Könige dürfen abgesetzt werden

According to Section 8 of the Traditional Authorities Act 2000 (Act 25 of 2000 - TAA), the chief or any other head of a traditional community may be removed from office by the members of his or her traditional community in accordance with the customary law of that community. But then what if such law does not exist? In public international law we say: ‘No-one can be found guilty in terms of a law which does not exist’, or ‘Without a law, there is no punishment’ or simply “No crime or punishment without a law.“ (i.e. nullum crimen, nulla poena sin lege). This is what Article 12(3) of the Namibian Constitution is all about.

In Ondonga polity, there exists no customary law, rule or customary practice in terms of which the king may be removed. This then means that in at least Ondonga (and perhaps also in other Ambo polities) the king or any other head of a traditional community cannot be removed from office on the grounds of: (1) mental incapacity; and (2) gross misconduct.

“Mental capacity” (i.e. non compos mentis) means being able to make your own decisions. Someone lacking capacity - because of an illness or disability such as a mental health problem, dementia or a learning disability - to understand information given to them about a particular decision.

“Gross misconduct”, on the other hand, refers to behaviour that can get a person dismissed straight away from work because it is serious enough and possibly criminal. Illegal drug use at work, being drunk while on duty, stealing, sexual harassment are all examples of gross misconduct.

There are only two ways the Ondonga king may cease to be the king or may be replaced as such: (1) by death and (2) voluntary resignation. For example, in or around 1942, Ondonga king Nambala dha Kadhikwa voluntarily resigned and nominated Crown Prince Kambonde IV (Kambonde ka Namene) as his replacement or successor. Along the same lines, current Ondonga king Immanuel Elifas fingered Crown Prince Fillemon Shuumbwa sha Nangolo as his successor and or heir-apparent.

But if a (Ondonga) king is mentally incapacitated or he has committed a gross outrage such as a raping a child, there is no customary rule which makes provision for the removal of an Ondonga king on the grounds of mental or physical incapacity and gross misconduct. This is a totally unacceptable situation, which must be corrected immediately!

In terms of statutory law, such as the Council of Traditional Leaders Act 1997 (Act 13 of 1997 - CTLA), a king or any other head of a traditional community may be removed from the Council of Traditional Leaders (CTL) if his or her authority to represent his or her tradition authority is withdrawn by that authority by a written notice addressed to the relevant Minister (in this case that of Urban and Rural Development). His or her appointment as a member of CTL can also be terminated by that Minister in terms of Section 6(2) of CTLA if he or she is: (a) mentally incapacitated; (b) has been absent from three (3) consecutive CTL meetings without the consent of CTL; or if he or she is (c) guilty of gross misconduct (provided though that the Minister may only terminate that member’s appointment to CTL after giving him or her written notice to that effect and after affording him or her the right to be heard (i.e. audi alterem parte right).

A member of CTL can also be disqualified in terms of CTLA. Specifically, in terms of Section 4 of CTLA, no person shall be qualified to become or remain a member of CTL if he or she (a) is not a Namibian citizen; (b) is a member of the National Assembly; (c) is a member of the National Council; (d) is a member of a Regional Council established under Section 2 of Regional Councils Act 1992 (Act 22 of 1992); or (e) is a leader of any political party, whether or not such political party is registered in terms of any law. In this specific case, Section 4 of CTLA more - rather than less - operates like Section 15 of the TAA.

By Phil ya Nangoloh (Omkwanekamba) - Windhoek

(Phil ya Nangoloh ist ein engagierter, namibischer Menschenrechtsaktivist, der sich auf internationales Gemeinrecht sowie das namibische Grundrecht spezialisiert. Den Artikel schrieb er am 10. November 2018 und reagiert damit auf die andauernden Rechtsansprüche verschiedener Könige aus dem Ovamboland - insbesondere der Ondonga-König -, die in den vergangenen Monaten ihr angeblich traditionelles Recht auf die permanente Besetzung des Thrones eingeklagt hatten. Anm. des Red.)