AdatTemenggong Can be found in digests: Undang-undang Melaka, Pahang digest, Johore digest, digest of Kedah laws, Ninety-Nine Laws of Perak. the multilateral and regional agreements and customary international law that protect the rights of persons forced into migration. 3 Ibid at 151. Customary law is often not written down, because the people in the community know how things are usually done in that community. Customary law is recognized, not because it is backed by the power of some strong individual or institution, but because each individual recognizes the benefits of behaving in accordance with other individuals' expectations, _given_ that others also behave as he expects. Namibia. The Law Library holds various primary resources on Namibia. Found insideThis series is the result of that process, It has been facilitated but the Human Rights and Documentation Centre of the University of Namibia, through the former Dean of the Law Faculty, Professor Manfred Hinz. Found insideThis Brief explores the issues concerning customary law, traditional knowledge and intellectual property. Includes statistics. Contents. Appeal. The strength of this collection is that it covers an array of topics related to human trafficking and migration issues as related to international law. 3 themselves.11 Additionally, under customary international law,12 a treaty need not be in written form either.13 It should be noted that a treaty instrument may be called by different names (such as accord, charter, convention, covenant, statute and more) and found in various forms.14 Treaties are often at the centre of disputes between States, and these disputes often revolve around Law of Namibia. Customary Law Ascertained Volume 2 is the second of a three volume series in which traditional authorities in Namibia present the customary laws of their communities. The Report makes the following recommendations. Moreover, the paper advances that Article 144’s phraseology renders both customary In the same way that modern law is not always progressive for women, tradition is not always backward for women. 28 June - 4 July This is the discussion thread on Namibia and South Africa, as part of the Online Discussion "Customary law and institutions - Protecting or undermining community land rights in Southern Africa?. Some studies see the gender bias of customary law as an incorrigible trait, and advocate for a complete disengagement with customary law (Khadiagala 2001); (Whitehead and Tsikata 2003). The key thought behind customary law in foro is that it rests on being applied in the practice of the courts: the courts regard some of the standards they follow as legally binding, despite those standards not having a basis in other sources of law such as the constitution, statute, or case-law. Customary law was applied by traditional authority who presided over the traditional judicial structure known as chief’s court Mertens (1966: 11). Family law (CUSTOMARY LAW) division of property following divorce (Family law -CUSTOMARY LAW) divorce (Family law -CUSTOMARY LAW) property rights under customary law marriage. The Namibian Constitution came into force on the eve of the country’s independence as the supreme law of the land and, therefore, the ultimate source of law in Namibia. Following this definition, it should be noted that a custom may only reflect the common usage and practice of the people in a particular matter without having the force of law. Customary law can also be defined as the law which has from long and consistent usage, obtained the force of law. This is not often encountered by most of us. This publication defines the nature and characteristics of traditional justice systems, including issues related to jurisdiction, community involvement, composition, and a primary focus on restorative justice. An advocate of the rhetorical approach to the study of language criticizes Husserl's theories based on the logical approach Because the law does not recognise customary marriages, many people feel reform on this aspect of family law is needed. 7 Ibid. South Africa follows a pluralistic form of law. The law applicable to such disputes is the customary law of the area in which the marriage was concluded (14). --NGO initiatives --National San NGOs --Regional San NGOs --"The lost lands" : relocation from the central Kalahari game reserve --History of the central Kalahari game reserve --The relocation of the G wi and Gana (San) --The legal dispute ... This book examines theoretical and practical issues concerning the relationship between international law, time and history. The law delineates the offenses the customary system may handle. Daniels A.J. Kongwa v Kongwa (Appeal No. 4 Ibid at 37. Traditional authorities and customary institutions In most communal areas, traditional leaders, such as headmen, chiefs, indunas and kings, are fully involved in land-use planning and development. Roman-Dutch law, the system of law produced by the fusion of early modern Dutch law, chiefly of Germanic origin, and Roman, or civil, law.It existed in the Netherlands province of Holland from the 15th to the early 19th century and was carried by Dutch colonists to the Cape of Good Hope, where it became the foundation of modern South African law. composed of the following sources African customary law: religious laws (especially where there is a significant Muslim population); received law (common law or … Where it is applicable - domestic and family law disputes (eg Matrimonial law position). It is not uncommon, in regions other than the Caprivi, for a couple to marry in terms of both civil and customary law and to rely upon different legal and social norms, depending on the situation at hand. Box 6198 Kampala, Uganda Phone: +256 41 255808 Fax: +256 41 347743 LawAfrica Publishing (K) Ltd Co-op Trust Plaza, 1st Floor Lower Hill Road P.O. Treaty Law Article 103 UN Charter provides that obligations of member States under the UN Charter should prevail over other International agreements. These courts existed for long period of time. In most communal areas, traditional leaders continue to control the allocation and use of land, applying customary law … customary systems of law). 3 See also. There have been many significant law reforms concerning gender in the 9½ years since Namibia became independent, but family law and customary law issues have received relatively low priority. Kongwa v Kongwa (Appeal No. In its recognition of customary law as a source of law, the Constitution places customary law on the same footing as the common law. Common law, formalized in the 1990 Constitution of Namibia, incorporates elements of the Roman-Dutch law inherited from South Africa (Hinz 2010, 149; Ruppel and Ambunda 26 May 2011, 3) as well as public international law and any binding international agreements to which Namibia is a party (ibid., 54; Namibia 1990, Art. 4 Methodology and sources The Constitution of the Republic of Namibia enjoys hierarchical primacy amongst the sources of law by virtue of its article 1(6).19 This means that any law which is not in accordance with the Constitution is invalid. 1st Week. 5 Ibid. SAL1&2 (on-campus shelving) Namibia has a relatively new formal legal framework for land rights; in many cases, it continues to acknowledge aspects of customary law. Nyamu-Musembi 2003:27). Customary law may be subordinate to statutes and regulations. Adat Perpatih Matriarchal customary law Embodied in written form in digests of customary law from Sungau Ujong, Perak and Kuala Pilah. Customary law in Namibia : development and perspective ; Namibia : customary land law and the implications for forests, trees, and plants (final report) KSY499.3 .H56 2000. 1 Court system in Namibia. Four sources of law The Namibian Constitution is the Supreme Law of Namibia. 2002. Formerly known as the : International citation manual. 1. Sources of the law in Botswana’s legally plural system, include, since independence in 1966, the Constitution,Customarylaw,Commonlaw(sharedwithSouthAfrica),statelegislationand judicial precedent. 3/2016) [2018] ZMCA 26 (29 May 2018); A. b. c The Justice Sector and the Rule of Law in Namibia Framework, Selected Legal Aspects and Cases Oliver C. Ruppel & Lotta N. Ambunda. The law defines the role, … Many people combine civil and customary aspects of marriage, and therefore the current law negatively affects some people. 3/2016) [2018] ZMCA 26 (29 May 2018); A. A comprehensive and in-depth analysis of how courts in the countries of Commonwealth Africa decide claims under private international law. Using the life story method it allows women to tell their stories themselves and present their own understanding of their situation. How to participate . There are four sources of law in Namibia: (1) statutes (2) common law (3) customary law and (4) international law. the source of recognition of customary law is reciprocity, private property rights and the rights of IKS and customary law in particular constitute ways of knowing, which are pivotal in the processes of re-imagining people-land relationship (Ludwig & Macnaghten, 2019). C. CUSTOMARY LAW. van der Merwe State practice as one of the aspects of customary law is a continuous state practice of international acts over a period of time, governmental actions, law making and policy execution, government declaration and declaration, administrative practices and guidelines within states are good links and sources of state practice. 1 The Application of International Law in Namibia 2 Sources of International Environmental Law 2.1 International Conventions: Multilateral Environmental Agreements (MEAs) 2.1.1 How MEAs are made 2.1.2 The General Scope of MEAs 2.1.3 Typical Structure of MEAs 2.1.4 Compliance and Enforcement of MEAs 2.2 International Customary Law Namibia Law Journal 133 Customary law ascertained. • Third States are bound by the rules enshrined in treaty provisions when they become customary international law (Art. Family law (CUSTOMARY LAW) division of property following divorce (Family law -CUSTOMARY LAW) divorce (Family law -CUSTOMARY LAW) property rights under customary law marriage. Defining and characterising “customary law” would itself be the subject of an extended study. In many countries, usually, one or more types of customary law exist side by side with official law. This groundbreaking book distills vast data and hundreds of studies to shed new light on deprivations and constraints facing the voice and agency of women and girls worldwide, and on the associated costs for individuals, families, ... 3. Makes some special rules for black people which are applicable only to the area north of the Police Zone, as from August 1950. AFRICAN CUSTOMARY LAW: AN INTRODUCTION AFRICAN CUSTOMARY LAW: AN INTRODUCTION Dr. Peter Onyango (Dip, BA, BA, LIC, PHD) Published by LawAfrica Publishing (U) Ltd Office Suite No. For example, by virtue of the Native Administration Proclamation 15 of 1928 the South African Administration officially recognized the application of Customary Law in SWA/ Namibia. Volume 1. Once the sole source of law in pre-colonial sub-Saharan Africa, customary law has now been largely subordinated to domestic constitutional law, statutory law and common law. INTRODUCTION Namibia like other countries in Africa experienced colonialism. Length. [10] Chapter 9 is devoted entirely to remedies, which is a departure from the norm, but where relevant, appropriate remedies are indicated in the specific parts of the text. It contains the laws of the Bakgalagari, the Batswana ba Namibia and the Damara communities. The traditional justice system is formally recognized and incorporated into the Namibian legal system in the Community Courts Act of 2003 (Ruppel and Ambunda 26 May 2011, 16; Hinz 2008, 160). According to Hinz, the Act is intended to provide "some structural uniformity" to the implementation of customary law (ibid.). Found inside – Page 431reception of Roman - Dutch law , its history and characteristics , nature , sources and application of customary law , and legal dualism . People's Law and State Law: The Bellagio Papers. Some studies see the gender bias of customary law as an incorrigible trait, and advocate for a complete disengagement with customary law (Khadiagala 2001); (Whitehead and Tsikata 2003). [10] There are a number of different sources that are used to define the creation and force of law, though not all are used equally. We refer to this situation as legal pluralism. Found insidePractitioners of law at the Bar or on the Bench, law researchers and other professionals in public authorities, including parastatals, private companies and other ord this book useful in the performance of their professional tasks. Found inside – Page iiA starting point for the study of the English Constitution and comparative constitutional law, The Law of the Constitution elucidates the guiding principles of the modern constitution of England: the legislative sovereignty of Parliament, ... Customary law in Namibia by Manfred O. Hinz, 1996, Centre for Applied Social Sciences edition, in English - 2nd ed. Customary Law Customary Law is applicable to a section of Society Special Headman’s Courts and Codes Eg Code of Zulu Law in KwaZulu Natal. C. CUSTOMARY LAW. Box … This book combines local case studies with theories about efficient land management, the resilience of traditional leadership, the negotiability of customary law and the gap between judges' customary law and local practices. A Treaty is thus a type of contract that allows parties to voluntary enter into the agreement in order to be bound by its terms (Fitzmaurice and Elias, 2005: 10). An Includes more than 2,000 law and law-related periodicals, U.S Reports back to 1754, world trials dating back to the early 1700's, legal classics from 16th to the 20th centuries, the United Nations and League of Nations Treaty Series, all United States Treaties, the Federal Register from inception in … 2 Plot 10A, Jinja Road (Opposite NEMA House) P.O. Nyamu-Musembi 2003:27). In India, the law … Challenges the centrality of uti possidetis in the law of territory, with in-depth human rights law coverage of African secession. customary law means the customary law, norms, rules of procedure, traditions and usages of a traditional community in so far as they do not conflict with the Namibian Constitution or with any other written law applicable in Namibia; Sample 1. These four kinds of law are explained in more detail in the other factsheets in this series. unpacked, in the process identifying how these sources become part of Namibian law. She was previously a conference organiser with the Human Rights and Documentation Centre at the University of Namibia. Issue 30 of Namibia papers: Working documents, ISSN 0933-7806. Nonetheless, customary law continues to regulate family law matters, traditional authority, property rights and succession in many countries. -6 of 51- customary in character, meaning it had its sources in the practices and customs of the people.16 As colonial rule infiltrated the continent, so did new forms of colonial law.17 As a result, in many African nations, including Namibia, customary law remained in place, while civil law developed Training Manual for Traditional Authorities on Customary Law in South Sudan 3 BAC TO TAL OF CTTS TABLE OF CONTENTS Acknowledgements 4 Foreword 5 Acronyms 7 Introduction 8 Notes to Users of the Manual 8 Climate Setting/Self Introductions 10 Module 1: Customary Law in South Sudan 18 Module 2: The roles of traditional authorities and formal or statutory When the country instituted its constitution in 1996 after apartheid, customary law became a core part of the legal system. In the hope of finding some answers, given the back-handed treatment that Customary Law appears to have received from our courts over the years, I have decided to invite a teleological treatment of Customary Law from all South Africans, especially from those who care deeply about the development and mainstreaming of Customary Law. 2 2. General principles governing application of customary law Application of customary law should remain a matter of judicial discretion, but more exact guides to choice of law are necessary to bring certainty to an issue that is currently vague and confused. Customary Law Ascertained Volume 3 The Customary Law of the Nama, Ovaherero, Ovambanderu, and San Communities of Namibia Edited by Manfred O Hinz assisted by Alexander Gairiseb 2016 Customary Law Ascertained volume 3.indb 3 1/20/16 4:50 PM In Namibia, traditional authorities engaged in self-stating the law and the end result is the creation of law by the community that is binding upon the community members (and per one tribe on others who commit unlawful actions within the … Tensions between customary law and human rights – whether contained in a country's constitution or in international human rights instruments – are an established fact. 5 hours ago Law.uct.ac.za Related Item . According to the 2002 Communal Land Reform Act, customary land rights are allocated for life and, upon death, are re-allocated to the surviving spouse or child of the deceased (Namibia 2002, Art. 26). The Act is gender-neutral regarding the laws of inheritance (ibid.). Found insideThe Nature of International Law provides a comprehensive analytical account of international law within the prototype theory of concepts. All other laws must be in line with the Constitution to be valid. Customary Law Ascertained Volume 2 is the second of a three volume series in which traditional authorities in Namibia present the customary laws of their communities. Customary law and intellectual property system: the issues What is customary law? This book promotes discussion and understanding of customary law and explores its continued relevance in sub-Saharan Africa. In consequence, the Hereros' case for moral and A major source of law in Namibia is the statutes enacted by parliament. 78 What characterizes customary legal standards is that they are: (a) authoritative for the courts; (b) … Publisher. Found insideIn this book, four case studies describe civil society initiatives that have intervened in governance and brought about changes in institutional practice, aiming to secure strategic gender interests, with a global perspective on governance ... Report on activities from 1994 to 2002 [2003] Select. For example, by virtue of the Native Administration Proclamation 15 of 1928 the South African Administration officially recognized the application of Customary Law in SWA/ Namibia. Found inside – Page 42And the judge went on to say I have consulted the following standard works in connection with Herero customary law : Dr H ... to apply law , and for that matter it must be in a position to refer to reliable sources which contain the applicable law . 4. Customary Law Ascertained Volume 2 is the second of a three volume series in which traditional authorities in Namibia present the customary laws of their communities. These include: South-West Africa Official Gazette (1915-1990) The NID wishes to thank the following members of the Law Society who contributed to the contents of this booklet: E.V. customary law into a written form. The present study does not attempt to define “customary law”, but some general comments on its character may be helpful. Based on 8 documents. Once the sole source of law in pre-colonial sub-Saharan Africa, customary law has now been largely subordinated to domestic constitutional law, statutory law and common law. It contains the laws of the Bakgalagari, the Batswana ba Namibia and the Damara communities. Customary law is a key part of Indigenous Knowledge Systems (IKS) an important knowledge reservoir. Namibia. Found inside – Page 91The idea being that over time a new specifically Papuan 'underlying law' will evolve, in essence drawing the best from all legal sources.127 The Act is a ... For example, in the United States, the United Kingdom, and other countries, customary laws take the form of common law.Modern legal issues, such as the application of commerce laws to the Internet in the 1990s, started as customary laws. Common law is a term that refers to the law practiced in a country. Bok C. Light N.J. Tjombe C.J. Customary law to be applied in proper cases The courts of Botswana shall, within the limits of their jurisdiction, apply customary law in all cases and proceedings in which, by virtue of the provisions of this Act or any other law, customary law is properly applied and where it is not properly appl ied such courts shall apply the common law. 141 pages. 2 Ibid at 3. 144). is the law that has developed over the years in different communities in Namibia. A Council of Traditional Leaders is established to assist the President with the … We decided that we had to rethink custom. 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