Himba chief loses official status

VETERAN Ovahimba traditional leader Hikuminue Kapika has lost his official designation as chief of his community in the Epupa area of the Kunene region.

Kapika lost his official status as a traditional leader recognised by government through a judgement that was handed down in the Windhoek High Court on Friday.

In the judgement, judge Shafimana Ueitele reviewed and set aside former minister of urban and rural development Sophia Shaningwa’s decision in early 2016 to approve the designation of Kapika as chief of the Ombuku traditional community.

Judge Ueitele found that Shaningwa failed to give Kapika’s half-brother and leadership rival Mutaambanda Kapika an opportunity to be heard before she decided to approve the elder Kapika’s designation as traditional leader of their community.

In his view, judge Ueitele stated, that failure by the minister to first hear Mutaambanda Kapika on an issue affecting him was fatal, and the then minister’s decision could not be allowed to stand.

He also found that when Shaningwa relied on a report of a committee that had to investigate if an application to have Hikuminue Kapika officially recognised as traditional leader of his community, she could not have concluded that his designation as chief was in accordance with the customary laws of his community, as required in terms of the Traditional Authorities Act.

Judge Ueitele further found that the application to get official recognition for the elder Kapika’s status as traditional leader did not comply with the Traditional Authorities Act because it was not shown that the traditional councillor who made the application to the minister had been authorised by the Ombuku community’s customary law to make such an application.

The judgement was given in a case in which Mutaambanda Kapika sued Hikuminue Kapika, the Kapika Traditional Authority, the minister of urban and rural development, and the chairperson of the Council of Traditional Leaders to have the minister’s decision to recognise the elder Kapika’s designation as chief of the Ombuku traditional community reviewed and set aside.

Mutaambanda Kapika, aged 64, informed the court in an affidavit that the Ombuku traditional community, which has been led by Hikuminue Kapika (84) since the death of his father in 1982, had lost trust in the elder Kapika’s leadership after he made a U-turn on his resistance to a plan to build a new Kunene River dam and hydroelectricity plant on ancestral Ovahimba land near the Epupa Falls.

The elder Kapika used to be a leading opponent of the controversial proposed dam project, which the Ovahimba people consider a major threat to the survival of their customs, culture, traditions and their very identity, but his opposition was dropped after he had made a visit to China near the end of 2013, and then disappeared from his community for about three months, Mutaambanda Kapika said in his sworn statement.

It was also stated in the affidavit that the Ombuku community decided at a community meeting held in March 2014 that the aged chief was incapable of continuing to be their leader, with Mutaambanda Kapika then elected as chief in his place.

Mutaambanda Kapika further stated that his half-brother announced in July 2014 that he had joined the Swapo Party. This was followed the next year by Shaningwa’s decision to formally recognise him as chief – after two previous applications to have him designated did not succeed.

By the time that Shanginwa decided to recognise the elder Kapika’s leadership of his community, an application to have Mutaambanda Kapika recognised as chief of the Ombuku community had also been made in March 2015, judge Ueitele noted in his judgement.

Despite the fact that she had received two competing applications for the designation of a traditional leader for the Ombuku community, the minister decided to recognise Hikuminue Kapika without having given Mutaambanda Kapika an opportunity to be heard on the issue at hand, the judge also recounted.

That went against the legal rule requiring public authorities and officials to afford a person who may be affected by a decision of the public authority a chance to be heard before such a decision is taken, judge Ueitele remarked.

Mutaambanda Kapika was represented by Legal Assistance Centre lawyers Willem Odendaal and Corinna van Wyk when oral arguments in the matter were heard by judge Ueitele in August last year. Government lawyer Margaret Malambo-Ilunga represented the minister, while Hikuminue Kapika was represented by Elize Angula.

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