Windhoek High Court Judge Thomas Masuku last week criticized former urban and rural development minister Peya Mushelenga for his failure to take decisive action in appointing a leader of the Witbooi clan.
“The Minister in this case has abdicated his decision-making powers by adopting the advice of the Attorney General (AG) lock, stock and barrel. According to the court, this constituted an impermissible abdication of responsibility and therefore risked being overturned as such,” the judge said when he criticized Mushelenga’s decision to appoint Hendrik Ismael Witbooi as kaptein of the Witbooi clan. Salomon Josephat Witbooi had asked to be recognized as a kaptein after the death of the previous acting kaptein Christiaan Rooi in October 2015. Ismael then entered the fray and also asked to be designated as a kaptein. Faced with the two candidacies, Sophia Shaningwa, then minister, appointed a commission of inquiry which recommended certain measures to be adopted, including an election as a last measure.
Mushelenga then succeeded Shaningwa as minister in 2019 and, faced with the two rival leadership bids, opted to seek the advice of the GA, who took the position that the customary law of the Witbooi clan did not allow. not a member of the family be named kaptein if that member is from the maternal side of the royal family.
Based on this advice, Mushelenga then disqualified Solomon’s candidacy and appointed his rival Ismael as kaptein. Dissatisfied with the decision, Salomon and four other people went to court to overturn the decision. Judge Masuku ruled in Solomon’s favor and reversed the decision to appoint Ismael as kaptein. He also rescinded the president’s recognition of Ismael as a traditional ruler in a proclamation issued in August 2019.
The judge said that since the previous minister had made a decision, which provided for the holding of elections, it was not open to the next minister to make a new decision. “This new decision was therefore illegal because it had become functus officio in this particular respect,” he pointed out.
He added that there is a difference between a traditional authority and a traditional council. An application for approval of designation by the Minister must be made by the traditional council or the council of chiefs, in accordance with section 5(1) of the Traditional Authorities Act, the judge said, adding that the authority traditional has no role in this regard. . However, the judge pointed out that while he finds it unnecessary to determine whether the customary law of the Witbooi clan does not allow descendants of the matrilineal side of the royal family to become successors and women to ascend to the chieftaincy of the clan, he It is clear that the ban on the petitioner from assuming the chiefdom was contrary to Article 10(1) and (2) of the Constitution.
“It is quite clear, without directly deciding the question, that from what I have said above, the customary law of the Witbooi clan, according to the respondent’s version, including the opinion of the prosecutor general, insofar as it does not recognize boys of the matrilineal line of the royal family, is unconstitutional. For this reason, it cannot be considered, in light of this inconsistency with the constitution, to have force and effect in this particular respect,” the judge said of the respondent’s assertion that Salomon did not is not responsible for chieftainship because of his ancestry. .
He observed that this led him to the conclusion that the Minister accepting the customary version of the respondents, without necessarily deciding the correctness of the customary law, violates the constitution in that it discriminates against women. . For that reason alone, the judge said, the minister’s decision to approve Ismael’s appointment cannot stand and must necessarily be reversed. He awarded the costs to the applicants according to the scale of a lawyer in charge of the investigation and two mandated lawyers.