Namibia

Discrepancias/vacíos entre derecho escrito y derechos consuetudinarios

The Administration of Estates Act of 1965, the Native Administration Proclamation of 1928, the Intestate Succession Ordinance of 1946 and the Administration of Estates [Rehoboth Gebiet] Proclamation of 1941 all contain provisions that violate the constitutional principle of non-discrimination (14).
Although Article 66 of the Constitution provides that both customary law and common law, in force at independence, will be legitimate as long as they do not conflict with the Constitution or any other statutory law, sex discrimination is still present in some aspects of customary law.
While Article 66 also states that common or customary law may be repealed or modified by Parliament, discriminatory practices need to be challenged before a court before such laws can be declared unconstitutional. So far, there have been no court challenges to customary law on this ground since independence (14).
Although only civil marriages are recognized under statutory law, it is not uncommon, in regions other than the Caprivi, for a couple to marry and rely upon different legal and social norms, depending on the situation at hand. It also occurs that a man is married under civil law to one wife and is cohabiting with a second wife under customary law. When the husband dies, the woman married according to civil law often lays claim to a portion of the deceased’s property that could also be claimed by the other wife (14).
Although the Married Persons Equality Act of 1996 states that on the death of a spouse, both men and women are entitled to assets accumulated through marriage, women continue to face persistent discrimination arising from customary laws. Also, traditional rules, which did not grant women the right to own land but did give them access to it, have been eroded, depriving them of secondary rights as well (12).
According to the Married Persons Equality Act of 1996, customary law must be applied for reallocation of land rights by the traditional chief. Although customary law provides for the reallocation of land rights to the child only if there is no surviving spouse or if the spouse does not accept the allocation, the practice in communal areas is that land is usually allocated to the husband or another male member of the deceased’s family. In some communities, widows are stripped of land and household goods by a husband’s extended family members after his death (14).
The Communal Land Reform Act is gender-neutral in stating that any person who held a customary land right before the Act will continue to hold this right. Traditionally, men apply for customary land rights upon marriage and hence are regarded as the right holders. The Act does not provide for the registration of land rights in the names of both husband and wife; however, the regulations issued in terms of the Communal Land Reform Act require that the name of the applicant’s spouse also appears on the form (11).
The statutory law does not require the registration of customary marriages. However, the Ministry of Justice is in the process of consulting traditional leaders in the regions to compile a bill on the registration of customary marriages (2).

Fuentes: los números entre paréntesis (*) se refieren a las fuentes que están en la sección de Bibliografía