THE official designation of Witbooi Traditional Authority leader Hendrik Ismael Witbooi about three years ago was reviewed and set aside by a judge of the High Court yesterday.
In a judgement delivered in the Windhoek High Court, judge Thomas Masuku also set aside the president’s recognition of Witbooi as traditional leader in a proclamation published in August 2019.
Masuku’s decision was made in a case in which a cousin and leadership rival of Witbooi, Salomon Josephat Witbooi, who is a former Namibian high commissioner to Zambia, and four members of the Witbooi community challenged Ismael Witbooi’s designation as traditional leader.
Reacting to Masuku’s decision, Salomon Witbooi said yesterday: “For me to become chief of the Witbooi Traditional Authority was the wish of our elders of the Witbooi Royal House. Therefore, today’s judgement has corrected the wrongs that were done by the previous minister and his political manoeuvring.”
He also said: “I have a mammoth task on my shoulders to unify the clan. That is what I ‘m going to do. Irrespective of churches, irrespective of political alliances […], because I have been assigned by the elders to be the leader or kaptein for all the people.”
Also reacting to the judgement, Ismael Witbooi noted that while the court set aside his designation as traditional leader, “the Lord did not put it aside”.
The two leadership rivals are both nephews of the late kaptein Hendrik Witbooi, who served as a Cabinet minister and as deputy prime minister of Namibia before his death in October 2009.
Former minister of urban and rural development Peya Mushelenga officially recognised Ismael Witbooi as traditional leader in April and May 2019.
According to Salomon Witbooi, members of the Witbooi Traditional Council nominated him in October 2015 to become the next leader of the Witbooi Traditional Authority.
The Witbooi Traditional Authority applied to have Ismael Witbooi recognised as traditional leader at the same time, and both applications were sent to the then minister of urban and rural development, Sophia Shaningwa, in October 2015.
Shaningwa referred the matter to an investigating committee, which in 2017 recommended that the Witbooi Royal House should resolve the leadership succession dispute without the involvement of non-members of the royal house, and that an election had to be held if the dispute could not be resolved within the Witbooi family.
The committee also concluded that both leadership candidates qualified for designation as kaptein of the Witbooi community, as both are members of the royal house.
After succeeding Shaningwa as minister, Mushelenga requested a legal opinion from the Office of the Attorney General, which then advised him that only Ismael Witbooi, who is related to the late kaptein Hendrik Witbooi through his father, was eligible to be recognised as traditional leader.
Salomon Witbooi is related to the late kaptein through his mother, who is a sister of the former deputy prime minister.
After receiving that opinion, Mushelenga decided to designate Ismael Witbooi as traditional leader.
In his judgement, Masuku stated that the Witbooi customary law which disqualifies Witbooi family descendants through a matrilineal line from becoming their community’s traditional leader was discriminatory on the ground of sex and is not allowed in terms of the Constitution.
Masuku found that the application to have Ismael Witbooi recognised as kaptein was defective, as that application was made by the Witbooi Traditional Authority, and not by the Witbooi community’s chiefs council or traditional council as required by the Traditional Authorities Act.
The judge also found that Mushelenga was not entitled to revisit and change the decision which Shaningwa had made on the matter, and to not follow through on the investigation committee’s recommendations that had been accepted by Shaningwa.
He further found that Mushelenga abdicated his duties to properly consider the two competing leadership applications when he decided to adopt the legal opinion provided by the attorney general’s office “lock, stock and barrel”.
Salomon Witbooi was represented by senior counsel Reinhard Tötemeyer and Yoleta Campbell, instructed by Abe Naudé.
Government lawyer Ronald Ketjijere represented the minister, while Sylvia Kahengombe represented Ismael Witbooi.
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