4 Namibia’s Long Walk to Freedom The Role of Constitution Making in the Creation of an Independent Namibia Marinus Wiechers or almost two decades, constitution From mandated territory making lay at the heart of Namibia’s to independent state peacebuilding and national recon- Namibia, the League of Nations, ciliation initiatives. In many other countries F and the United Nations ravaged by internal and external strife, or ha- rassed by a prolonged struggle for indepen- After World War I and Germany’s defeat, the dence from colonial or foreign rule, consti- allied powers established the erstwhile Ger- © Copyrighttution making came almost byas an appendixthe Endowmentman colony of South West Africa ofas a man - to the final peace agreement and settlement date under the supervision of the League of of a date for independence. In Namibia, Nations.2 South Africa was given the sacred thehowever, United constitution making States was a means Institutetrust of promoting theof material Peace and moral to stimulate active politics and focus minds well-being of the less than two million people on the future of the country for more than in the territory. To fulfill this mandate, South fifteen years. In this regard, Gretchen Car- Africa was allowed to administer the terri- penter aptly remarks that “the Namibian tory as an integral part of itself and required Constitution did not fall out of the sky; it is to report periodically to the League’s Man- the product of many years of negotiation and date Commission. South Africa made such political growth.”1 To understand the pivotal reports, but stopped when the League fell role of constitution making in the Namibian into disarray shortly before World War II. peace process, it is necessary to summarize After the war, although the newly estab- the genesis of Namibian independence. lished United Nations was not the succes- 81 82 Marinus Wiechers sor in law to the League of Nations, South light to the Trusteeship Council to receive Africa approached it in 1945, asking to have petitions directly from the inhabitants of the the mandated territory officially incorporated territory. The court’s opinions, although of into South Africa. The request was denied, great persuasive authority, had no binding and South Africa was instructed to place the force, and South Africa refused to give effect territory under the supervision of the Gen- to them. eral Assembly and its Trusteeship Council. In 1960, Liberia and Ethiopia, two former South Africa refused, leading to a prolonged members of the League of Nations, insti- feud in the United Nations and one of the tuted action against South Africa, request- most protracted legal battles in the Interna- ing the court to declare the forfeiture of the tional Court of Justice (the World Court). mandate on the grounds that South Africa, by applying its apartheid policies in the terri- tory, had betrayed its sacred trust of promot- The South West Africa/Namibia Cases ing the material and moral well-being of the in the World Court terri tory’s inhabitants. It was hoped that, this A full explanation of the weighty legal issues time, a court judgment with binding force raised in the South West Africa/Namibia would compel South Africa to relinquish its cases is beyond the scope of this chapter. Suf- claims to the territory, or at least comply with fice it to say that in many respects, the advi- UN demands.3 In 1962, the court judged the sory opinions, judgments, and separate opin- preliminary issues and found that it had com- ions of individual judges of the World Court petence to hear the case. But in 1966, with its regarding the case influenced and shaped in- president casting the deciding vote, the court ternational law on such fundamental issues held that the applicants had failed to prove as the succession and powers of international a legal right and interest in the matter and organizations, international peacekeeping, declined to give judgment. The result of the the jurisdiction of the court, and the inter- judgment was far-reaching. Whereas South national protection of human rights. Since Africa hailed the outcome of the case as a le- the court’s involvement supplied the legal gal victory and immediately went ahead with justification for the UN’s actions, it is nec- its plans to administer South West Africa as ©essary Copyright to give an overview of these by opinions the its ownEndowment province, member states of the Genof- and judgments. The General Assembly ap- eral Assembly condemned it vehemently. This proached the court for advisory opinions on led the General Assembly to revoke the man- threethe occasions. United In 1950, the courtStates advised date Institute in 1966, perhaps more of an act Peace of politi- that the General Assembly had the compe- cal offense and outrage than a legally sound tence to request South Africa to place the decision.4 In the ensuing years, however, the territory under its trusteeship, although it mandate’s revocation not only received Se- lacked the power to compel the mandatory curity Council support, but was also finally to do so. It also advised that the obligations endorsed by the World Court in its opinion of the mandatory under the new trusteeship of June 21, 1971. Nevertheless, South Africa agreement should not be more burdensome completely ignored the revocation. than the obligations that existed previously. In 1955, the court gave an opinion on the voting procedure in the Trusteeship Council The Revocation of the Mandate and Growing as opposed to the procedure of the former Internal and International Pressure Mandate Commission of the League of Na- Resistance to South Africa’s continued pres- tions. In 1956, a court opinion gave the green ence in the territory grew throughout the Framing the State in Times of Transition 83 1950s and 1960s, not only internationally but the various ethnic groups were convened to also in the territory itself. The South West debate the constitutional future of their coun- African People’s Organization (SWAPO), try. SWAPO refused to participate, however, the Ovambo-based liberation force in the and the United Nations—both the Security territory, started with military operations on Council and the General Assembly—con- the northern borders; with Cuban support, demned this exercise in constitution making this led to a low-intensity war that continued as an unauthorized act of unilateral indepen- almost to the end of the peace process.5 dence. Notwithstanding the fierce opposition In the mid-1970s, South Africa realized it provoked, the Turnhalle conference consti- that with growing international pressure and tuted a landmark in the processes of Namib- a multitude of UN resolutions calling for its ian constitutional development and politi- withdrawal from the territory, as well as the cal emancipation. Conference leaders were insurgency on the northern borders, the time taken to the United States, United Kingdom, had come to prepare the territory for inde- and Europe, where they met unofficially with pendence. However, South Africa still hoped members of government and leaders of polit- that the territory would adopt a kind of ical parties. In the territory itself, as well as in apartheid system of government that would South Africa, the conference and its deliber- ensure the white population a predominant ations received much publicity and exposure. position by assigning black and colored pop- Mainly through the leadership, charisma, and ulation groups to ethnic homelands, where foresightedness of Clemens Kapuuo, chief of they would enjoy the benefits, albeit limited the Hereros, and Dirk Mudge, member of the in some important respects, of citizenship white delegation and chairman of the confer- without being able to exercise direct power ence, a new political alliance of eleven ethnic in the central government.6 This no doubt political parties was formed; it was called the explains why the South African government Democratic Turnhalle Alliance (DTA).8 To- frequently interfered in the Namibian con- ward the beginning of 1978, the Turnhalle stitutional processes in the years before inde- conference adopted a constitution for an in- pendence, especially when it perceived that terim government,9 which was promulgated political developments in the territory would as law by the South African parliament. The © Copyrightcast doubts on the tenability by and feasibility the Endowmentelections that followed were conducted of on of its apartheid policies, not only in Namibia, the basis of proportional representation. Al- but in South Africa as well. Stated in very though the interim constitution did not in- thesimple United terms, what chance States did apartheid Instituteclude general principles of of goodPeace government, have to succeed in South Africa if it proved it provided for a justiciable bill of rights, to have failed in Namibia? a parliamentary regime, and decentralized government in the form of ethnic authorities with certain exclusive competences. The Turnhalle Constitutional Conference The ethnic component of the interim con- and the Democratic Turnhalle Alliance stitution—which was very much in line with On September 1, 1975, the Turnhalle Consti- the ideologies of the South African govern- tutional Conference was convened by the rul- ment and the white authorities in Namibia— ing white authority in the territory with the was a compromise that no doubt discredited support of the South African government.7 the constitution and the Turnhalle confer- The Turnhalle conference was a unique ex- ence in the eyes of SWAPO and the United perience with decisive political influence. For Nations. Both summarily rejected this con- the first time in Namibia’s history, leaders of stitutional draft, but it received overwhelm- 84 Marinus Wiechers ing support in the countrywide elections held and especially because of the activities of the later in that same year.