensation. The Mbanderu dispute has a similarity to the Ondonga, hence being used in this opinion piece as a case study for illustration purposes.



What went wrong?

It is a common practice that offices, ministries and agencies (OMA) seek legal advice from the constitutional office such as the attorney-general.

It is also a statutory requirement that when disputes in traditional authorities arise, the minister invokes section 12 of the Traditional Authorities Act (Act 25 of 2000) and sets up an Investigation Committee to ascertain the applicable customary law.

In the specific case of the Mbanderu dispute, the Investigation Committee was set up and came up with the findings and recommendations upon which the minister on the advice of the attorney-general acted on the 9 December 2009 by endorsing same as true reflection of Mbanderu customary law on leadership succession. In May 2010, the same attorney-general made a U-turn and gave advice to hold an election which in terms of the relevant statutory law (Act 25 of 2000) requires precedent conditions to exist.



Inconsistencies

In December 2014, the same attorney-general gave advice on the same subject to the minister not to recognise an aggrieved disputant and the matter was considered as finalised by the government.

Yet, for the fourth time, government acting upon a request from an aggrieved party (disputant) is still waiting since 9 December 2016 from the attorney-general to provide legal advice as to whether an aggrieved disputant that inter alia has sizeable following; operates from a different area of jurisdiction from the other recognised Mbanderu section, taking into account that the latter cannot claim to operate in multiple territorial jurisdictions; and sterile repudiation of Investigation Committee sanctioned Mbanderu customary law on leadership succession by the recognised section, whether these combined factors are not negation of section 3(4) of the Act to render the aggrieved disputant government recognition.

Surely, my dear respected brother Dr Kawana has recourse to ask the Namibian High Court in terms of article 80(2) for clarity interpretation, alternatively seeking interpretation from the Supreme Court as the they have done on the issues of corporal punishment in schools and constitutional relationship between the Office of the Prosecutor-General and Office of the Attorney-General.



Conflicted

It is pathetic that conflict of interest as well as concept of functus officio in relation to Dr Kawana as an attorney-general, and by definition who is an administrative official, Ministry of Urban and Rural Development, an administrative body does not feature in the vocabulary of the government circle.

A dispute which has been on the table for the last 11 years has not been amicably resolved with a Yes or No response especially to the followers of Paramount Chief Aletha Nguvauva – whose remaining in chains, I respectfully submit are self-inflicted because of waiting for liberation from politics as opposed to asserting their constitutionally guaranteed rights that are in compliance with the rule of law.

Let them continue to be prisoners of their own conscience until one day they fully appreciate and understand both the significance and the evolution of constitutionalism and the bill of rights.

It is unfortunate with due respect that the High Court has allowed a matter which is not a review application against the findings and recommendations of the statutorily-appointed Investigation Committee to be heard and issued an order that is diametrically in conflict with the applicable customary law of Ovambanderu on leadership succession as confirmed by the Investigation Committee. The minister failed to enter a declinatory plea to the court as part of a point in limine, and secondly aborted an appeal which he initially instituted to the Supreme Court.

This must be told in affirmative that the recipe for continued instability in that community lies at the doorstep of the government.

Instead of hearing the matter, the court should have declined because it is a common applicable procedure, for example in issues that relate to lack of jurisdiction; a contract that has an arbitration clause but that was not exhausted by parties; employment dispute that must first be lodged with labour commissioner before approaching the court etc. There is no need for academic binoculars to see these anomalies.



Advisory opinion

My patriotic and comradely advice to Drs Kawana and Peya Mushelenga, the attorney-general and minister of urban and rural development respectively on the two applications for designation of omukwaniilwa, which they are at liberty to consider if they so wish is the following:

This is a leadership dispute which as a matter of law must be dealt with in accordance with section 12 of the Traditional Authorities Act (Act 25 of 2000). Failure by the Investigation Committee to ascertain what the customary law prescribes, the minister is then at liberty subject to a request from communities to which he/she concurs to invoke section 5(10) of the Act. In the case of Ovambanderu, the minister on the legal advice of the attorney-general messed up when he invoked that provision in the light of overwhelming abundance of evidence what the customary law prescribes, and where uncertainty and ambiguity on the application were not in equation.

The government may wish to learn one or two things from that wrong application of law.

Secondly, once the Investigation Committee has pronounced itself and you have applied your mind, act promptly without delay unless interdicted by the aggrieved party pending determination of a review application brought before the court.

Thirdly, it is our sincere hope and wish that the judiciary this time around, unlike in the Mbanderu dispute, will be on alert not to entertain a matter which is not in their purview if the submission is not related to a review application against the findings and recommendations of the Investigation Committee.

Fourth, whether or not a traditional authority is significant in terms of numbers for voting purposes, it should not be a determining factor to resolve the dispute by the government, because justice delayed is justice denied.

Finally, on a lighter note, my father would always tell me that during his short stint in the Federal Republic of Nigeria as an international civil servant, his friends would jokingly tell him that “in Nigeria we don't speak politics, we speak militics”, presumably because of the military coup d'etat at that time that was the order of the day in one of our great African nations.

I hope in Namibia we sincerely subscribe to the rule of law but not the “rule of politics”.



*Dr Rihupisa Kandando is a Specialist Clinical Biochemist, lecturing Chemical Pathology and heading the Department of Pathology, School of Medicine, University of Namibia. He is expressing views in personal capacity.