Tomorrow is Constitution Day, when the country celebrates the adoption of the Namibian Constitution by its founders.
On this day our Constitution turns 18 years. The interesting question is whether the rights and freedoms that this document guarantees can equally practically be said to be turning 18 years as well. Hence the question whether our Constitution is a living document or not. The 1996 revised edition of the Webster’s Encyclopedic Dictionary describes living as, among others “having life” or “active”. Thus when we refer to the Constitution as a “living document” we mean that it has life and whether we daily live by the rights and freedoms enshrined in this document, and of course the attendant duties and responsibilities. Foremost of these rights and freedom are those in Chapter 13 given as fundamental. They range from the right to life, right to education and right to participation in political activity to freedoms such as freedom of speech and expression including the freedom of the press and other media to freedom.
The answer to the question whether such rights and freedoms are alive is both Yes and No. Yes in the sense that such rights and freedoms are enshrined in black and white and theoretically are guaranteed to all of us citizens/residents of the Land of the Brave. Whether we do not live by them consciously or subconsciously does not mean they do not exist. On paper they do. This brings us to the flip side of the equation. It is not only enough that our rights and freedoms exist on paper hence the imperative of them being life.
Such existence can only be practical and said to be living if those who are supposed to enjoy these rights and freedoms are not only aware of their existence on paper but relate to them practically and materially in their daily lives. It is on this score that one cannot say in the affirmative that those who are supposed to enjoy these rights and freedoms are aware of them and make them part of their daily lives whether in business, political, economic, social, cultural; lives and otherwise? “The Constitution is upheld by the Government to some extent. Not all benefit equally.” This quote by one of our citizens as quoted this week in New Era may amplify the notion that the Constitution has as yet to become a living document as far as the masses are concerned.
The practical yardstick of the liveliness of the Constitution is how it materially facilitates our livelihoods, especially of the impoverished, exploited and oppressed people and classes if you like. Hence my emphasis on economic rights and the quest for economic justice.
Often the struggle for freedom and liberation in Africa, and Namibia is no exception, has been nationalist in character. Naturally, the constitutional order we have seen in these newly independent African states have been liberal democratic in nature with emphasis on civil and political rights and other fanciful rights and freedom at the expense of economic rights and freedoms. Economic transformation has only been an imperative appendice. The famous dictum by one of Africa’s foremost thinkers and liberation pioneers, Dr Kwame Nkrumah of Ghana suffices. “Seek ye first the political kingdom.”
History has proven that in most of our liberated polities on the continent this political kingdom have practically come to be an end in itself with economic justice a distant focus that it always has been. Article 98 of the Namibian Constitution talks about a “mixed economy” and goes on to define economic ownership as public, private, joint public-private, cooperative, co-ownership and small-scale family. These forms of ownership have been of little meaning in an ideological sense and expectedly given the ideological muteness have been of no consequence in terms of a radical transformation of the economy for the betterment of the livelihoods of the masses.
Thus one cannot talk of any meaningful transformation of the economy other than a tampering with it to accommodate the ruling elite, both political and the black economic elite under the so-called Black Economic Empowerment (BEE). Thus in terms of economic justice and the radical transformation of the economy, the Constitution has as yet to become “a living” document. As per the civil and political rights as much as they are on paper, they can also assume real meaning if they do not only remain on paper but people are conscious of them and live by them.
This onus lies with civil society. So far, there is little evidence of the extent civil society is collectively conscious of its civil, political and human rights and is daring of living by them. Neither is there much evidence to what extent our statesmen and women carry out their mandate of upholding the Constitution as per their oath and inculcating a Constitutional culture within our populace.
Overall, our Constitution remains only a paper as it has as yet to stand before a real test in terms of the various rights and freedoms that it guarantees.
Until we reach that bridge, and the big question remains when, it may be premature to properly appreciate its provisions.
As they say, the proof of the pudding is in the eating. There appears not to have been much eating of the pudding as far as the Namibian Constitution is concerned and equally we cannot say much of the proof.