THE CONSTITUTION IN THE 21ST CENTURY PERSPECTIVES ON THE CONTEXT AND FUTURE OF NAMIBIA’s suPREME LAW Published by the Namibia Institute for Democracy (NID) and the Institute for Public Policy Research (IPPR) Funded by the Friedrich-Ebert-Stiftung (FES) © 2011 Namibia Institute for Democracy and the Institute for Public Policy Research No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without the written permission of the publishers. Design and Layout: Regine Gillmann Printed by: John Meinert Printing, Windhoek 2011 ISBN: 978-99945-72-38-0 A commercial resale of published brochures, books and general printed matters by the Friedrich- Ebert-Stiftung are prohibited unless the Friedrich-Ebert-Stiftung gives its explicit and written approval beforehand. Institute for Public Policy Namibia Institute for Friedrich-Ebert-Stiftung Research Democracy Namibia Office PO Box 6566, PO Box 11956, PO Box 23652, Windhoek, Namibia Klein Windhoek, Namibia Windhoek, Namibia Tel: +264 61 240514 Tel: +264 61 229117 Tel: +264 61 237438 Fax: +264 61 240516 Fax: +264 61 229119 Fax: +264 61 237441 [email protected] [email protected] www.fesnam.org.na www.ippr.org.na www.nid.org.na THE CONSTITUTION IN THE 21ST CENTURY PERSPECTIVES ON THE CONTEXT AND FUTURE OF NAMIBIA’s suPREME LAW Naita Hishoono Graham Hopwood Justine Hunter Frederico Links Masoma Sherazi ACKNOWLEDGEMENTS The publishers wish to extend their sincere appreciation to the Friedrich-Ebert-Stiftung for funding the writing and publication of this book. Special thanks also go to FES’s Michael Schultheiss for his advice and support for the project. This publication is a product of cooperation between the Namibia Institute for Democracy (NID) and the Institute for Public Policy Research (IPPR). The publishers would like to thank the writers of the various sections of the book: IPPR Research Associate Masoma Sherazi for Explaining the Constitution; IPPR Research Associate Frederico Links for The Constitution in Context and NID staff members Naita Hishoono and Justine Hunter for The Constitution in the Future. In addition, Naita Hishoono and Justine Hunter undertook the interviews of the mem- bers of the Constituent Assembly, extracts of which are interspersed throughout the handbook. IPPR Executive Director Graham Hopwood wrote the Introduction and edited the text. IPPR intern Joey Gottlieb assisted with the writing of the Constitution in Context section. We would particularly like to thank the founding mothers and fathers of the Namibian Con- stitution who made themselves available for the interviews which formed part of the research for this publication. These were: Libertina Amathila, Nahas Angula, Hidipo Hamutenya, Pen- dukeni Iivula-Ithana, Peter Katjavivi, Michaela Hübschle, Dirk Mudge, Kosie Pretorius, Vekuii Rukoro, and Hartmut Ruppel. Finally, the contributions of the young Namibians, who gave their views for the final section of the book, are gratefully acknowledged. Namibia Institute for Democracy Institute for Public Policy Research August 2011 CONTENTS 1. Introduction 4 By Graham Hopwood Founding Perspective: Nahas Angula 6 Founding Perspective: Libertina Amathila 8 Founding Perspective: Hidipo Hamutenya 9 Table: Timeline of events leading up to the adoption of the Constitution in 1990 11 2. Explaining the Constitution 12 By Masoma Sherazi Founding Perspective: Pendukeni Iivula-Ithana 22 Founding Perspective: Michaela Hübschle 24 Founding Perspective: Peter Katjavivi 26 3. The Constitution in Context 28 By Frederico Links Founding Perspective: Dirk Mudge 46 Founding Perspective: Kosie Pretorius 48 4. The Constitution in the Future 50 By Naita Hishoono and Justine Hunter Founding Perspective: Vekuii Rukoro 79 Founding Perspective: Hartmut Ruppel 80 Further reading 83 Appendices: A: 1982 Constitutional Principles 84 B: Resolution 435 of 29 September 1978 86 C: Members of the Constituent Assembly 1989-90 87 D: The Constitution of the Republic of Namibia 89 3 1. INTRODUCTION BY GRAHAM HOPWOOD amibia’s Constitution is a remarkable achievement. It was put together by 72 elected N members of the Constituent Assembly in just 80 days in late 1989 and early 1990. Many of these Assembly members had been sworn enemies up until the Namibian transition process got underway in April 1989 under the auspices of the United Nations. It is hard now to imagine how difficult it must have been for those on the different sides of the liberation struggle to sit down with former foes and respectfully debate Namibia’s supreme law. It took courage, open- mindedness and magnanimity. The fact that the founding document of the state was drawn up in such an atmosphere was a key enabling factor for the peace and stability that has characterised Namibia’s first 21 years as an independent country. In its early days the Constituent Assembly took two crucial decisions. First of all Swapo’s Theo-Ben Gurirab made clear the liberation movement would support the incorporation of the 1982 Constitutional Principles (negotiated with the Western Contact Group as a fundamental part of the peace plan for Namibia). Secondly, the then Chairman of the Democratic Turnhalle Alliance, Dirk Mudge, proposed that Swapo’s constitutional proposals be used as the basis for debate and discussion. These far-sighted decisions immediately made it clear that the Constitu- tion would place a heavy emphasis on internationally accepted standards for human rights and that there would be a process of give and take with parties prepared to make concessions in the national interest. All the members of the Constituent Assembly deserve praise for their role during those momentous days, especially the 21 representatives who served on the drafting committee. In particular, Hage Geingob, who chaired proceedings, is remembered by virtually everyone involved as being particularly skilful and effective in helping members overcome suspicion and find agreement. This volume brings together both retrospective considerations of the Constitution and assessments of what the future may hold for the supreme law and the country. Several of the founding mothers and fathers who were part of the Constituent Assembly were interviewed at length and extracts of those interviews are interspersed with the various sections of the publi- cation. Almost unanimously these serving and retired politicians expressed their pride in the Constitution, their continuing belief in its inherent values, and their hopes that future genera- tions of Namibians will live out its principles. Masoma Sherazi, who herself worked for United Nations in Namibia in more recent times, contributed the first section of The Constitution in the 21st Century. This examines the context in which the supreme law came about and summarises and assesses the way in which the Con- stituent Assembly went about its business. 4 In the second section – Explaining the Constitution – democracy and governance researcher Frederico Links, with the assistance of Joey Gottlieb, examines the role of Constitution after independence by looking at various cases and examples in which the supreme law has been cited, applied and used as a benchmark. For the final section of the publication, Naita Hishoono and Justine Hunter, spoke to a range of leading young Namibians about their knowledge and perceptions of the Constitution. The Constitution in the 21st Century is not intended to be another academic tome written in legalistic terms. Instead, the publishers hope it will serve as an accessible reader on the supreme law – which will assist the process of ensuring the Constitution is a living document for Namib- ians. As such, it is hoped the book will give a sense of how the Constitution came about, its journey through the country’s 21 years of independence, and its prospects for the future. In part, this volume can serve as a civic education handbook on the Constitution and for this purpose discussion pointers and exercises are included throughout. Indeed, it emerged during the research phase for The Constitution in the 21st Century that civic education about the supreme law can be greatly enhanced – in schools and tertiary institu- tions and also in community and civil society groups. We lose touch with our founding law at our own peril. It is not the purpose of this book to paint the Constitution as a perfect document. It was written under major time constraints and without the option for much consultation with broader Namibian society. It is inevitable that there are areas which may need future amendment or additional clauses. In the first 21 years of Namibian independence there have only been two amendment acts – the first in 1998 allowed Namibia’s founding president to run for a third term in office, while the second, passed in 2010, established the Anti-Corruption Commission as a constitutional body and tightened the section on citizenship. It is commendable that the Consti- tution has not seen repeated tinkering. On the whole, those original members of the Constituent Assembly interviewed for this volume share a belief that the Constitution does not require major revision, although some amendments may be considered from time to time. When they deliberated back in 1989/90, it was decided that Chapter 3 dealing with fundamental rights and freedoms could not be abolished or diminished by future amendments. The consensus still appears to be that this was a prescient and visionary decision, although there are persistent worries from some quarters about the death penalty and land redistribution. These commit- ments to fundamental rights and freedoms remain at the core of the supreme law and therefore national life. The challenge is to embed them further and create a genuine human rights culture in Namibia. Hopefully, this publication will help citizens understand what was in the minds of the founders of the state when they made these crucial commitments. There are other areas of the Constitution where reform could be considered at some points in the future.