Kamho family dispute throws spotlight on race law remnant

THE continued existence of a 76-year-old law that the High Court declared unconstitutional last year has landed the children and wife of a former Swakopmund Mayor in a court dispute over his estate.

An urgent application in which four of the late Daniel Kamho’s children are suing the ex-Mayor’s widow, Thekla Kamho, the two children that their late father had with Mrs Kamho, Government, the President, the Kwanyama Traditional Authority, the Master of the High Court and the Swakopmund Magistrate, was removed from the High Court’s roll two weeks ago after Mrs Kamho undertook, under oath, not to dispose of any more of the assets in her late husband’s estate. According to Legal Assistance Centre lawyer Norman Tjombe, the case is still set to continue at a later date in the form of a normal – as opposed to urgent – application, though.Tjombe is representing Jomoson Hikelua Kamho, one of the children that the late Daniel Kamho fathered before he married Mrs Kamho, and three other children of Kamho Snr who were born out of wedlock.They are seeking to get their late father’s estate administered by the Master of the High Court.They are also asking the High Court to declare an old principle in Namibian law, according to which children born out of wedlock do not have the same rights to inherit from their father as children born within a marriage have, as unconstitutional.But at the heart of Kamho and his siblings’ complaint about the way that the their father’s assets are being handled and distributed, is a relic of Namibia’s discriminatory past: the Native Administration Proclamation of 1928.This piece of legislation has come under attack repeatedly in the High Court in recent years, with charges that it was a racist law that remained valid in a supposedly independent, democratic and human rights-oriented Namibia.In only one of the cases in which the Proclamation has been attacked has the High Court gone on to rule on its constitutionality.On that occasion, in July last year, Acting Judge John Manyarara declared as unconstitutional those parts of the Proclamation that have the effect that the estates of “natives” (black people) in Namibia will be administered differently after their death than the estates of “white” or “coloured” people.However, he gave Government until June 30 2005 to rectify the legislation, and ruled that until then the Proclamation would remain in force.Now, almost 11 months after that ruling, Parliament has still not been asked to bring the Proclamation in line with the Constitution and its prohibition of discrimination on grounds such as race.Two weeks ago, the result of the hardy longevity of the Proclamation was that Jomoson Kamho, Johnson Hatutale Nujoma, Carmelita Ndapewa Coxe and Daleen Hanabes went to the High Court to ask it to order Mrs Kamho to stop disposing of assets from the late Daniel Kamho’s estate.They are further set to ask the court to set aside Mrs Kamho’s appointment as executrix of the estate, to ask that the estate should be supervised by the High Court Master, and to ask that the common law rule excluding children born out of wedlock from inheriting from their fathers if that parent died without leaving a will, be declared unconstitutional.Jomoson Kamho claimed in an affidavit put before the court that since his father’s death on February 2 this year Mrs Kamho had sold 97 of the 180 head of cattle that his father had, 443 of his 665 sheep, and all of his 252 goats.Because Kamho was black, his estate was being handled in terms of the provisions of the 1928 Native Administration Proclamation, which states that such an estate should be divided in terms of the “native law and custom”, Jomoson Kamho pointed out.Had his father been classified as “white” or “coloured”, his estate would have been reported to the Office of the Master of the High Court, “who will effectively, professionally and efficiently administer the estate”, Kamho Jnr. continued.He stated further: “The administration of estates of black persons is very informal and unprofessional, unlike the administration applicable to estates of white and coloured people.”Apart from the fact that it was “utterly and overtly racist” to have different systems and laws in place for estates depending on a person’s colour, the current system for the administration of the estates of black persons “is so unprofessional and inefficient that one gets the idea that black people have no estates to administer and distribute,” Kamho Jnr. also argued in his statement.According to Legal Assistance Centre lawyer Norman Tjombe, the case is still set to continue at a later date in the form of a normal – as opposed to urgent – application, though.Tjombe is representing Jomoson Hikelua Kamho, one of the children that the late Daniel Kamho fathered before he married Mrs Kamho, and three other children of Kamho Snr who were born out of wedlock.They are seeking to get their late father’s estate administered by the Master of the High Court.They are also asking the High Court to declare an old principle in Namibian law, according to which children born out of wedlock do not have the same rights to inherit from their father as children born within a marriage have, as unconstitutional.But at the heart of Kamho and his siblings’ complaint about the way that the their father’s assets are being handled and distributed, is a relic of Namibia’s discriminatory past: the Native Administration Proclamation of 1928.This piece of legislation has come under attack repeatedly in the High Court in recent years, with charges that it was a racist law that remained valid in a supposedly independent, democratic and human rights-oriented Namibia.In only one of the cases in which the Proclamation has been attacked has the High Court gone on to rule on its constitutionality.On that occasion, in July last year, Acting Judge John Manyarara declared as unconstitutional those parts of the Proclamation that have the effect that the estates of “natives” (black people) in Namibia will be administered differently after their death than the estates of “white” or “coloured” people.However, he gave Government until June 30 2005 to rectify the legislation, and ruled that until then the Proclamation would remain in force.Now, almost 11 months after that ruling, Parliament has still not been asked to bring the Proclamation in line with the Constitution and its prohibition of discrimination on grounds such as race.Two weeks ago, the result of the hardy longevity of the Proclamation was that Jomoson Kamho, Johnson Hatutale Nujoma, Carmelita Ndapewa Coxe and Daleen Hanabes went to the High Court to ask it to order Mrs Kamho to stop disposing of assets from the late Daniel Kamho’s estate.They are further set to ask the court to set aside Mrs Kamho’s appointment as executrix of the estate, to ask that the estate should be supervised by the High Court Master, and to ask that the common law rule excluding children born out of wedlock from inheriting from their fathers if that parent died without leaving a will, be declared unconstitutional.Jomoson Kamho claimed in an affidavit put before the court that since his father’s death on February 2 this year Mrs Kamho had sold 97 of the 180 head of cattle that his father had, 443 of his 665 sheep, and all of his 252 goats.Because Kamho was black, his estate was being handled in terms of the provisions of the 1928 Native Administration Proclamation, which states that such an estate should be divided in terms of the “native law and custom”, Jomoson Kamho pointed out.Had his father been classified as “white” or “coloured”, his estate would have been reported to the Office of the Master of the High Court, “who will effectively, professionally and efficiently administer the estate”, Kamho Jnr. continued.He stated further: “The administration of estates of black persons is very informal and unprofessional, unlike the administration applicable to estates of white and coloured people.”Apart from the fact that it was “utterly and overtly racist” to have different systems and laws in place for estates depending on a person’s colour, the current system for the administration of the estates of black persons “is so unprofessional and inefficient that one gets the idea that black people have no estates to administer and distribute,” Kamho Jnr. also argued in his statement.