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Human Rights and the Rule of Law in Namibia

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Human Rights and the Rule of Law in Namibia Human Rights and the Rule of Law in Namibia Edited by Nico Horn and Anton Bösl 1 This publication would not have been possible without the generous financial support of the Konrad Adenauer Foundation (KAF). Please note that the views expressed herein are not necessarily those of the KAF. KAF is not responsible for the opinions presented in this publication. Konrad Adenauer Foundation P.O. Box 1145 Windhoek [email protected] www.kas.de/namibia © Konrad-Adenauer-Stiftung and the Authors 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. First published: 2008 Second edition: 2009 Cover design: Anton Bösl and John Meinert Printing The cover design is based on a painting by Helen Lieros from Gallery Delta, Harare, Zimbabwe Content editors: Nico Horn and Anton Bösl Language editor: Sandie Fitchat Publication design: Anton Bösl Layout: The Word Factory Printed by: John Meinert Printing (Pty) Ltd Publisher Macmillan Namibia PO Box 22830 Windhoek Namibia Tel. (+264 61) 232165 ISBN 978-99916-0-915-7 2 Table of contents Contributors 5 Foreword 9 Peter Shivute Foreword to the 2nd edition (2009) 10 Norbert Lammert List of abbreviations 11 Introduction 13 Nico Horn and Anton Bosl The rule of law in Namibia 17 Sam K Amoo and Isabella Skeffers The constitutional jurisprudential development in Namibia since 1985 39 Sam K Amoo Traditional governance and African customary law: Comparative observations from a Namibian perspective 59 Manfred O Hinz The justiciability of social, economic and cultural rights in Namibia and the role of the non-governmental organisations 89 John Nakuta Third-generation human rights and the protection of the environment in Namibia 101 Oliver C Ruppel The protection and promotion of human rights in Namibia: The constitutional mandate of the Ombudsman 121 John Walters 3 Human rights and the rule of law in Namibia The Human Rights and Documentation Centre at UNAM 131 Oliver C Ruppel International human rights norms and standards: The development of Namibian case and statutory law 141 Nico Horn The implementation of international and regional human rights instruments in the Namibian legal framework 165 Francois-Xavier Bangamwabo The universality of human rights: Challenges for Namibia 187 Salome M Chomba The rule of law in sub-Saharan Africa – An overview 213 Peter Shivute Appendix 221 Constitution of the Republic of Namibia 4 Contributors Amoo, Sam K is currently the Head of Department and Senior Lecturer in the Private and Procedural Law Department at the Faculty of Law at the UNAM. He obtained a LLM from the University of Toronto; a BA LLB from the University of Zambia and a BBA from the University of Ghana. His last/latest publication: Amoo, SK. 2008 [Forthcoming]. Introduction to law, materials and cases. Windhoek: Macmillan Namibia. [email protected] (+264 61) 246 141 Bangamwabo, Francois-Xavier is a Lecturer in the Faculty of Law at the UNAM. He holds a LLM from the National University of Ireland and a LLB from the University of Zimbabwe. His last/latest publication: F-X Bangamwabo. 2006. The independence and the impartiality of ad hoc international criminal tribunals: The case study of the International Criminal Tribunal of Rwanda. Dublin: University of Ireland. [email protected] (+264 61) 206 3766 Bösl, Anton is the Resident Representative of the Konrad Adenauer Foundation for Namibia and Angola. He holds a PhD in Philosophy from the Ludwig Maximilians University in Munich and a PhD in Theology from the Albert Ludwigs University in Freiburg. His last/latest publication: A Bösl et al., (Eds.). 2007. Monitoring Regional Intergration in Southern Africa - Yearbook Volume 7 - 2007. Stellenbosch: Trade Law Centre for Southern Africa. [email protected] (+264 61) 22 55 68 Chomba, Salome is a researcher at the Faculty of Law at the UNAM. She is an LLM candidate at the UNAM. Ms. Chomba holds a LLB and B Juris from the UNAM. [email protected] (+264 61) 206 3664 5 Human rights and the rule of law in Namibia Hinz, Manfred O is currently a Professor in the Department of Public Law and Jurisprudence in the Faculty of Law at the UNAM. Prof. Hinz holds a PhD in Law from the University of Mainz and PhD in Philisophy (Habilitation) from the University of Bremen. He holds the UNESCO Chair for Human Rights and Democracy, Human Rights and Documentation Centre, Faculty of Law, UNAM. His last/latest publication: Hinz, MO & HK Patemann (Eds.). 2006. The shade of new leaves. Governance in traditional authority: A southern African perspective. Münster: Lit Verlag. [email protected] (+264 61) 220541 Horn, Nico is currently the Dean of the Law Faculty at the UNAM. He was formerly a William Paton Fellow at the University of Birmingham. Prof. Horn holds a PhD from the University of the Western Cape; a MA from the Nelson Metropolitan University; a LLM from the University of South Africa; BTh (Hons) from the University of South Africa and a B Proc from the University of Johannesburg. His last/latest publication: Horn, N & PJ Schwikkard. 2008. Commentary on the new Namibian Criminal Procedure Act, Volumes 1 and 2. Windhoek: Orumbonde Press. He is a co-drafter of the recent Confession against nuclear armament: Evangelicals for National Security through International Cooperation. [email protected] (+264 61) 206 3622 Nakuta, John is currently the Head of Department in the Department of Public Law and Jurisprudence, Faculty of Law, University of Namibia. He is a PhD candidate at the University of Maastricht. He holds a LLM from the University Utrecht; a LLB from the University of South Africa; a diploma in Higher Education Diploma from UNAM and an Education Diploma from the Perseverance College of Education in South Africa. His last/latest publication: Jauch, Herbert & John Nakuta. 2008. Understanding Namibia’s Labour Law: A guide to the Labour Act (No. 11 of 2007). Windhoek: Labour Resource and Research Institute. [email protected] (+264 61) 206 3773 6 Human rights and the rule of law in Namibia Ruppel, Oliver C is a Senior Lecturer at the Faculty of Law, University of Namibia and the Director of the Human Rights and Documentation Centre at UNAM. He is the Regional Resource Person to the World Trade Organisation for ‘Trade and Environment’ in Southern Africa. He holds a LLD from the University of Pressburg; a MM from the University of Hagen; a LLM from the University of Stellenbosch; a Dipl Phil from the University of Munich and a LLB Hons (German State Law Exams). His last/latest publication: Hinz, MO & OC Ruppel (Eds.). 2008 [Forthcoming]. Customary law, biodiversity and the protection of the environment: Case studies from Namibia. Windhoek: Namibia Scientific Society. [email protected] (+264 61) 206 3664 Shivute, Peter is the Chief Justice of the Republic of Namibia. He was formerly a Regional Court Magistrate and Judge President, before being appointed as Chief Justice. He holds a LLM from the University of Warwick; a MA LLB from the University of Cambridge; a Diploma in Development Studies and Management and a Diploma in Legal Studies which he obtained in Zamiba. In his capacity as Chief Justice, he is the Chairperson of the Judicial Service Commission and Chairperson of another statutory body, the Board of Legal Education. [email protected] (+264 61) 279 901 Skeffers, Isabella is the Programme Officer at the Konrad Adenauer Foundation in Windhoek. She is a Candidate legal practitioner at the Justice Training centre at the UNAM and a LLM candidate at the same University. Ms Skeffers hold the LLB and B Juris degrees from the University of Namibia. Her last/latest publication: Geraldine Mwanza Geraldo and Isabella Skeffers. 2007 (online). Researching Namibian law and the Namibian legal system. New York. Hauser Global Law School Program; available only at http://www.nyulawglobal.org/globalex/Namibia.htm. [email protected] (+264 61) 225568 7 Human rights and the rule of law in Namibia Walters, John is the Ombudsman of the Republic of Namibia. He holds a BA; LLB from the University of the Western Cape. Before his appiontment as Ombudsman in 2004, Adv. Walters was appointed as acting Attorney General of the Republic of Namibia. Before that, he worked for the Ministry of Justice as a Prosecutor and later as a Magistrate, at several stations around Namibia. His last/latest publication: Walters, JR. 2006. Special report on conditions prevailing at police cells throughout Namibia. Windhoek: Office of the Ombudsman. [email protected] (+264 61) 207 3111 8 Foreword It is recognised that there are differences of opinion as to the definition of the concept rule of law. There may also be divergent views as to whether there exists a nexus between the rule of law, democracy, and sustainable economic and social development. These differences in definition and understanding of the concept have led to misunderstandings and even contradictions in the implementation of the rule of law. It is, however, uncontroversial that the rule of law plays a crucial role in the protection and promotion of human rights, democracy and transparent governance. According to the World Bank, the rule of law prevails in countries where the government itself is bound by the law, every person in society is treated equally under the law, the human dignity of each individual is recognised and protected by law, and justice is accessible to all. In deciding whether or not to invest in a particular country, genuine investors meticulously examine, among other things, a state’s commitment to the rule of law and the effectiveness of its institutions.
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