Traditional king ordered to appear in court and testify about his decisions

22 February 2019 · Carmel Rickard

High court judge, Maphios Cheda, was faced with a tricky issue earlier this month. A group of Namibian traditional leaders, ousted by the King after allegations of misconduct and other “transgressions”, challenged the King’s decision to remove them and appoint other traditional leaders in their place. The suspended leaders said the King was of advanced age and no longer able to make decisions on his own. They believed the decision to suspend them had not in fact been made by the King, and they wanted the court to order that he come to court and be examined on the origins of the letter sent to the suspended leaders under his name. Faced by the strong claim that the King had “mental challenges”, what was the court to do?

The unusual court case was the result of a long-running feud within Namibia’s Ondonga traditional authority and involves senior traditional leaders and advisers to the King, the “Omukwaniilwa” of Ondonga. At some stage six of these advisers were sacked and they then asked the court to intervene.

They had two main complaints. First, they had been “tried”, subjected to disciplinary procedures and suspended – all in their absence. This was improper and was, as Judge Maphios Cheda summed up the argument, “pregnant with irregularities” that could lead to judicial review of the decisions. Second, they disputed whether the decision to remove them and appoint others in their place had actually been made by the King himself. This was because, in their view, the King, Omukwanilwa Tate Immanuel Kauluma Elifas, a man of advanced age, was no longer able to make decisions on his own. They had observed him firsthand and knew that he was “affected by old age which has resulted in some incoherence”. Thus they believed that he was “unlikely to have exercised his own and sound judgment” in deciding to suspend and replace them.

The King himself, and the new advisors appointed to take the place of those he allegedly suspended and removed, all vehemently denied there was anything less than adequate about the way he conducted his duties. They said he was still able to carry out his official duties despite his “advanced age” and that he had personally made the decision to remove the original group of traditional advisors and replace them.

Counsel for the advisors who had lost their positions told the court that as the King’s demeanour and alleged “incoherence” was a factual matter that could not be resolved on the papers, the question should be referred to oral evidence.

Certainly, the two sides differed fundamentally on the question of the King’s mental state. The original advisers raised the problem of his “incoherence”, as they saw it, in mid-2017 but the King himself and his newly appointed councillors said there was no problem with his functioning and that there was thus no basis for him to be called to give oral evidence.

Summing up the competing claims the court said the original councillors seemed to believe the King was “in a state where he has mental challenges” and that this was a “factual matter” that did not require medical evaluation. The new advisors, however, said the King continued to be of sound mind and made decisions personally “about the kingdom and its subjects”.

The court commented that allegations the King was not the author of the letters of suspension and that the decision to remove the original councilors was not his own were very serious as they “bordered on questioning” whether he was in a suitable condition to lead his subjects.

Counsel for the new advisors took “great exception” to the idea that a psychiatric evaluation was the only way to establish the exact situation, and the judge said he agreed that this was not the way forward. But the court did not know where the truth lies: did the King decide on his own that the first group of councillors should be replaced or, as the old advisers claimed, was there an invisible hand behind the King, “actively manipulating him”? If this were proved, it would have serious legal consequences for the functions of the King.

What actually had to be determined was whether the King personally made the decisions about the original councillors and himself authored and signed the letters to them. That question could not be resolved on the papers, but only by questioning the King.

In the judge’s view, oral evidence would resolve the question of whether the King wrote the letters himself. Though counsel for the new advisers said the King would “suffer prejudice” if he were “brought to court to give evidence”, the judge did not agree and said he did not see how the King could be “prejudiced” by being asked whether he “owned” or “disowned” the decision to remove the original advisers.

Because of his office, the King “should not generally be brought to court on frivolous grounds” but only when his subjects were “at each other’s throats” and unable to resolve their disputes.

Then there is a paragraph by the judge that is difficult to follow: “I hope that after the appearance of His Highness the King in court and his examination and cross-examination will lead some to shout the English proverb that ‘The Emperor has no clothes’. The moral of this is that because of pretentiousness and social hypocrisy in society people pretend to know about or agree with certain things because it makes them look better, yet honesty of the innocent is best. It is for that reason the truth about (the King’s) position should be laid bare.”

Judge Cheda then concluded: “I am of the opinion that there is a compelling reason for (the King) to appear before the court and give viva voce evidence in connection with the decision and his letters and more specifically his signature on the letters … and any documents pertaining to this matter. It is through that process that the facts in this dispute will be ventilated.”

Asino v Elifas (HC-NLD-CIV-MOT-REV-2017/00011) [2018] NAHCNLD 82 (09 August 2018);

Carmel Rickard

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