THE EFFECT OF CUSTOMARY MARRIAGE CERTIFICATES ISSUED BY TRADITIONAL
AUTHORITIES IN CAPRIVI AND KAVANGO
BY
SISWANISO ESME MOLEFE
200610775
DISSERTATION THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE
REQUIREMENTS OF THE AWARD OF THE DEGREE OF BACHELORS OF LAWS
FACULTY OF LAW
UNIVERSITY OF NAMIBIA
NOVEMBER 2010
SUPERVISOR: PROF MANFRED O. HINZ
ABSTRACT
After independence, traditional authorities did not receive any guidance about their role in the
new Namibia. They were left to operate as before. They continued to hold court, to allocate
land and to perform other tasks. What changed was that there was uncertainty for traditional
authorities as to how they should work. This affected in particular the administration of justice
in traditional courts.
However, the government realized that there had to be some kind of framework for traditional
authorities. In 1995 the Traditional Authorities Act was passed by Parliament. The 1995 Act was
replaced by the Traditional Authorities Act 25 of 2000. The 2000 Act provides for establishment,
composition and defines the powers, duties and functions of traditional authorities.
Section 3 of the Act outlines the powers, duties and functions of traditional authorities. Section
3 (3) (c) gives traditional authorities the power to make laws. In terms of these powers, duties
and functions provided by the Act, traditional authorities in Caprivi and Kavango have
introduced a law of giving customary marriage certificates to bring customary law marriages in
par with civil law marriages. Many have benefited from these customary marriage certificates.
Most significantly, the rudiments of the problem of this paper lie in the issuing of customary
marriages certificates by traditional authorities in Caprivi and Kavango. This is with regard to
the criteria used in issuing the marriage certificate: the marriage certificate is issued even
where a husband takes more than one wife whereas the majority of Caprivi and Kavango
communities are opposed to the issuing of the marriage certificate where the husband takes
more than one wife. The contention is that, such issuing discriminates women. The certificate is
2
also issued where one spouse is deceased, which entails that the issuing of customary marriage
certificates in Caprivi and Kavango needs regulation.
The crux of this paper is to look at the process under which these marriage certificates and the
response of people in Caprivi and Kavango to the issuing of these certificates. The aim is to find
out if these customary marriage certificates are effective and if they need regulation looking at
how they are structured and the way under which they are issued.
3
SCHEDULE A
DECLARATION
“I the undersigned, hereby declare that the work contained in this dissertation for the purpose
of obtaining my degree of LL B is my own original work and that I have not used any other
sources than those listed in the bibliography and quoted in the references.”
Signature:
Date:
4
Supervisor’s Certificate
I, Manfred O. Hinz hereby certify that the research and writing of this dissertation was carried
under my supervision.
Signature:
Date:
5
To my late parents Kahundu and Simunja Molefe.
6
ACKNOWLEDGEMENT
I owe a debt gratitude to many people for their various contributions during the research and
study that led to this dissertation and I wish to extend my thanks to them.
First, I would like to thank by supervisor, Prof Manfred Hinz for the unconditional assistance
and devotion he provided to the welfare and progress of this dissertation. I am indebted to him
for his motivation, guidance and support, for without it, this dissertation may not have
materialized.
My homage and thanks to Mafwe Royal Establishment and the staff, without the interviews
conducted there, this dissertation would not have been possible. I also wish to thank the Chief
Clerk at Ngweze Tribal Khuta, Katima Mulilo for providing me with the necessary documents
that helped me with the dissertation.
I am also thankful to Rebecca Kambundu the foreman of the Sambyu Traditional authority and
Mutero Sikerete who provided me with relevant information during the field research. I also
wish to thank Ms Angela Mupuma, my interpreter during the field research. My thanks also go
to Mr. Ruben Mutuku, who provided me with relevant information to my topic of research.
My special thanks to the interviewees in Caprivi and Kavango where my research was
conducted.
7
I am also grateful to my grandfather Zephania Molefe, Kenneth Mwilima and Jackson Ntengu
for checking the Mafwe tradition.
To my brothers and sisters, you have been an inspiration. Many thanks to Nchimunya Mwape
and Malilo Mwilima for being loyal and delightful friends over the past five years.
8
TABLE OF CONTENTS
Abstract……………………………………………………………………………………………………………………………….2
Schedule A…………………………………………………………………………………………………………………………..4
Supervisor’s Certificate………………………………………………………………………………………………………..5
Dedication……………………………………………………………………………………………………………………………6
Acknowledgements……………………………………………………………………………………………………………..7
Table of contents…………………………………………………………………………………………………………………9
CHAPTER 1: INTRODUCTION……………………………………………………………………………………………….12
BACKGROUND TO THE TOPIC……………………………………………………………………………………………..12
STATEMENT OF PROBLEM………………………………………………………………………………………………….13
METHODOLOGY…………………………………………………………………………………………………………………15
Method of collection and analysis of data………………………………………………………………………….15
Group discussions………………………………………………………………………………………………………………16
Interviews………………………………………………………………………………………………………………………….17
Place of research………………………………………………………………………………………………………………..17
STRUCTURE OF THE PAPER…………………………………………………………………………………………………18
CHAPTER 2: CUSTOMARY MARRIAGE CERTIFICATES: THE PROCESS IN CAPRIVI…………………19
BACKGROUND…………………………………………………………………………………………………………………..19
THE PROCESS OF ISSUING CUSTOMARY MARRIAGE CERTIFICATES…………………………………….20
The rationale behind the issuing of customary marriage certificates…………………………………20
Procedure and requirements to be met for the customary marriage certificate to be
issued………………………………………………………………………………………………………………………………..21
9
Circumstances where the marriage certificate has been refused to be issued………………….24
The functions of the customary marriage certificate…………………………………………………………25
Divorce…………………………………………………………………………………………………………………………….26
CHAPTER 3: CUSTOMARY MARRIAGE CERTIFICATES: THE PROCESS IN KAVANGO…………….27
BACKGROUND…………………………………………………………………………………………………………………..27
THE PROCESS OF ISSUING CUSTOMARY MARRIAGE CERTIFICATES…………………………………….27
The rationale behind the issuing of customary marriage certificates…………………………………28
Procedure and requirements to be met for the customary marriage certificate to be
issued………………………………………………………………………………………………………………………………..28
Circumstances where the marriage certificate has been refused to be issued…………………..31
Divorce……………………………………………………………………………………………………………………………..32
CHAPTER 4: THE CUSTOMARY MARRIAGE CERTIFICATE ISSUED………………………………………..33
RATIONALE BEHIND THE ISSUING……………………………………………………………………………………..33
COMPARISON OF THE CUSTOMARY MARRIAGE CERTIFICATE ISSUED IN CAPRIVI AND
KAVANGO…………………………………………………………………………………………………………………………35
Caprivi………………………………………………………………………………………………………………………………35
Kavango……………………………………………………………………………………………………………………………37
THE DIFFERENCE BETWEEN THE CUSTOMARY MARRIAGE CERTIFICATES ISSUED………………37
CHAPTER 5: THE FINDINGS……………………………………………………………………………………………….39
CAPRIVI……………………………………………………………………………………………………………………………39
Problems faced with the issuing of customary marriage certificates………………………………..39
Suggestions………………………………………………………………………………………………………………………40
10
KAVANGO………………………………………………………………………………………………………………………….41
Problems faced with the issuing of customary marriage certificates………………………………….41
Suggestions……………………………………………………………………………………………………………………….41
EVALUATION OF THE FINDINGS………………………………………………………………………………………….42
PROPOSED LAW BY THE LAW REFORM AND DEVELOPMENT COMMISSION ON CUSTOMARY
MARRIAGES……………………………………………………………………………………………………………………….43
Response of the people in Caprivi to what has been recommended by the Law Reform and
Development Commission on customary marriages………………………………………………………….44
Response of the people in Kavango to what has been recommended by the Law Reform and
Development Commission on customary marriages………………………………………………………….45
CHAPTER 6: CONCLUSION AND SUGGESTIONS…………………………………………………………………..46
LIST OF FIELD NOTES………………………………………………………………………………………………………….48
BIBLIOGRAPHY………………………………………………………………………………………………………………….49
ANNEXURES………………………………………………………………………………………………………………………50
11
CHAPTER 1: INTRODUCTION
BACKGROUND TO THE TOPIC
After independence, traditional authorities did not receive any guidance about their role in the
new Namibia. They were left to operate as before. They continued to hold court, to allocate
land and to perform other tasks. What changed was that there was uncertainty for traditional
authorities as to how they should work. This affected in particular the administration of justice
in traditional courts.
However, the government realized that there had to be some kind of framework for traditional
authorities. In 1995 the Traditional Authorities Act was passed by Parliament. The 1995 Act was
replaced by the Traditional Authorities Act 25 of 2000. The 2000 Act provides for establishment,
composition and defines the powers, duties and functions of traditional authorities.
Section 3 of the Act outlines the powers, duties and functions of traditional authorities. Section
3 (3) (c) gives traditional authorities the power to make laws. In terms of these powers, duties
and functions provided by the Act, traditional authorities in Caprivi and Kavango have
introduced a law of issuing customary marriage certificates to bring customary law marriages in
par with civil law marriages.1
Most significantly, the rudiments of the problem of this paper lie in the issuing of customary
marriages certificates by traditional authorities in Caprivi and Kavango. This is with regard to
the criteria used in issuing the marriage certificate; the marriage certificate is issued even
1
This is in pursuance with the comment given by my supervisor given in consultations.
12
where a husband takes more than one wife whereas the Caprivi and Kavango communities are
opposed to the issuing of the marriage certificate where the husband takes more than one
wife. The contention is that, such issuing discriminates women. The certificate is also issued
where one spouse is deceased, which entails that the issuing of customary marriage certificates
in Caprivi and Kavango needs regulation.
Customary law marriages never enjoyed legal recognition prior to independence in 1990,
primarily because of their polygamous nature. The Native Administration Proclamation 15 of
1928 is a piece of legislation from the pre-independence era to have enormously impacted on
customary law marriages.
In addition to the above, the Law Reform and Development Commission have also put forward
proposals for giving full legal recognition to customary marriages so as to bring them on par
with common law marriages. The Law Reform aims to provide for the full legal recognition of
marriages concluded under the customary law through a few key proposals. However, the Bill is
not yet law and may or might not go through.
STATEMENT OF THE PROBLEM
Traditional authorities in Caprivi and Kavango have developed in issuing customary marriage
certificates in order to recognize and give effect to customary marriages. These customary
marriage certificates are issued by Traditional Authorities in the view of recognizing customary
law marriages, give benefits to couples and bring them in par with civil law marriages. However,
there are certain procedures under which these customary marriage certificates are issued as
the process must be in accordance with customary laws formulated by Traditional Authorities.
13
There have been a lot of contentions with regard to the issuing of customary marriage
certificates: some communities in Caprivi and Kavango are in favour with the issuing of
customary marriage certificates and some are not. A number of reasons emerged during the
research as to why the issuing of customary marriage certificates is acceptable to the Caprivi
and Kavango people. The main reason for accepting is that, customary marriage certificates
recognize and gives effect to customary marriages. It is more of bringing customary marriages
in par with civil marriages. Another reason is that the issuing of marriage certificates has helped
in minimizing property grabbing when one spouse is deceased.
Traditional Authorities in Caprivi and Kavango emphasized during the field research that the
most bitter and most intractable disputes they often deal with concern inheritance. This is why
the traditional authorities in Caprivi and Kavango are in favour with the issuing customary
marriage certificates even where the husband takes a second wife because polygamy is allowed
in their culture. There are other reasons cited which emerged during field research and will be
discussed later in the paper.
There are also reasons as to why the issuing of customary marriage certificates is not
acceptable to the people in Caprivi and Kavango. The main reason is that, the issuing of
customary marriage certificates would mean they are moving towards a civil administration and
thus, culture is no longer upheld. Another reason is that in most cases where the certificate is
issued after one spouse has died, it usually seem like the traditional authorities are marrying
the surviving spouse to the deceased’s money or estate. Some even call it a gamble. Some
reasons will be discussed later in the paper.
Most significantly, the rudiments of the problem of this paper lie in the issuing of customary
marriage certificates by traditional authorities in Caprivi and Kavango. This is with regard to the
criteria used in issuing the marriage certificate; the marriage certificate is issued even where a
14
husband takes more than one wife whereas the Caprivi and Kavango communities are opposed
to the issuing of the marriage certificate where the husband takes more than one wife. The
contention is that the issuing of customary marriage certificates needs regulation.
METHODOLOGY
The practical research for this study was done from 13 July 2010 to 22 July 2010, 26 August
2010 and 15 to 16 September 2010. The research was done in Chinchimani; this village was
identified because it is where the Royal Establishment of the Mafwe Traditional Authorities is
situated. The second village is Kanono, also situated in Caprivi region. The third location of
research is Kayengona where the Sambyu traditional authority is situated. The fourth location is
Canchana, also situated in Kavango. The majority of research in Kavango was done in Rundu as
it was found that the Sambyu Traditional Authority have a foreman who represents the
traditional authority in town. The location of these areas of research will be explained in more
detail hereunder.
Method of collection and analysis of data
As regard to the method of collection and analysis of data, total number of 20 group and
individual interviews were conducted during the field research. Reference was made to reports
from UNAM. Specifically the Customary Law IV Report on the effect of customary law marriages
issued by Traditional Authorities which was written by me. Much emphasis was put on the key
recommendations made by the Law Reform and Development Commission on Customary Law
Marriages and this helped in structuring the questions for interviews.
15
Group Discussion
The group discussions concentrated on how members of the community live and was aimed at
understanding the lifestyle, knowledge and values of the people in Caprivi and Kavango.
Three group discussions with community members took place. The first meeting was held at
the traditional court of the Mafwe traditional authority in Chinchimani. The meeting was
attended by two senior councilor and three traditional councilors of the Mafwe traditional
authority. What transpired from this group meeting is that the issuing of marriage certificates
was introduced to recognize and give effect to customary marriages, and to bring them on the
same footing as civil marriages. It was noted that the certificate is issued even where a husband
takes a second wife and where one spouse is deceased.
The second group discussion took place at Kanono. The meeting was attended by four
community members. Only two people in this group had the customary marriage certificate.
The members indicated that the certificate should only be issued to monogamous marriages.
They also contended that the marriage certificate should only be issued where both spouses
are still alive because if it is issued after one spouse is deceased, it will open door for fraud and
it will also seem as if the surviving spouse is marrying the deceased spouse’s money or
property. Apart from all the critics, the members of the community stated the customary
marriage certificate has been quite useful as it has helped alleviate property grabbing.
The third group discussion was held in Canchana. The meeting was attended by six community
members. During the meeting, some members were happy with the issuing of customary
marriage certificate because it shows that customary law is still recognized in Namibia since
these certificates are given credit in pension institutions like GIPF. Some members were not
16
happy with the issuing of marriage certificates by traditional authorities because culture is no
longer upheld. In other words, our traditional authorities are now applying civil laws to culture.
Interviews
Interviews formed an integral part of the research process. Interviews were held with members
of the communities in Caprivi and Kavango. 17 interviews were conducted for the purposes of
this dissertation. It was a bit difficult to conduct interviews in Kavango, because I was not
familiar with the place and interviews had to be conducted in Kwangali which needed an
interpreter. Some people refused to comment because they have been refused to be issued the
certificate and some were angry with the government because the issuing of customary
marriage is making them move away from their culture, especially polygamy.
Places of Research
The field research was done in Kavango and Caprivi. The research was necessary because the
Traditional Authorities in Caprivi and Kavango are the first Traditional Authorities to have
embarked on issuing customary marriage certificates in Namibia. In addition to the above, the
Mafwe and Sambyu communities still believe much in culture and tradition, and this is the first
field research on the subject matter in Namibia.
The central problem in this paper is that the people in Caprivi and Kavango found the issuing of
the marriage certificate unregulated because it is issued where a husband takes a second or
third wife and where one spouse is deceased.
17
Structure of the paper
This dissertation deals with the issuing of customary marriage certificates in Caprivi and
Kavango. The first chapter sets out the problem statement and the background on the topic.
The chapter also has a section on collection method and analysis of data, and places of
research.
The second chapter entails the factual findings of the research in Caprivi. The chapter will also
look at the history and background of the Caprivi community specifically the Mafwe Traditional
Authority. The third chapter will concentrate on the factual findings of the research in Kavango.
The chapter will also look at the history and background of the Kavango community, specifically
the Sambyu Traditional Authority.
The fourth chapter will look at the customary marriage certificates issued in Caprivi and
Kavango. The chapter will critically analyse the certificates issued looking at the similarities and
differences of the marriage certificates issued in Caprivi and Kavango.
The fifth chapter will evaluate the findings, looking at the problems faced by traditional
authorities when issuing the customary marriage certificate and the suggestions advanced by
the people in Caprivi and Kavango. The chapter will touch on the key proposals made by the
Law Reform and Development Commission on customary marriages, and will also look at the
response of people towards these key proposals.
The sixth chapter is the conclusion which will entail the general findings of the dissertation and
the appropriate suggestions the author will think are appropriate. It will contain the findings
and conclusion to the dissertation.
18
CHAPTER 2: CUSTOMARY MARRIAGE CERTIFICATES: THE PROCESS IN
CAPRIVI
BACKGROUND
The Caprivi is home to the Mafwe, Mashi, Masubia and Mayeyi. 2 All the four tribes have
traditional authorities in Caprivi Region. This study concentrates on the Mafwe Traditional
Authorities, a traditional authority found at Chinchimani, 65 kilometers, south-west of Katima
Mulilo, in the Caprivi Region. The supreme leader of the Mafwe traditional authority is Litunga
Mamili George Simasiku.
According to Malan3, different historical events of the invasion and occupation of Caprivi by the
neighbouring Lozi of Zambia and the Kololo from South Africa shaped the destiny of the local
people in Caprivi, as well as the nature of their culture. Matrilineal traditions of the Lozi and
patrilineal institutions of the Kololo diffused to the Mafwe, Masubia and associated
communities, rendering their culture a unique combination of matrilineality and patrilineality.
Families are established through marriage in Caprivi and such marriage is validated by the
paying of lobola. Marriage in Caprivi is intended to be a permanent union. Polygamy is allowed
in all traditional authorities in Caprivi. For instance, in terms of the laws of Mashi, Mayeyi and
Masubia; a man is entitled to have more one wife.4
2
Malan, J.S. (1995) Peoples of Namibia. Wingate Park: Rhino Publishers. 55.
Malan (1995):55.
4
Hinz, M. O. (Ed.) (2010) Customary law ascertained: The Customary law of the Owambo, Kavango and Caprivi
Communities of Namibia. Windhoek: Namibia ,Scientific Society. 447, 483 and 510.
3
19
THE PROCESS OF ISSUING CUSTOMARY MARRIAGE CERTIFICATES
The rationale behind the issuing of customary marriage certificates
Before and after independence, no customary marriage certificates were issued by Traditional
Authorities. Only a few years later after independence, after the acknowledgement of
traditional authorities as custodians of customs and customary law was when traditional
authorities started to issue customary marriage certificates. 5 Couples could just marry
traditionally provided both families sat and negotiated the marriage without having to go to the
Traditional Authorities to obtain a marriage certificate. 6
Members of the Mafwe Traditional Authorities indicated during the field research that the
reason why they started issuing customary marriage certificates is because of the laws of
Namibian which is mostly dominated by European laws. The certificate is issued for inheritance
purposes in the sense that if the deceased was working and left a wife and children, the
certificate will be used as proof that the couple was married under customary law. 7 In a
nutshell, the certificate is there to protect the surviving spouse.
Another reason why the Mafwe Traditional Authorities started to issue customary marriage
certificates is because some couples do not want to marry under civil law but prefer to marry
under customary law.8
5
Hinz, M. O. (2008) “Strengthening Women’s rights: The need to address the gap between customary and
statutory law in Namibia” in Ruppel, O. L. (Ed.). Women and Custom in Namibia: Cultural practical versus Gender
Equality. Windhoek: MacMillan Education Namibia. 93-94.
6
Marriage negotiation included lobola discussion and parental consent from both families.
7
Field note 1
8
Field note 1
20
Another reason is that, customary marriage certificates have been over a few years helpful for
pension fund institutions like GIPF in paying out money to the surviving spouse where one
spouse is deceased. This also includes the administration of the deceased’s estate. Customary
marriage certificates are usually requested by the Magistrate for the administration of the
deceased’s estate where the couple was married under customary law. 9
Procedure and requirements to be met for the certificate to be issued
The couple wishing to obtain a customary marriage certificate must have been married
traditionally for the certificate to be issued. Both families of the couple must have consented
to the marriage and lobola negotiations must have been concluded. Thus, the marriage
certificate will be issued if the couple is accompanied by their parents or a family member who
will represent parents to consent to the issuing of the marriage certificate. There must be
witnesses who were present when the marriage took place to testify to the existence of the
customary marriage. All these people must be there to testify to the existence of marriage
between the two intending parties who wish to obtain a customary marriage certificate. 10
The certificate can be issued if both the intending parties are still alive or where one of the
spouse is deceased. In the case where both spouses are still alive and want to marry under
customary law, they must go with their parents or any family representative and witnesses to
the Traditional Authorities for the marriage certificate to be issued. 11
Where one spouse is deceased and the certificate is needed by the Magistrate or any pension
institution, the Traditional Authorities will issue the marriage certificate provided the surviving
9
Field note 1, 2 and 3.
Field note 1, 2, 3, 4, 5 and 6
11
Field note 1, 2 and 4
10
21
spouse is accompanied by a representative from the deceased spouse’s family. The surviving
spouse must also be accompanied by her or his parents or any close family member who will
represent her or his parents.12
There is no age limit with regard to the issuing of the marriage certificate. Traditional
Authorities require consent from both parents of the couple regardless of age of the intending
spouses. The Mafwe Traditional Authorities believe that some people marry at a young age
because of suffering and poverty. Thus, if both parties agree that they want to get married; the
marriage certificate will be issued provided such minor understands the consequences of what
he or she is entering into. Age is not a big issue but what matters the most is consent from
parents of the intending couple.13
The marriage certificate can be issued where the intending parties are not related to certain
degrees, for instance brothers and sisters or first cousins cannot marry. It is no longer the same
as in the past where blood related parties were allowed to marry provided that the couple
would be cleansed. Unfortunately, things have changed thus marriage between blood related
parties to a certain degree is prohibited and no marriage certificate will be issued to such
people. This usually happens where the parents of both intending spouses have objected the
marriage.14
The certificate is also issued even where the husband takes a second wife whether his first
marriage was under customary law or civil law and a marriage certificate has been issued to it.
The same requirements will apply that the parties must have been married traditionally and
that parents from both sides must have consented to the marriage. The intending spouses must
12
Parents do not necessarily have to be there but a brother or sister or uncle can represent them provided that the
parents have consented to the marriage.
13
Filed note 1.
14
Field note 1 and 2.
22
also go with witnesses to the Traditional authorities to obtain the customary marriage
certificate and this includes parents from both sides or any family member. 15
The reason behind this is because polygamy is still part of the Mafwe culture and cannot be
done away with. Further, they do so to protect and recognize the second wife that she is not
just a concubine but also married to the husband. They contended that it will seem unfair to
recognize one wife and leave the second wife who is probably been married for some years and
has children with him.16
However, the majority of people who were interviewed apart from the Traditional Authorities
are not in favour with polygamous marriages. They do not want the customary marriage
certificate to be issued when a man takes a second wife but should only be issued between one
husband and one wife, unless if the first marriage is dissolved or one spouse is deceased. If a
husband has two or three wives and has children with all of them, he must only get a marriage
certificate with the first wife and not all of them. The other two wives are expected to respect
the first wife.17
In some cases, you find that the husband only gets a certificate with a second wife and not the
first wife. Most of the people interviewed said that this is also unfair because it shows that the
husband has only been deceiving the first wife and did not intend to marry her. Some were of
the view that the husband may opt to get a certificate with the second wife because it could be
that the first wife does not treat the husband well or maybe the husband is not a good husband
(selfish) and does not want to let the first wife go. 18
15
Field note 1 and 7
Field note 1 and 7
17
Field note 2, 3, 4, 8, 19 and 20.
18
Field note 2, 3, 4 and 5
16
23
In the case where the husband dies, the first wife who has a marriage certificate with the
deceased husband is the one who will manage the estate of the husband on behalf of the other
wives and children. If the husband was working, the children of the second and third wife will
be under the first wife’s name and be treated as if they are her biological children. 19
After all the requirements have been met, the customary marriage certificate will be issued.
The secretary of the Khuta will write the marriage certificate and give the intending spouses to
sign which will then be signed by the Induna and the secretary. However, before the signatures
are endorsed, the traditional authorities will ask the intending parties questions to prove their
eligibility to marry.20
Circumstances where the marriage certificate has been refused to be issued
There have been circumstances where the certificate has been refused to be issued by
traditional authorities. The consent of parents for the customary marriage to be concluded and
the certificate to be issued plays a very important under customary law. During the field
research it was established that there are some people who have been refused to get the
customary marriage certificates from the Mafwe traditional authority. 21
This usually happens where no proper marriage negotiations have been done, for example both
families of the intending parties did not sit to discuss lobola negotiations. Thus the traditional
authorities will refuse to issue the customary marriage certificate if consent from parents was
19
Field note 2, 4, 6, 19 and 20
Field note 1
21
Field note 1, 2, 3, 4 and 8
20
24
not obtained for the intending couple to stay together and no member of family is there to
testify to the existence of the marriage 22
In accordance with the above, some interviewees said that the Traditional Authorities have a
right to refuse to issue the marriage certificate because nowadays people, especially the youth
marry without the consent of their parents and in most cases they only need the marriage
certificate for the sake of money in case one spouse dies. 23 Thus for a customary marriage
certificate to be issued custom and tradition must have been complied with, otherwise, the
traditional authorities will not issue the marriage certificate.
The functions of the customary marriage certificate
The main function of the marriage certificate is to show the existence and legality of the
customary marriage. In the case where one spouse dies, the certificate is used to recognize the
surviving spouse. In other words, the marriage certificate is issued to protect the surviving
spouse in cases of inheritance or property distribution. 24
The marriage certificate is said to have the same effect as that of the marriage concluded under
civil law. This is because, the certificate can be used to obtain a loan, buy a house and get a full
birth certificate for a child.25
Divorce
22
Field note 1, 2, 3, 4 and 8
Field note 1, 2, 3, 4 and 8
24
Field note 1, 2, 3, 4, 7 and 8
25
Field note 5, 7, 8 and 20
23
25
The Mafwe Traditional Authority respect marriage very much and do not believe in divorce. It
was said earlier in the paper that marriage is intended to be a permanent union. Thus, they do
not issue divorce certificates but only intervene where there is a problem in the division of
properties where the marriage has failed.26
Usually, divorce is a family matter which is discussed among families only. The couple will only
approach Traditional Authorities if the family is unable to help. But still, no divorce certificate
will be issued by the Traditional Authorities. They will only advice the couple to reconcile. 27
Where there is a problem in the division of properties upon divorce, the Traditional Authorities
can intervene. This is where the marriage certificate will come in because it will prove that the
couple is indeed married under customary laws. Thus it will play a very important role where
the husband does not want to share the properties with the wife. Each party must take what he
or she brought into the marriage.28
CHAPTER 3: CUSTOMARY MARRIAGE CERTIFICATES: THE PROCESS IN
KAVANGO
26
Field note 1
Field note 1
28
Field note 1 and 2. Customary marriages are always out of community of property. It is always a 50/50 division of
property upon dissolution of marriage.
27
26
BACKGROUND
The people of the Kavango region are divided into five politically distinct tribal characterized by
considerable cultural and linguistic differences. We have the Mbukushu, Sambyu, Mbunza,
Gciriku and Kwangali.29 The field research was done on the Sambyu community. However,
before one moves to the process of the issuing of customary marriage certificates one must
look at the origin and history of the Sambyu people.
The Sambyu people arrived in Kavango region from Mashi region in the second half of the 18 th
century. Mashi region is situated in South-western Zambia. Sambyu ancestors moved from the
Manyo region in the vicinity of the Zambezi River and discovered river which was already
inhabited by Bushmen and Tshaube.30
The supreme leader of the Sambyu people is Hompa Angeline Matumbo Ribebe. The supreme
leader is the chief who exercises public authority with assistance from confidential advisors.
With the help of advisors, councilors and the community, the chief settles cases affecting the
community and promulgates new laws and repeals old ones. 31
THE PROCESS OF ISSUING CUSTOMARY MARRIAGE CERTIFICATES
The rationale behind the issuing of customary marriage certificates
29
Malan (1995) 35.
Hinz (2010): 315.
31
Hinz (2010): 315.
30
27
According to the Sambyu Traditional Authority, previously, there were no marriage certificates
issued by traditional authorities. The reason why they started issuing the marriage certificates
was because there was no control of customary marriages. They were then asked by the
Namibian Government to keep a record of customary marriages. They were instructed if
possible to register births and marriages. In other words, if they wanted customary marriages
to be recognized, they had to start issuing documents showing the existence of such marriages.
32
Another reason why traditional authorities in Kavango started issuing customary marriage
certificates was because of divorce. This is because there was always a problem in the division
of properties when a couple divorces. The issuing of marriage certificates would play a big role
in the division of properties if one spouse refuses to give the other spouse matrimonial
properties. In addition to the above reasons was inheritance. Inheritance also played a big role
in the introduction of Traditional Authorities issuing customary marriage certificates because
there was property grabbing by the deceased’s family even if the deceased left a wife. 33
Another reason behind the issuing of customary marriage certificates is that before the
certificates, women were abused and discriminated. There was corruption because there was
nothing used to show proof that a woman was married to the husband in cases of inheritance.
The marriage certificate has sort of empowered women as it gives them the right over the
husband’s property if he is deceased.34
Procedure and requirements to be met for the certificate to be issued
32
Field note 12 and 13
Field note 12 and 13
34
Field note 12, 13, 14 and 15
33
28
Where both parties are alive, the first thing that they must do is to get a letter of consent which
must be signed by both parents of the intending spouses that they agree that the couple may
get the customary marriage certificate and that they are consenting to it. The letter of consent
must be sent to the Traditional Authorities, then they will determine the date when the couple
can come to get the customary marriage certificate. When the date is determined, the couple
must come with both parents and two witnesses each to come and testify to the marriage. The
witness can be a friend or relative and must be above 21 years old. If there are no parents, you
should go with a guardian or relative.35
The certificate must be signed by the couple and witnesses to testify that the customary
marriage was contracted in the presence of both parents and signed by witnesses. Parents
must only sign the letter of consent and not the marriage certificate. After the marriage
certificate, according to the Sambyu culture there must be a celebration to show that the
parties are now married.36
Where one spouse is deceased, the marriage certificate can be issued even though they have
experienced some difficulties in this matter. However, it was established during the field
research that the Sambyu traditional authority has introduced a better procedure to avoid
these difficulties.
A declaration is now to be issued where one spouse is deceased to show that the parties were
married under customary law. There are also requirements for this declaration:
35
36
•
The widow must come with her parents and in laws
•
They must also come with the ID of the deceased and widow
•
They must come with the death certificate of the deceased
Field note 12
Field note 12
29
•
If there is no marriage certificate, they must come with a letter from their headman that
they were married under customary law and it must be signed by parents
•
They must also provide the number of children born out of this marriage including extramarital children.37
However, in most cases, a marriage certificate has been issued even where one spouse has
died. Usually, they look at the deceased’s will as to what he would have wanted. Apart from
that, the surviving spouse must come with her parents and the deceased spouse’s parents. 38
Age does not really matter in the Sambyu community but the minor must be atleast 14 years of
age. What matters the most is consent from both parents otherwise, the marriage will not go
through. Consent must be obtained from both parties and parents. 39
However, it seems as if the Sambyu Traditional Authorities is trying to set the age limit for
marriage which is 21. They prefer the intending spouses to be 21 and if they are minors, they
must be consent from both parents for the certificate to be issued.40
The marriage certificate will not be issued to a blood related couple unless if their relation is
above the prohibited degree. Thus, a brother and sister cannot marry but second cousins can
marry as long as there is consent from parties and their parents. Apparently, these are the
marriages that usually work because the husband will not abuse the wife since they are related.
41
37
Field note 13, 15 and 16
Field note 13, 15 and 16
39
Field note 13
40
Field note 12
41
Field note 13, 14 and 15
38
30
A man can get three marriage certificates if he takes a second and third wife. This is because it
will help in the distribution of property if the husband dies. However, if the Bill comes into play,
polygamy will be abolished.42
During the research, it seemed that some people were of a different view with regard to
polygamous marriages. According to some interviewees, no second certificate should be issued
if a husband takes a second wife. They say that this should be done to protect women. 43
Once the traditional authority is satisfied that all requirements have been met, the secretary
will issue the certificate will must be signed by the intending parties and a representative from
the traditional authority.44
Circumstances where the marriage certificate has been refused to be issued
For the marriage certificate to be issued by the Sambyu traditional authority, requirements
must have been met by the intending parties. The traditional authority will not issue the
marriage certificate if there is no letter of consent from parents and there are no witnesses to
testify to the marriage.
Divorce
42
Field note 12
Field note 13 and 14
44
Field note 12 and 13
43
31
Divorce cannot be settled among the families alone. According to the laws of the Sambyu
traditional authority, married people who have problems in their marriage shall be entitled to
go to the traditional authority to dissolve their marriage. 45
The couple intending to divorce must go to the Traditional Authorities with the same witnesses
they went with when they obtained the customary marriage certificate. Divorce will only be
granted if one spouse is having an adulterous relationship with others or if there is abuse in the
marriage. The one who wants to divorce must pay the divorce costs. If the cause of divorce is
not a serious one, they will only advice the couple and tell them to go back home. 46
The divorce certificate is not issued the first time the divorcing couple approach the Traditional
Authorities but time is always given to the divorcing couple to try and work things out before
the final decision is made. Once the Traditional Authorities are satisfied that the marriage
cannot be retrieved, the divorce will go through and a divorce certificate will be issued which
must be signed by the couple and witnesses. The custody of children will be determine and
division of property. The division of property is 50/50 but they mostly look at the circumstances
of the case, for example, the marriage might have just lasted for a month. 47
CHAPTER 4: THE CUSTOMARY MARRIAGE CERTIFICATE ISSUED
RATIONALE BEHIND THE ISSUING
45
Hinz (2010): 383.
Field note 13
47
Field note 12
46
32
Before independence, no customary marriage certificates were issued by Traditional
Authorities. Couples could just marry traditionally provided both families sat and negotiated
the marriage without having to go to the Traditional Authorities for the marriage certificate. 48
A serious note was made during the 2001 Census. The results of the 2001 census shows that
about 19 % of Namibians were married under civil law, 9% were married under customary law
and 7 % were staying together as husband and wife. 49 In Caprivi 34 % are married under
customary law and 5 % are married under civil law. In Kavango 29 % are married under
customary law and 13 % are married under civil law. 50
Apart from the above figures by the 2001 census, reference was also made to the statement
made by the Founding Father, Dr Sam Nujoma on 28 September 1998 where he explained the
need for law reform to bring customary law in harmony with the Constitution. In his statement,
the Founding Father emphasized that since our Constitution provides a clear and unambiguous
on the status of women, the government should eradicate the injustices of the past that have
been perpetrated against women. Thus the aim of the Namibian government should be to
reconcile existing customary laws and practices with the provisions of the Constitution. 51
As part of an effort to achieve the above, traditional authorities in Caprivi and Kavango
embarked on giving full legal recognition to customary marriages though issuing customary
marriage certificates.
48
Marriage negotiation included lobola discussion and parental consent from both families.
Hubbard, D. (2000) Summary of the Proposed changes to the Law on Customary Marriages. Windhoek: Legal
Assistance Centre.
50
Hinz (2008): 96.
51
Hubbard (2000).
49
33
With reference to the above, members of the Mafwe Traditional Authorities indicated during
the field research that the reason why they started issuing such certificates is because of the
Namibian law which is mostly dominated by European laws. The certificate is issued for
inheritance purposes in the sense that if the deceased was working and left a wife and children,
the certificate will be used to prove that the couple was married under customary law. 52
According to the Sambyu Traditional Authority, previously, there was no marriage certificates
issued. The reason why they started issuing the marriage certificates was because there was no
control of customary marriages. Thus the Namibian Government required them to keep a
record of customary marriages. They were instructed if possible to register births and
marriages. In other words, if they want customary marriages to be recognized, they must start
issuing documents showing the existence of such marriages. 53
Another reason was divorce. This is because there was always a problem in division of
properties when a couple divorces. The issuing of marriage certificates would play a big role in
division of properties if one spouse refuses to give the other spouse properties. In addition to
the above reasons is inheritance. Inheritance also played a big role in the introduction of
Traditional Authorities issuing marriage certificates because there was property grabbing by the
deceased’s family even if the deceased left a wife. 54
Another reason behind the issuing of customary marriage certificates is that before the
certificates, women were abused and discriminated. There was corruption because there was
nothing used to show proof that a woman was married to the husband in cases of inheritance.
52
Field note 1
Field note 12 and 13
54
Field note 12 and 13
53
34
The marriage certificate has sort of empowered women as it gives them the right over the
husband’s property if he is deceased.55
COMPARISON OF THE CUSTOMARY MARRIAGE CERTIFICATES ISSUED IN CAPRIVI AND
KAVANGO
The main aim of this chapter is to look at the customary marriage certificates issued by
traditional authorities and carefully evaluate them. This is with regard to whether these
customary marriage certificates are the same or not. Three copies were obtained during the
field research of this dissertation. 56 Two copies were obtained from Caprivi and one copy was
obtained from Kavango.
Caprivi
It was established during the field research that there had been some developments and
improvements with regard to the customary marriage certificate traditional authorities in
Caprivi embarked on issuing. At first, the certificate was not well formalized. One could say, it
was not per se a marriage certificate but a declaration of marriage or a confirmation of
marriage or an acknowledgement of marriage.
If we look at Annexure 2, the customary marriage certificate starts with words:
“To whom it may concern”
55
56
Field note 12, 13, 14 and 15
Annexure 2, 3, and 4
35
Then it continues to say that:
“This traditional authority do here by confirm that Mr.……married Mrs……”
One can assume from the wording of the marriage certificate that it was a letter of
acknowledgement that confirmed and acknowledged the existence of a customary marriage.
The other feature established on the marriage certificate is that it was all written. In other
words, it was in a form of a letter because there was no heading showing that it was a
customary marriage certificate. Secondly, there was no provision for the intending spouses to
sign. The certificate was only signed by the Ngambela, Induna and the secretary. 57
Annexure 3 on the other hand shows better improvement of the marriage certificate issued by
traditional authorities in Caprivi. Even though the certificate starts with the words
“To whom it may concern”
It is atleast formalized because it is more of a form where one has to fill in the right words or
names without having to write everything like a letter as opposite to Annexure 1.
The marriage certificate certifies the existence of the customary marriage certificate of
intending spouses even though it uses the words
“Mr.……was/is still married to Mrs.…..”
There is also a provision for intending spouses to sign the marriage certificate. The place of
marriage is also mentioned and it is also signed by the Induna and secretary. 58
57
58
Annexure 2
Annexure 3
36
Kavango
The customary marriage certificate issued in Kavango is different from that issued in Caprivi.
The certificate is a declaration in respect of traditional marriage. The marriage certificate starts
with words like
“hereby acknowledge that Mr.…..has married to Mrs……”
Thus, in other words, the marriage certificate acknowledges the existence of the marriage
between the intending spouses. The parents of the intending spouses are mentioned that the
two parties married in the presence of both parents. The place of marriage is also mentioned.
However, there is no provision for intending spouses to sign to the marriage certificate. 59
THE DIFFERENCE BETWEEN THE CUSTOMARY MARRIAGE CERTIFICATES ISSUED IN CAPRIVI
AND KAVANGO
There is a difference in the wording of the marriage certificates issued in Caprivi and Kavango
even though they are intended to mean the same thing. The certificate issued in Caprivi starts
with the words “to whom it may concern” whereas the certificate issued in Kavango starts with
words “declaration in respect of traditional marriage”.
In addition to the above, the certificate in Caprivi is issued to certify that the two parties were
or are still married whereas the certificate in Kavango is issued to acknowledge that the two
parties have married each other. One can conclude that, the certificate in Kavango is issued at
the time when the two parties marry each other whereas in Caprivi the certificate is issued
where one spouse is deceased or where the two parties have been married for some time.
59
Annexure 4
37
CHAPTER 5: PROBLEMS ENCOUNTED AND SUGGESTIONS
38
During the field research outstanding results were found. Different opinions and views were
extracted which reflect how the people in Caprivi and Kavango feel about the customary
marriage certificates issued by traditional authorities.
CAPRIVI
Problems faced with the issuing of the customary marriage certificates
The Mafwe Traditional Authorities and the majority of people interviewed indicated during the
field research that a lot of problems have been faced with regard to the issuing of these
certificates. The main problem is where the certificate is issued after one of the couple has
passed away (deceased). This is because, in most cases the family of the husband may refuse to
go the Traditional Authorities to testify that indeed the couple was married under customary
law and that they consented to the marriage. Some parents usually argue that they were not
away of the marriage since no lobola discussions were made. This shows that parental consent
plays a big role in the issuing this certificate. This is why the Mafwe Traditional Authorities
suggest that couples should obtain the marriage certificate when both are still alive to avoid
complications.60
Suggestions
60
Field note 1, 2 and 3
39
It has become known to people that the marriage certificate issued by Traditional Authorities is
very useful as it is used in many ways. Thus, the Mafwe Traditional Authorities suggest that
people should obtain the certificate when they are both still alive to avoid complications. This is
because; it usually looks like they are marrying the surviving spouse to the deceased spouse’s
money if one spouse has died. The husband must be alive to testify that he wants to marry the
woman and wants to make her his wife.
Other interviewees suggested that before parties obtain the marriage certificate, they should at
least stay three to four years together as married in order to get to know each other better.
People must take their time and not rush things.
During the field research it was also ascertained that Mafwe people prefer customary marriages
over civil law marriages. This is because no custom is followed under civil law marriages as the
intending parties can bring their friends as witnesses to their civil law marriages whereas under
customary law, parties must go with their parents or a close family member like a sister or
brother.61
Another reason is that, customary law marriages are not complicated like common law
marriages because both families are always involved. Even where the couple wants to divorce,
the family is always involved.
KAVANGO
61
Field note 1, 2 and 3
40
Problems faced with the issuing of marriage certificates
According to the Sambyu Traditional Authority, ever since they started issuing customary
marriage certificates they have faced several problems. Among these problems is when a man
marries more than one wife. In such case, the problem usually arises when the man’s family
prefers one wife over the other one. In the end you will find that the family may not consent
and testify to such marriage. 62 Another problem faced is the issuing of marriage certificates
after one spouse has died. They have received complaints from lawyers that they must stop
issuing certificates after one spouse has died. This is why they have started issuing declarations
when one spouse has died than marriage certificates.63
Another problem is that sometimes they are forced to issue duplicates if a couple’s marriage
certificate is destroyed in fire. And this usually results in them issuing a new customary
marriage certificate because they are not exposed to modern technology like computers.
Suggestions
The Sambyu Traditional Authorities were suggesting that they want marriage certificates to be
issued only when both parties are still alive. They want to do way with issuing marriage
certificates when one spouse has died. They also recommend that where a man marries more
than one wife, the marriage certificate must be issued only to the first wife as the children of
the second wife can under the first wife if the husband dies.
62
63
Field note 12 and 13
Field note 12
41
Apart from the above, issuing of customary marriage certificates by Traditional Authorities has
brought a lot of changes. The certificate binds the marriage as a spouse cannot leave the
marriage anyhow or anytime. Further, a number of divorces have decreased because the one
who divorces has to pay. The marriage certificate has also given power to Traditional
Authorities when it comes to court trials because they have something to decide on.
EVALUATION OF THE FINDINGS
There seem to be no regulation on the issuing of customary law marriage certificates by
traditional authorities in Caprivi and Kavango because the certificate is issued even if the
husband takes a second wife or third wife. It appears that the certificate being issued by
traditional authorities Caprivi and Kavango is not a certificate but an acknowledgement or
declaration that the customary marriage exists and is valid in the eyes of traditional authorities.
64
In most cases you find that the so called marriage certificate is not signed by the couple or
witnesses but only signed by a representative from the traditional authorities. 65 The marriage
certificate is issued even where one spouse is deceased. The marriage certificate is also issued
where the man takes a second wife and where the husband is deceased. Traditional Authorities
in Caprivi are in favour of polygamy and may not move away from the practice any time soon.
In Kavango, traditional authorities seem to be trying to move in the same line with the
requirements for civil marriages. They do not allow polygamous marriages. For the certificate to
be issued, introduction and consent from both parents is needed. If the traditional authorities
are satisfied that both families are consenting, the chief will issue the marriage certificate that
should be signed by the couple, witnesses and the chief. It was established from the field
research that the certificate can only be issued to a monogamous marriage; the certificate will
64
65
This is because the certificate states “To whom it may concern”. A copy will be attached to prove this.
Annexure 2 and 4
42
not be issued if the husband attempts to take a second wife without divorcing the first wife.
They also prefer to issue the certificate where both spouses are present because if they issue
the certificate after one spouse has died it will look like they are marrying the surviving spouse
to the deceased’s estate or money.
Customary marriages in Caprivi seem to be not regulated as compared to Kavango. Traditional
authorities in Kavango have introduced a letter of declaration to be issued where one spouse
dies than issuing a marriage certificate. In addition to the letter of declaration, is a divorce
certificate which is issued when a couple wants to divorce. They have also formulated
procedure in terms of which a divorce certificate can be issued. This practice is not found in
Caprivi among the Mafwe Traditional Authorities as they do not issue divorce certificates.
PROPOSED LAW BY THE LAW REFORM AND DEVELOPMENT COMMISSION ON CUSTOMARY
MARRIAGES
In an attempt to provide for a national framework receptive to all marriages, the proposed law
by the Law Reform and Development Commission lays down several requirements, namely:
•
There must be free consent of intending spouses. No one can be forced into a
customary marriage; marriage shall be entered only with free and full consent of
intending spouses.66
•
A minor must obtain consent as is required in terms of the Marriage Act of 1961 67. In
order to be married under customary law, both man woman must be 18 years of age. A
66
67
Article 14 (2) of the Namibian Constitution.
Act No. 25 of 1961
43
person below the age of 18 must obtain consent from both parents and the
government.
•
Marriages between parties related within prohibited degrees of relation as shall be
prohibited
•
It shall be prohibited for parties to an existing customary law marriage to contract a
subsequent marriage under common law. The proposed law will allow a person to marry
one person once at a time regardless of the type of marriage involved. Polygamy will no
longer be allowed. But polygamous marriages that took place before the proposed law
comes into play will still be recognized.
Response by the people in caprivi to what has been recommended by the Law Reform and
Development Commission
As the above findings show, there are contradictions between the recommended law and what
is being practiced by the people in Caprivi. The Mafwe Traditional Authorities are not in favour
with what is being recommended by the Law Reform and Development Commission. They say
that it is discriminatory in the sense that the recommended law requires them to do away with
some of their traditions e.g. polygamy. Even if it becomes law, they will not follow it. 68
Some interviewees were of the view that you cannot mix customs of different tribes in one
book because one custom cannot be applied to another tribe or community. For example, the
customs of Ovambos cannot be applied on the people in Caprivi. They are different; each
community has their own customary laws. 69
68
69
Field note 1
Field note 1, 3 and 4
44
Response of the people in Kavango to what has been recommended by the Law Reform and
Development Commission
The Sambyu Traditional Authorities do not have a problem with what is recommended by the
Law Reform and Development Commission. If the Bill succeeds, they will follow it. The law
recommended is good as it will help minimize problems faced in issuing these certificates. They
think that the Bill will regulate the procedure under which these certificates can be issued. 70
CHAPTER 6: CONCLUSION AND SUGGESTIONS
We have seen through the paper that this dissertation was looking at the effect of customary
law marriage certificates issued by traditional authorities in Caprivi and Kavango. The field
research was conducted in July 2010; the collection of data was done through interviews and
group discussions.
70
Field note 12, 13, 14, 15, 16 and 17
45
Customary law marriages never enjoyed legal recognition prior to independence in 1990,
primarily because of their polygamous nature. The traditional authorities in Caprivi and
Kavango through the powers vested in them by section 3 (3) (c) of the Traditional Authorities
Act of 2000 have undertaken to issue customary marriage certificates in order to give effect to
customary marriages and to alleviate inheritance disputes.
There are procedures that are followed for the traditional authorities to issue these marriage
certificates. However, it must be noted that customary law is mostly unwritten and varies from
community to community. The same can be said to the customary law in Caprivi and Kavango.
Thus, the rules and procedure under which these customary law marriage are different.
For instance, in Caprivi the intending parties must go with their parents to the traditional
authorities to testify and consent to the marriage for the traditional authorities to issue the
marriage certificate. Whereas in Kavango, the intending parties must go with a letter of consent
from their parents consenting to their marriage so that the traditional authorities issue the
marriage certificate.
With reference to the above, functions for the customary marriage certificates were
established during the field research. The customary marriage certificate functions as the proof
of existence for the customary marriage. It is used to buy a house and obtain a loan from the
bank. It has also been used for getting a full birth certificate for a child. It is also used in cases
where one of the spouses is deceased, for the surviving spouse to be recognized as the
surviving spouse and get money from the deceased spouse’s estate.
We have also seen in Chapter 5 that the customary marriage certificates issued in Caprivi and
Kavango are different as compared to civil marriage certificates. They all intend to mean the
46
same thing but the wording is different. We have seen that the certificate issued in Caprivi
certifies a customary marriage whereas the certificate issued in Kavango acknowledges the
customary marriage.
Thus, two questions that come to one’s mind are: are the customary marriage certificates
issued by traditional authorities in Caprivi and Kavango effective? Do they need regulation? In
order to answer this, one must look at the advantages and disadvantages of these customary
marriage certificates including the problems that people have experienced with them.
In conclusion, customary marriage certificates are effective because they have helped to
alleviate inheritance problems. The certificates offer protection to widowed women who are
likely to be discriminated by property grabbing. They have also helped to promote equality in
society. However, a bit of regulation is needed for these marriage certificates. The certificates
must be formalized and should only be issued when both parties are still alive. Where one
spouse is deceased, a declaration should be issued as suggested by people in Kavango.
Otherwise it will seem like you are marrying a dead person.
LIST OF FIELD NOTES
Field note 1:
13 July 2010; Mafwe Traditional Authorities; Linyanti Khuta; Chinchimani
Field note 2:
13 July 2010; Mr. M. N. Community member; Chinchimani
Field note 3:
13 July 2010; Mrs. D. N. community member; Chinchimani
Field note 4:
13 July 2010; Mr. C. S. community member; Chinchimani
Field note 5:
14 July 2010; Mr. Z. M. community member; Kanono
47
Field note 6:
14 July 2010; Mr. K. M. community member; Kanono
Field note 7:
14 July 2010; Mr. A. M. community member; Kanono
Field note 8:
14 July 2010; Mrs. C. M. community member; Kanono
Field note 9:
15 July 2010; Mrs N. M. community member; Katima Mulilo
Field note 10:
15 July 2010; Mrs. A. M. community member; Katima Mulilo
Field note 11:
16 July 2010; Mr. S. S. community member; Katima Mulilo
Field note 12:
19 July 2010, Foreman Rebecca Kambundu; Sambyu Traditional Authority;
Rundu.
Field note 13
20 July 2010, Former Senior Traditional Councilor Mr. M. S. Sambyu
Traditional Authority; Rundu.
Field note 14:
21 July 2010; Group discussion; Canchana
Field note 15:
22 July 2010; Mrs. L. M. community member; Rundu
Field note 16:
22 July 2010; Mr. M. M. community member; Rundu
Field note 17:
22 July 2010; Mr. F. M. community member; Rundu
Field note 18:
26 August 2010; Mr. N. S. community member; Katima Mulilo
Field note 19:
15 September 2010; Mr. N. N. community member; Chinchimani
Field note 20:
16 September 2010; Mrs S. N. community member; Chinchimani
BIBLIOGRAPHY
Felton, S. (2000) Traditional Authority in the new Namibia: A training manual. Windhoek:
Centre for Applied Social Sciences.
Hinz, M. O. (Ed.). (2010) Customary law ascertained: The customary law of the Owambo,
Kavango and Caprivi communities of Namibia. Windhoek: Namibia Scientific Society.
48
Hinz, M. O. (2008) Strengthening women’s rights: The need to address the gap between
customary law and statutory law in Namibia in Ruppel, O. C. (Ed.) Women and custom in
Namibia: Cultural practical versus Gender equality? Windhoek: MacMillan Education Namibia.
Hubbard, D. (2000) Summary of the Proposed changes to the Law on Customary Marriages.
Windhoek: Legal Assistance Centre.
Malan, J. S. (1995) Peoples of Namibia. Wingate Park: Rhino Publishers.
Molefe, E. S. (2009) Certificates issued for customary marriages in the Mafwe community in
Caprivi region. Windhoek: UNAM. (Customary Law IV)
The Law Reform and Development Commission. (2004) Report on Customary Marriages.
Windhoek: Legal Assistance Centre.
The Meanings of Inheritance. (2005) Perspectives on Namibian Inheritance Practices.
Windhoek: Legal Assistance Centre.
TABLE OF STATUTES
Native Proclamation 15 of 1928
The Namibian Constitution Act 1 of 1990
Traditional Authorities Act 25 of 2000
ANNEXTURES
Annexure 1
University of Namibia
49
Faculty of Law
LLB Programme
LLB Dissertation
My name is Siswaniso Esme Molefe a fifth year Law student at the University of Namibia. I am doing a
research on the topic below under the LLB Programme LLB Dissertation and would be grateful if you
help with my research by answering the following questions.
Research Topic: The effect of Customary Marriages Certificates issued by Traditional Authorities in
Caprivi and Kavango.
Questionnaire 1
1. What is the essence of issuing customary marriage certificates?
2. What procedure and requirements that need to be met for the customary marriage
certificate certificates to be issued?
3. Is there any age limit for the customary marriage certificate to be issued?
4. What happens if the intending spouses are related to each other?
5. What if the husband has more than one wife, will the certificate be issued?
6. Do you face any difficulties or problems in issuing these marriage certificates?
7. How effective are these marriage certificate, do they carry any function?
8. Are there also certificates about the dissolution of customary law marriages?
50
9. What evidence must be established for the divorce order to be granted?
10. How is the property distributed upon divorce?
11. What do you think of the key proposals on customary marriages made by the Law
Reform and Development Commission?
Thank you for your time………..
Annexure 2
51
Annexure 3
52
Annexure 4
53
54