Constitutional democracy in Namibia A critical analysis after two decades Edited by Anton Bösl, Nico Horn & André du Pisani A This publication would not have been possible without the generous financial support of the Konrad Adenauer Foundation. Please note that the views expressed herein are not necessarily those of the Konrad Adenauer Foundation and of the editors. Konrad Adenauer Foundation P.O. Box 1145 Windhoek [email protected] www.kas.de/namibia © Konrad-Adenauer Stiftung and the Authors 2010 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. Cover design: Red Sky and Anton Bösl Content editors: Anton Bösl, Nico Horn & André du Pisani Language editor: Sandie Fitchat Printing: John Meinert Printing (Pty) Ltd Publisher Macmillan Education Namibia PO Box 22830 Windhoek Namibia Tel. (+264 61) 225568 ISBN 978-99916-2-439-6 B Table of contents Foreword .......................................................................................................................iii Peter H Katjavivi Introduction .................................................................................................................... v Anton Bösl, Nico Horn and André du Pisani List of contributors ......................................................................................................xiii Abbreviations .............................................................................................................. xix SECTION I CONSTITUTIONAL DEMOCRACY AND GOOD GOVERNANCE The paradigm of constitutional democracy: Genesis, implications and limitations ...... 3 André du Pisani The concepts of rights and constitutionalism in Africa ................................................ 17 joseph diescho The impact of the Constitution on state- and nation-building ...................................... 35 Henning Melber The Namibian Constitution: Reconciling legality and legitimacy ............................... 45 Marinus Wiechers SECTION II THE GENESIS OF THE CONSTITUTION OF THE REPUBLIC OF NAMIBIA The forerunners of the Namibian Constitution ............................................................ 63 Nico Horn Drafting of Namibia’s Constitution .............................................................................. 83 Hage G Geingob The genesis of the Namibian Constitution: The international and regional setting ... 109 Theo-Ben Gurirab The art of compromise: Constitution-making in Namibia ......................................... 119 Dirk Mudge SECTION III CHALLENGES WITHIN THE NAMIBIAN CONSTITUTION Justice: Beyond the limits of law and the Namibian Constitution ............................. 149 Manfred O Hinz i Table of contents In dubio pro libertate: The general freedom right and the Namibian Constitution .... 169 Stefan Schulz The constitutionality of Namibia’s territorial integrity ............................................. 191 Lazarus Hangula Constitutional jurisprudence in Namibia since Independence ................................... 199 George Coleman and Esi Schimming-Chase The paradigm of equality in the Namibian Constitution: Concept, contours and concerns ............................................................................................................... 215 Dianne Hubbard Constitutional supremacy or parliamentary sovereignty through back doors: Understanding Article 81 of the Namibian Constitution ............................................ 251 Francois–X Bangamwabo International law vis-à-vis municipal law: An appraisal of Article 144 of the Namibian Constitution from a human rights perspective ........................................... 261 Yvonne Dausab Namibia’s constitution, democracy and the electoral process .................................... 287 Gerhard Tötemeyer Intellectual property under the Namibian Constitution .............................................. 299 Sam K Amoo and Sidney L Harring Labour hire in Namibia: Constitutional right or modern slavery? ............................. 311 Fritz Nghiishililwa Environmental rights and justice under the Namibian Constitution .......................... 323 Oliver C Ruppel Amendments to the Namibian Constitution: Objectives, motivations and implications ................................................................................................................ 361 Sacky Shanghala ii Foreword Peter H Katjavivi Writing about global democracy and global justice in his book, The idea of justice, Professor Amartya Sen states the following: Over hundreds of years, writers on justice in different parts of the world have attempted to provide the intellectual basis for moving from a general sense of injustice to particular reasoned diagnoses of injustice, and from there to the analyses of ways of advancing justice. Traditions of reasoning about justice and injustice have long – and striking – histories across the world. The paradigms of democracy and constitutionality came from the European and Western tradition. Their meanings underwent substantial transformations and were shaped over the centuries. Despite different regional perceptions, they have become widely accepted as the leading concepts in political thinking on how a state is constituted and how a country is run. Constitutionality refers to the state or nation being constituted by a (basic) law which lays down rules for the operations of a political system and government. Its code of rules provides normative guidance for the conduct of both government and the entire citizenry. Constitutions are an affirmation of the relevance of the rule of law. To prevent a constitution from being authoritarian, it must enjoy the support of the citizens by reflecting their values and virtues. Therefore, any modern constitution must enshrine democratic principles, processes and practices. Only a democratically motivated constitution enjoys the broad support of the citizens and can be considered a living constitution. The Constituent Assembly of Namibia, elected in the country’s first free, fair, and democratic elections in 1989, was tasked with drafting a constitution for the future independent state. It became the National Assembly – the first Parliament of Namibia – on 21 March 1990. This marked the transition from oppression to democracy, from the illegal South African occupation, with its racist system of laws, to the acknowledgement of the equal dignity and rights for all Namibians. In this context, the contribution of the United Nations in supervising and controlling the elections to ensure that they were free and fair, and international support in the endeavour to write a constitution for the new nation, should be acknowledged. The Namibian Constitution is regarded as one of the most modern and progressive basic laws worldwide, with constitutional principles, a bill of rights, the separation of powers, and democratic order. After 20 years, Namibia’s constitutional democracy is formally fully established. The Constitution is the supreme law of the land and the normative guideline for the entire citizenry and its government. iii Foreword The past 20 years of constitutional democracy have brought political stability to the country. However, democratic values as inherent principles and premises of the Constitution need to be more fully developed and democratic procedures must be upheld at all times. Economic and social challenges also need to be met to live up to the economic and social rights enshrined in the Constitution. Not only do 20 years mark a generation, they are also a good standpoint from which to evaluate the achievements of constitutional democracy in Namibia. This is the purpose of this publication. It includes contributions by some of the participants in the drafting of the Constitution who share their reflections on the process and the challenges they faced in this important and unique exercise. The various articles presented here examine Namibia’s achievements and challenges over the past two decades. As a member of the Constituent Assembly and participant in the drafting committee that crafted the Namibian Constitution, I welcome this publication as a timely initiative. It is my hope that this book will deepen the understanding of constitutional democracy, strengthen constitutionality and the rule of law, and contribute towards the ongoing promotion of democratic principles, processes and values in Namibia. Professor Sen also states the following: Democracy has to be judged not just by the institutions that formally exist but by the extent to which different voices from diverse sections of the people can actually be heard. He points out that this way of seeing democracy can have an impact on the pursuit of it at the global level: If democracy is ... seen ... in terms of the possibility and reach of public reasoning, the task of advancing – rather than perfecting – both global democracy and global justice can be seen as eminently understandable ideas that can plausibly inspire and influence practical actions across borders. Peter H Katjavivi Member of the Constituent Assembly, 1989–1990 Member of the National Assembly and the Pan-African Parliament References Sen, Samartya. 2009. The idea of justice. London: Allen Lane. iv Introduction Anton Bösl, Nico Horn and