Namibian Constitution: a Sacred Covenant

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February 9 is Constitution Day, which will be celebrated tomorrow. New Era looks at how the supreme law has been embraced – or not – by the people and public institutions of the country.

By Catherine Sasman

WINDHOEK

“We have never read the Namibian Constitution,” said two young adults when approached on the street. A middle-aged man did not know what a constitution is, let alone that the country has a constitution.

The responses from a number of ordinary citizens on the constitution were mixed – from being positive about the changes that have taken place since independence with the Constitution acting as the supreme law, pegging out the rights and responsibilities of the citizenry, to disenchantment.

“The Constitution gives us the right to speak our minds,” said one gentleman, who preferred not to give his name.

“We can live and work wherever we want. The Constitution has made that possible.”

Others were less positive.

“The Constitution is often not implemented to the fullest,” said car guard, Fritz Jahs. “There is too much poverty, unemployment, nepotism and corruption in the country. You have those who benefit from the Constitution, and others not.”

A woman, also preferring anonymity, said: “The Constitution is upheld by the Government to some extent. Not all benefit equally.”

“The Constitution is often used for individual interest, more so by people in high positions,” said Ingrid de Vries.

Chris Mouton said: “It is a good Constitution, but whether it is correctly implemented, is another story. The courts certainly embrace the letter and spirit of the Constitution, but I think the Government should have more regard for it.”

These worrying comments belie the fact that the Namibian Constitution is considered as a “shining example” and one of the most progressive in the world, following a process of compromise reached between party and societal lines that have stood on opposing sides of the political, colour and socio-economic divides; a process of constitution-making viewed “without par”, referring both to the process and content of the document.

What such comments imply is that there has not yet been a transfer from ‘constitutionalising’ a new Namibia 18 years ago and making it so.

But despite the fact that the Constitution is often questioned – particularly Article 16 that deals with property rights – many commentators agree that it has, and is, impacting on the manner in which the Namibian society has, and is, being shaped.

How the Constitution Came About

The period before independence was marked by a bitter, and often violent, feud between South Africa as an occupying power, the liberation movement and international community.

Namibia was almost permanently on the agenda of the United Nations, and the Namibian people’s plea for independence from South Africa was heard six times before the International Court of Justice.

In 1976 the UN Security Council adopted Resolution 385 that introduced the concept that the Namibian people should be able to “freely determine their own future”.

This was the beginning of a change in the political climate, the eventual adoption of Resolution 435, which paved the way for the UN-monitored election in 1989.

The elections of a Constituent Assembly and the drafting of the Namibian Constitution became part of an international settlement plan.

Important, said commentators, was that Namibia’s constitutional making became part of the international peace-making operation, through the adoption in the Security Council of the document entitled “Principles concerning the Constituent Assembly and the Constitution for an independent Namibia”.

This document introduced certain conditions. The one was the rules and procedures for the election of the Constitutional Assembly, and several constitutional principles determining the content of the Constitution and the nature of the future political dispensation for Namibia, according to Professor of Law at the University of Stellenbosch, MG Erasmus.

These principles outlined a unitary, sovereign and democratic state; a supreme and entrenched constitution; parliamentary democracy; a separation of powers, judicial independence and constitutional review, regular and “genuine elections”, an electoral system based on universal, adult franchise, a secret ballot, and proportional representation.

It also made provision for an enforceable bill of rights, outlawing of retrospective criminal offences, fair administration, and elected local and regional councils.

Erasmus contends that the laying down of these principles meant, in actual fact, that Namibians did not have a completely free hand in the writing of their own constitution.

But what it did mean, however, was that Namibians adopted these principles as a framework for gaining independence, suggested Erasmus. These principles, said Erasmus, were part and parcel of the independence deal; “this deal was the only deal in town”.

“An important contribution of these principles was their legitimating effect on the compromises reached by former opponents and the face-saving that this allowed,” wrote Erasmus.

But Namibian leaders thoroughly debated each and every line and article, with opposing parties, which formed the 72-member Constitutional Assembly that had to draft and adopt the Constitution with a two-third majority.

No party gained such a majority, and what followed was a compromise reached among the parties.

Nearly 18 Years On

“The Namibian Constitution is a living document, a work in progress,” said Dr Hage Geingob, one of the drafters of the Constitution.

“The spirit and letter of the Constitution embraces a liberal democracy, allowing for basic freedoms and human rights that has been arrived at through consensus. This makes it a constitution for all Namibians.”

The leitmotiv of the Constitution is to be “democratic, sovereign and committed to the “inherent dignity and the equality and inalienable rights of all members of the human family”.

The Constitution, added Speaker of the National Assembly Theo-Ben Gurirab, is a “sacred covenant between citizens and the State, represented by the Government”.

“I want to underline ‘sacred’ because the Constitution embodies the aspirations, hopes and expectations, and a sense of security of the people. It is a living document that keeps hope alive,” said Gurirab.

Since Independence and with the Namibian Constitution as the blueprint for all laws in the country, 15 discriminatory laws had been repealed.

These include the South-West Africa Constitution Act of 1968, the Rehoboth Self-Government Act of 1976, the Establishment of Office of Administrator-General for the Territory of South-West Africa Proclamation of 1977, the Representative Authorities Proclamation of 1980, and the 1980 Representative Authorities of 11 groups distinguished along racial and ethnic lines.

Also since the adoption of the Constitution, nearly 500 laws have been legislated, and there was one amendment to the Constitution to make way for a third Presidential term for the founding father, Sam Nujoma.

This amendment, said Geingob, was a “technical amendment”, which was done “democratically, legally and was politically correct”.

Although Gurirab agreed that amendments to any constitution might be necessary to keep up with the times, any amendment of the Constitution should be considered as a last option, with Acts of Parliament as a way to deal with issues arising.

Geingob and Gurirab felt that the Constitution not only has had a major national impact on the organs of State and Government, but was also embraced by all Namibians.

“This becomes clear when one listens to how people are referring to their rights, although many often ignore their duties. Normally people with hope make noise. This means that Namibians have hope and expectations from Government.”

He added: “Namibia is a tolerant country; the Government is very tolerant. We have peace and unity, a multiparty system, freedom of the press. The State is well managed.”

He said the economy has steadily grown over the years, but of concern is widespread poverty.

“I would recommend drastic steps [to deal with poverty],” said Geigob.

“Namibians know their rights, not only to express their views, but also to hold officials accountable,” said Gurirab.

Co-editor of ‘The Constitution at Work: 10 Years of Namibian Nationhood’, Sam Amoo, said the spirit and letter of the Constitution, on the whole, is being implemented. This, he said, is reflected in the records of the decisions of the country’s courts, especially in cases regarding the violation of the Bill of Rights by Government.

Kosie Pretorius, also co-author of the Namibian Constitution, however, said the translation of the Constitution happens haphazardly.

“We need to go back to the original meanings as captured in the minutes of the 21-member sub-committee of the Constitutional Assembly that was responsible for the wording of the Constitution,” said Pretorius.

He has, however, requested to have access to these original documents, but said that he had been repeatedly denied access thereto.

“This is the biggest handicap of the Constitution.”

A niggling issue, said Pretorius, is the interpretation of what Affirmative Action is supposed to mean. According to him, the original intent of the Constitution was that Affirmative Action would not have an effect on a certain group, but instead on individuals.

“A major drawback is that there was no clear and correct implementation of the Articles dealing with Affirmative Action and Property Rights, where property rights deal with land, even though land distribution never came up in the discussions during the drafting of the Constitution.”

Congress of Democrats Member of Parliament, Nora Schimming-Chase, was of the opinion that the national impact of the Namibian Constitution is still “very limited”.

“This is so simply because on the one hand the nation at large is not very aware of the Constitution; the public out there is not too knowledgeable of their rights. This can be seen from people’s reactions when new parties are formed. There is a perception that it is wrong to start new parties. One the other hand, even if we have a beautiful Constitution, it is not being implemented. For example, the Constitution makes provision for gender equality, but a cursory look at representation in the top structures of political parties, gender equity is lacking. This is the same for businesses despite Affirmative Action.

She said because the constitution making process was a matter of give-and-take, promises were made, but not all kept, such as the amendment for the third presidential term.

Of concern, also, said Schimming-Chase, was that there is no clear separation of powers.

“The executive is numerically stronger than the legislature. This compromises the oversight function of the legislature,” Schimming-Chase said.

Director of the Namibian Institute of Democracy (NID), Theunis Keulder, was of the opinion that although the Constitution has great symbolic value as well, there is still a lot of scope for people to get to know the content of the Constitution.

“Democracy needs active and involved people; this is sometimes lacking,” said Keulder, suggesting that more should be done at schools to inform people of their rights. “Institutions that implement democracy have an obligation to do more.”

Although there is a general respect for the Constitution, said Keulder, with a weak opposition, the media often acts as a guardian of the Constitution.
He also felt that the biggest challenge is that there appears to be little difference between the executive and the legislature.

Geingob said a major flaw of the Constitution is the proportional representation, which, he said, does not allow for direct accountability and transparency, “which is the biggest asset of democracy”.

Gurirab said the Constitution is “deliberately weak” in an attempt to try and “balance the strength of the State versus the weaknesses of the people”, where the State has resources at its disposal, which people may not have.

“But if such weaknesses stand in the way of progress, it should be addressed through Acts of Parliament.”

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