Judge sets aside appointment of Gciriku traditional leader

A HIGH Court judge has set aside former minister of urban and rural development Erastus Uutoni’s decision to appoint a chief for the Gciriku Traditional Authority in the Kavango East region.

In a judgement delivered in the Windhoek High Court on Friday, judge Esi Schimming-Chase set aside Uutoni’s decision to appoint Felix Mashika as chief of the Gciriku Traditional Authority, and ordered that the minister of urban and rural development should make a new decision about the appointment of a chief for the traditional authority.

An uncle of Mashika and fellow member of the Gciriku royal family, Aruvita Kayoka, asked the High Court to review and set aside Mashika’s designation as chief and to refer the appointment of a traditional leader for the Vagciriku community back to the minister of urban and rural development for a new decision to be made.

The previous chief of the Vagciriku traditional community, Hompa Kassian Shiyambi, died during November 2019, Schimming-Chase recounted in her judgement.

After Shiyambi’s death, Kayoka claimed the Gciriku royal family selected him to succeed Shiyambi as traditional leader.

Mashika, however, claimed to have been nominated by Shiyambi during his lifetime to be his successor.

A ministerial investigation committee appointed by Uutoni investigated the leadership rivals’ claims and recommended in July 2023 that Shiyambi’s wish to nominate Mashika as his successor should be respected.

Uutoni approved an application for the designation of Mashika as traditional leader in September 2023.

Ten days after that, Kayoka obtained an urgent interdict in the High Court, which ordered that a ceremony to crown Mashika as chief should not go ahead until a review application by Kayoka had been decided.

In his review application, Kayoka claimed he had not been given an opportunity to be heard before Uutoni decided to designate Mashika as chief of the Gciriku Traditional Authority.

Kayoka and his supporters were heard by the ministerial investigation committee, though, Schimming-Chase noted in her judgement.

The Traditional Authorities Act does not require the minister to give them another hearing after the committee had heard them, she said.

“However, fairness requires more than merely affording parties an opportunity to present their case,” Schimming-Chase said.

“It also requires that the decision-maker actually meaningfully consider the representations made, and apply the correct legal framework.”

In a report that the investigation committee gave to Uutoni, it did not determine what the Vagciriku community’s customary law of succession actually is, Schimming-Chase said: “It does not explain why nomination by an incumbent chief, rather than selection by the royal family after the chief’s death, is the correct customary law mechanism for the Gciriku community.”

Schimming-Chase also said: “The minister failed to engage with the contested question of customary law – whether succession is determined by genealogical position or by appointment.”

Uutoni was supposed to apply his mind to the committee’s recommendation and satisfy himself that it was correct and was based on a proper determination of the applicable customary law, Schimming-Chase said as well.

The minister of urban and rural development should reconsider the designation of a traditional leader for the Vagciriku community and make a decision on it within 90 days, Schimming-Chase ordered.

When making that decision, the minister should ensure that a proper determination is made on the customary law of succession for the Vagciriku community, she said.

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