Perspectives on Namibian inheritance practices Gender Research & Advocacy Project LEGAL ASSISTANCE CENTRE 2005 2 Perspectives on Namibian inheritance practices Gender Research & Advocacy Project LEGAL ASSISTANCE CENTRE Windhoek 2005 Acknowledgements This project was planned by Dianne Hubbard, Robert Gordon, Michael Bollig and Mercedes Ovis. Our goal was to bridge the gap between academic discourse and debates on public policy, with a focus on the topical issue of inheritance. Our thanks to all the contributors for making their important academic work more accessible to the public. We also appreciate the willingness of the contributors to work under tight deadlines. Contributors were identified and selected by Robert Gordon, with a focus on academics who have conducted field research in Namibia. The essays were compiled and edited by Robert Gordon. Design and layout are by Perri Caplan. The project was funded by Austrian Development Cooperation through the North-South Institute. ISBN 99916-63-09-6 Legal Assistance Centre 4 Körner Street P.O. Box 604 Windhoek Tel. (264) (061) 223356 Fax 234953 Email [email protected] Website www.lac.org.na 4 Contents Notes on the contributors ........................................................iii 1: Robert Gordon, “Introduction: On the Perniciousness of Inheritance Problems” ................................................. 1 2: Thomas Widlok, “Take it or leave it: The post- and pre-mortal inheritance of San people in the Oshikoto Region” ........................................................................... 23 3: Sabine Klocke-Daffa, “The inheritance of social obligations among the Namibian Khoekhoen” ................. 39 4: Michael Bollig, “Inheritance and Maintenance among the Himba of the Kunene Region”................................... 45 5: Jekura U Kavari, “Estates and Systems of Inheritance among Ovahimba and Ovaherero in Kaokoland” ........... 63 6: Joanne Lebert, “Inheritance Practices and Property Rights in Ohangwena Region”......................................... 71 7: Heike Becker, “‘It all depends on the family’: Revisiting laws and practices of inheritance in Namibia” ............... 93 8: Debie LeBeau, “In Small Things Stolen: The Archeology of Inheritance versus Property Grabbing in Katutura” ... 105 9: Manfred O Hinz, “Bhe v the Magistrate of Khayelitsha, or African customary law before the constitution” ....... 127 i With independence, the new democratically-elected government committed itself to changing not only the shape and form, but also the content of our inherited institutions and relationships. This transformation is an ongoing process that has to be mindful of our com- plex reality and based on social consensus, which we have to sensibly and consciously build and strengthen. Hon. Marlene Mungunda, Minister of Gender Equality and Child Welfare, Foreword to “Between Yesterday and Tomorrow: Writings by Namibian Women”. ii Notes on the contributors Dr Heike Becker obtained her doctorate at the University of Bremen and has done extensive research and consultancies in Namibia mostly on gender and legal issues. She is currently an Associate Professor of Anthropology at the University of the Western Cape. Email address: [email protected]. Dr Michael Bollig is a Professor of Social and Cultural Anthropology at the University of Cologne. He has done extensive fieldwork in Kenya and in Namibia, mainly on the political ecology and the economic development of arid and semi-arid areas. He is the author of Living in a hazardous environment: Risk management in two pastoral socie- ties – the Himba of Namibia and the Pokot of Kenya, and Risk and Uncertainty in Pastoral Societies. Email address: [email protected]. Dr Robert Gordon is a Namibian social anthropologist and historian who is based at the University of Vermont. While he has worked in many parts of the world including Papua New Guinea, South Africa and Lesotho, Namibia remains his fixation and he periodically returns to this country which never ceases to amaze. He has published a number of books including The Bushman Myth and The Making of a Namibian Underclass. Email address: [email protected]. Prof Manfred O Hinz is both a legal scholar and an anthropologist. He taught at the University of Bremen for many years before relocating to Namibia where he was a founding member of the Law Faculty at UNAM. He has published extensively on Namibian customary law. Email address: [email protected]. Dr Jekura U Kavari obtained his Ph.D at the University of London and is an expert on oral literature. He teaches at UNAM. Email address: [email protected]. iii Dr Sabine Klocke-Daffa is Professur-Vertreterin at the Institut für Ethnologie, Universität Münster. She has been doing ongoing fieldwork in southern Namibia since the early 1990s and is the acclaimed author of „Wenn du hast, musst du geben”: Sociale Sicherung im ritus und im Alltag bei den Nama von Berseba/Namibia (2001). LitVerlag, Hamburg. Email address: [email protected]. Dr Debie LeBeau has been engaged in extensive ethnographic and social research in Namibia for more than 20 years. She has taught at the University of Namibia for many years and has published widely on the country. Email address: [email protected]. Joanne Lebert conducted 15 months of anthropological fieldwork in Ohangwena region between 2002 and 2004. Her research examines the impact of the post-independence institutionalization and promotion of human rights on social relations and intergenerational relationships among the Kwanyama of Ohangwena region. She is currently writing her dissertation in Ottawa, Canada, and plans to return to Namibia in 2005 to share her findings. Email address: [email protected]. Dr Thomas Widlok is an anthropological researcher currently based at the University of Heidelberg in Germany. He has done a total of more than three years of field research in Namibia between 1990 and 2005. He is the author of Living on Mangetti: ‘Bushman’ Autonomy and Namibian Independence, Oxford: Oxford University Press (1999). Email address: [email protected]. iv 1: On the Perniciousness of Inheritance Problems Robert Gordon All over the world, from the novels of Jane Austin, to soap operas to contemporary African novels and folk-tales, stories of inheritance, and in particular how heirs get “robbed” of their inheritance abound. It is no accident that perhaps the consistently most widely-read pages of a certain Windhoek newspaper are those dealing with wills filed in the Master’s Office. Indeed one of the earliest stories in the Bible concerns Zelophe- had’s daughters in which the Lord instructs: “If a man dies without leaving a son, you shall let his heritage pass on to his daughter; if he has no daughter, you shall give his heritage to his brothers; if he has no brothers, you shall give his heritage to his father’s brothers; if his father has no brothers, you shall give his heritage to his nearest relative in his clan, who shall then take possession of it.” (Numbers 27:2). Nor are inheritance disputes recent in Namibia. More than a century ago Missionary Wandres wrote that “without a doubt thee most difficult part of Nama and Damara law is the law of inheritance”. German and South African colonial officials stationed in other parts of the country concurred. For example addressing the 1958 Nama Tribal Leaders Conference in Berseba, the Chief Bantu Affairs Commissioner com- plained about the large number of estates on all the Reserves in the Police Zone which were simply left unsettled and whose assets were stripped. Officials stationed among the Herero also complained. For example, M. J. Vercueil, an ambitious newly-appointed Herero Affairs Commissioner complained that “especially long outstanding complex estates which no one apparently can resolve, have forced me to be so desk bound that I haven’t yet found time to reconnoiter my district to establish the potential thereof for resettlement purposes” (my trans- lation). These examples can be multiplied many times. Traditional Authorities and lawyers in Namibia and elsewhere will tell you that the most bitter and often most intractable disputes they Robert Gordon 1 have to deal with concern inheritance. Yet, on the face of it, why indeed should people inherit? Why should anyone get something they didn’t work for? It is after all not wealth or property that they have earned, nor in many cases deserve and typically need. Rarely do the fairy tale stories occur of starving or poor people inheriting wealth from rich relatives. What is it about inheritance that fascinates and forces us to take it so seriously? This is no idle question but one of critical importance as the Government has been compelled as a consequence of the 2003 Berendt case to develop a non-discriminatory inheritance law. In addi- tion, some much publicized cases of “widow dispossession”, where recently-widowed women were stripped of their houses and more by irate relatives, have done much to focus concern on inheritance practices. This is perhaps then an appropriate occasion to discuss the nature and implications of inheritance. So complex is the nature of inheritance that this is a task fraught with difficulty. This short collection of essays seeks to address some of the issues surrounding the question of inheritance in Namibia. It is an exercise in what might be termed “public interest” anthropology. Using data derived from a recent evaluation of the state of anthropology in Namibia (Gordon 2000) as well as personal networks, the Gender Research