Constitutional Democracy in Namibia
Constitutional jurisprudence in Namibia since Independence George Coleman and Esi Schimming-Chase Introduction Administrative bodies and administrative officials who are capable of making decisions affecting the citizens should always bear in mind that, by the adoption of the Constitution of Namibia, we have been propelled from a culture of authority to a culture of justification.1 The above is a profound departure from the following:2 Whether or not any legislative measure is calculated to promote or to harm these interests of the inhabitants, would be a matter of policy in the discretion of Parliament, into which our Courts would decline to enquire. These two statements by judges 37 years apart not only reflect the evolution of the legal culture in Namibia since Independence, they also manifest the jurisprudential polarity between a natural law approach and legal positivism.3 According to some South African academics, positivism, as a legal theory, is to blame for the terrible track record of the judiciary in respect of the protection of civil liberties in apartheid South Africa4 (and, by extension, Namibia prior to Independence). This is chillingly demonstrated in R v Sachs, where the following was stated:5 Courts of law do scrutinise such statutes with the greatest care but where the statute under consideration in clear terms confers on the Executive autocratic powers over individuals, courts of law have no option but to give effect to the will of the Legislature as expressed in the statute. Where, however, the statute is reasonably capable of more than one meaning a court of law will give it the meaning which least interferes with the liberty of the individual.
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