The Traditional Governance and Customs Facilitation Bill 2018 was a poorly designed piece of legislation.
It is also well below the required judicial standard.
That’s according to Chief Magistrate Emma Garo when she appeared before the Bills and Legislation Committee (BLC) last week.
Garo was part of a team of judicial officers who made submissions to the BCL about the bill, which the Government wants passed in the next parliament sitting.
She said this is a failed bill as far as its legal implication is concerned.
“Firstly, it’s just the title where it makes reference to the Act maybe cited as the Traditional and Customs Facilitation Act 2018-09-20.
“The issue there is the word ‘Facilitation’; it would imply that you are just facilitating everything without separating the good from the bad,” Garo said.
“So if a custom is unconstitutional or is repugnant to the general principle of humanity, will it still be facilitated by this legislation?
“The the other issue is the phrase ‘customary right’, which is not defined in this bill.
“So this gives rise to another question, what sort of rights are we talking about?
“Yes we have rights over knowledge and property, but if it’s property customary rights over land, the issues that come into mind are the primary rights and the secondary rights.
“So with the lack of definition we really don’t know which right we are talking about with regards to this bill and that needs to be clarified.”
BLC chairman Mathew Wale agreed with the submissions from Garo and her team, stating the intention of the bill is okay but it was poorly done by people don’t understand what they are doing.
Garo also pointed out the bill has no legal consequences or provisions for any legal actions if a tribe or house of chiefs did not adhere to what was stated in it.
Wale suggested the Ministry of National Unity, Reconciliation and Peace (MNURP) and those behind this bill need to consult with the judiciary to ensure the bill meets the required legal standard.
By ANDREW FANASIA
