Constitutional law experts yesterday said the decision by police chief Inspector-General Sebastian Ndeitunga to impose a temporary moratorium on public demonstrations could be in violation of the country’s constitution.
This comes after Ndeitunga announced that he had placed restrictions on all public demonstrations in Windhoek during the period June 13 to 18, 2016.
Ndeitunga explained that this was necessitated by “other security considerations, due to multiple international events taking place in the capital” during the seven days.
Nampa reports that one of the international events planned for this period is the 31st session of the African Caribbean and Pacific (ACP) and European Union Joint Parliamentary Assembly, which takes place from June 11 to 15 in the capital.
About 350 parliamentarians from 28 EU countries and 79 ACP countries are expected to attend the session.
The 16th edition of the Council of Southern African Football Associations (Cosafa) Cup also starts in Windhoek on Saturday and ends on June 25.
Ndeitunga advised that all other demonstrations that were scheduled to fall within those days may proceed after that period.
One such demonstration is the mass action planned under the Affirmative Repositioning (AR) movement against the proposed construction of a N$2.2 billion new parliament building.
The AR plans to draw thousands of Namibians, particularly the youth, to Windhoek for the demonstration slated for June 16. National Assembly Speaker Peter Katjavivi had previously said the demonstrations can go ahead if the correct procedures were followed.
Last night Kadhila Amoomo Legal Practitioners, representing AR, wrote to Ndeitunga asking him to retract his directive by not later than 11h00 today. Failure to do so, the lawyers said, would lead to an urgent court action to challenge the legality of the directive, which they say has no basis in law.
Constitutional expert and academic Professor Nico Horn said: “When you look on the social side of things, this (moratorium) is ridiculous. The AR has never been violent. This is not South Africa and this decision is in violation of Article 18 of the Constitution which says administrative bodies and officials must act fairly and reasonably,” explained Horn.
“There is nothing fair and reasonable about this decision. That Article is there to protect us from such things where the State enforces whatever issues they want on people,” he said.
“This is a possible political game. AR is not an enemy of the State, is not violent and they are not terrorists,” the University of Namibia professor of law said.
Horn maintained that these are young people who want to peacefully demonstrate against an issue that has the nation in uproar.
According to him the issue of the new parliament building goes beyond the AR, as it has stirred debate even among senior officials in government and the ruling party Swapo.
It is his opinion that the politically conscious have already expressed concern over the project and many are reading about in the media and other platforms.
Horn then observed that the police are doing “the politicians’ work” and the concern is more about a threat to government policy and not the safety of Windhoek residents and visitors.
“I am sure it is unconstitutional because I am wondering on what grounds they have placed the ban? Who was killed at the previous AR meetings? What is the reason? This is not how a democratic society operates.”
He continued: “We do not have a referendum system where we can vote on such matters here. What are we then supposed to do? This is killing a fly with a sledgehammer. I do not see the young people turning up with AK-47s and petrol bombs.”
Horn advised that if a court application is lodged, demonstrators must hold their horses until a verdict is out. “They shouldn’t go there before a verdict is announced.”
Human rights lawyer Norman Tjombe described Ndeitunga’s directive as “nonsense” and a grim reminder of a 2010 situation in which the police chief also placed an eight-day ban on public gatherings and demonstrations.
The decision was however declared unconstitutional by the courts after it was challenged by civil society.
Speaking to New Era yesterday, Tjombe stressed that banning of public gatherings, demonstrations and meetings is a blatant violation of the human rights to association and peaceful demonstrations, which are all guaranteed by the Constitution and international law.
“This is a serious assault of the rights of people and certainly an unlawful instruction by the police, who have no business to do so,” noted Tjombe.
“People have a right to influence the policies of the government, and if it is to be done through peaceful demonstrations, then it must be allowed.”
Meanwhile, the Namibian National Teachers’ Union (Nantu) and Namibia National Students Organisation (Nanso) have asked the ministry of education to withdraw a circular indicating that June 16 will not be a school holiday in celebration of the African Child Day as has been the norm over the years.
In a joint letter, the two bodies have accused the ministry of not consulting them in arriving at that decision.
“Notwithstanding the importance of [the day], our members have made prior arrangements knowing that the day will be a school holiday,” the statement read.
“Your uninformed, monarchial, non-consultative and autarchic decision highly prejudices our members in this regard.”
“On behalf of our members and in light of the above and many more, we reject your [circular]; our members will continue to commemorate the day as planned earlier and will observe the day as a school holiday,” the letter, signed by Nantu secretary-general Basilius Haingura and his Nanso counterpart Dimbulukeni Nauyoma, reads.