Traditional governance and African customary law
the straightforward and unconditioned prevailing of state organs over traditional authorities would not stand a test in court where traditional authority could claim not to be part of an all-encompassing state hierarchy and, thus, not to be part of the civil servant structures in accordance with which civil servants had, in principle, to execute orders from their superiors. Traditional authorities would, indeed, be entitled to revert to their guaranteed rights, which would allow them to have their own opinions, to formulate their own community policies and to get these policies implemented – all this as long as they act within their functions and duties and not violate constitutional requirements. But what about the remaining part of the old sec 12(1) of the Traditional Authorities Act? Would the obligation to refraining from any act undermining state organs hold constitutional water? In answering these questions, more questions have to be raised. What is undermining? Who is to determine what undermining is? Is undermining a term certain enough? Certain for government officials, but also for traditional authorities? Is openly criticising already undermining? Would it be undermining when a traditional authority would say no to a hydro-electrical power plant in the implementation of which vast grazing areas and also places of religious importance would be flooded by water?172 It is, indeed, difficult to interpret sec 16 of the Traditional Authorities Act in such a way that the interpretation would recognise, on the one hand, the interest of government in the loyalty of traditional authorities to the state structures in which and with which they are expected to operate as sub-central public agents.173 In other words, sec 16 of the Act would most probably not stand a test in court! What could be a language that would suit the interest of both sides and avoid problems as we see them in sec 16? An alternative wording could be: Subject to powers and functions vested in a traditional authority under customary law, a traditional authority shall, in the exercise of its powers and the performance of its duties and functions under customary law or as specified in this Act, give support to the policies of the Government, regional councils or local authority councils.
In order to make sure that obligations of this nature are not a one-way obligation of traditional authorities, the law on regional and local councils should contain a similar rule, reading: 172 Problems that arose in the debate about the plans of the Namibian and Angolan governments to erect a hydroelectric power plant in the area of the Kunene Epupa falls. 173 But public agents sui generic; cf Hinz (2000). 83