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Namibia's Long Walk to Freedom © Copyright by the Endowment of The

Namibia's Long Walk to Freedom © Copyright by the Endowment of The

4 ’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 making lay at the heart of Namibia’s to independent state and national recon- Namibia, the , ciliation initiatives. In many other countries F and the ravaged by internal and external strife, or ha- rassed by a prolonged struggle for indepen- After War I and ’s defeat, the dence from colonial or foreign rule, consti- allied powers established the erstwhile Ger- © Copyrighttution making came almost byas an appendixthe Endowmentman of South West ofas a man - to the final agreement and settlement date under the supervision of the League of of a date for . In Namibia, Nations.2 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 “ 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, and , 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 policies in the terri- tory, had betrayed its sacred trust of promot- The /Namibia Cases ing the material and moral well-being of the in the World Court terri­tory’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 , 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 conference consti- that with growing international pressure and tuted a landmark in the processes of - 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 , , 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 , chief of they would enjoy the benefits, albeit limited the Hereros, and , 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. Seventy-eight percent Turnhalle conference and the DTA, there of voters supported the constitution for the was a growing awareness among some Secu- interim government, which was soon after rity Council members that South Africa, af- installed by an act of the South African par- ter all, was not as intransigent as it previously liament.10 Needless to say, neither the United seemed to be, and that a negotiated settle- Nations nor SWAPO recognized the interim ment on Namibia could well be attempted. government. This awareness led to the formation of the so-called , an unofficial body of representatives of the governments of A South African Administrator-General the United States, , the United King- With the installation of the interim govern- dom, , and West Germany. In 1978, ment in Namibia, the South African govern- the contact group managed to win the sup- ment abolished white representation for Na- port of the South African government and mibians in its own parliament and appointed all the Namibian political parties, including an administrator-general with wide-ranging SWAPO, for a comprehensive peace and legislative and administrative powers to pre- independence process. The Western contact pare Namibia for eventual independence. group’s negotiated agreement was endorsed The newly appointed administrator - imme by the Security Council as Resolution 435 diately abolished some of the most offen- (1978); in the ensuing years, this resolution sive applicable in the would form the basis for the entire political territory11 and remained in Namibia until transition up to the elections and indepen- independence. As representative of his gov- dence. However, South Africa (backed by ernment, he played a most important role in the United States) refused to have Resolu- preparing the transition. It was with him that tion 435 implemented as long as the Cubans the special representative of the United Na- maintained their presence in . At tions, , concluded the agree- that time, the fear of communist intrusion ments of the final phases of the peacekeep- into Africa was not farfetched, and on these ing and electoral processes in 1989. The grounds, the reluctance to implement Reso- ©­administrator-general Copyright also assumed by full leg the- lution Endowment 435 can be appreciated to a certain of islative and administrative functions for the extent. The dispute concerning the Cuban territory when the South African govern- presence in Angola dragged on for a full ten ment,the in 1983, United dissolved the interim States govern- years Institute and was resolved only of in 1988,Peace when ment.12 He promulgated Proclamation AG 8, South Africa, Angola, and entered which retained the ethnic authorities of the into a trilateral agreement. Under the terms interim constitution. In the ensuing year, a of that agreement, Resolution 435 was to be multiparty conference with a broader political implemented and Cuban forces withdrawn party representation—still without SWAPO in accordance with an agreed timetable. participation—was convened to reach con- sensus on a new permanent constitution. The 1982 Constitutional Principles Resolution 435 prescribed the peace process, Security Council Resolution 435 (1978) the conducting of free and fair elections un- In the years of internal political develop- der UN supervision, and the formation of a ment and turmoil leading to independence, constituent assembly to draw up and adopt Framing the State in Times of Transition 85

a constitution for an independent Namibia. lem of a transitional authority. In this respect, The resolution did not, however, indicate at the resolution made it clear that transitional all what the nature and content of such a authority would remain with the South Afri- constitution should be. The internal political can administrator-general, who would exer- parties perceived this as a serious shortcom- cise his powers and functions in conjunction ing. In early 1981, an all-party conference with the UN special representative. Thus, in Geneva tried to reach agreement on this a breach in the transition was avoided and matter but did not succeed. The conference, the need for interim governing authorities however, did succeed in the sense that - before independence rendered moot.14 The ers of all the political parties and formations abandon­ing of South African authority dur- formally came together for the first time to ing the transitional period also would have express their views on a future constitution. created considerable political tension and cer- Through vigorous U.S. initiative, the West- tainly would have jeopardized the electoral ern contact group managed to reach an agree- processes. However, although the general po- ment with all the interested parties, including litical situation during the transitional period the so-called —the African improved and, as a result of the administrator- states that shared borders with Namibia— general’s abolition of the most offensive apart- the Organization for African Unity, South heid laws, human relations also became more Africa, SWAPO, and the internal politi- relaxed, there still were mistrust and tensions. cal parties, on the principles concerning the These existed not only among the ethnic constituent assembly and the constitution groups that feared Ovambo domination but for an independent Namibia. In July 1981, also among whites, a large number of whom these principles, which came to be known strongly resented the idea of an independent as the 1982 constitutional principles, were Namibia and were prepared to express their submitted by the Western contact group in a sentiments by violent means. letter to the secretary-general of the United Nations with the request that both the let- ter and principles be treated as a document The United Nations Transition Assistance Group of the Security Council. From the ensuing (UNTAG) © CopyrightSecurity Council resolutions by as well theas fur- EndowmentOn April 1, 1989, Resolution 435 of entered ther negotiations between the Council and into force. Under it, South Africa would South Africa, it can be deduced that the continue to administer the Namibian terri- theprinciples, United although not States formally adopted Institutetory and the administrator-general of Peace would or- and incorporated into Resolution 435, were ganize elections, but UNTAG would super- effectively considered as part of it. At the vise and control all aspects of government to constituent assembly’s first meeting after the the extent required to ensure that the central elections on November 21, 1989, it resolved objective—the creation of conditions for free to adopt the 1982 constitutional principles and fair elections of a constituent assembly— as a “framework to draw up a constitution was achieved. for South West Africa/Namibia.”13 UNTAG, for most of its mission, had Resolution 435 was a remarkable exercise about 4,300 military, 1,500 police, and up in international strategy and diplomacy inso- to 2,000 civilian personnel. At the time of far as it not only provided the parameters for the elections in 1989, UNTAG personnel the conduct of the peace and independence reached a total of 7,900 with 109 nationali- processes but also settled the difficult prob- ties represented. Total UNTAG outposts, in- 86 Marinus Wiechers

cluding military, were almost 200. UNTAG’s The DTA defeated SWAPO in many south- task was of a considerable magnitude and ern districts. is described by Martii Ahtisaari, the Spe- Immediately after the elections, the UN cial Representative of the UN Secretary- special representative declared them to be General, as follows:15 free and fair in accordance with Resolution The [peace] process would move step-by-step, 435, and a seventy-two-member constit­- from a cease- in a long and bitter war, to the uent assembly convened for its first session on final moment of transition, that of indepen- November 21, 1989. According to principles dence. Each aspect—cease-fire, confinement to of proportional representation and based on the base, demobilization, withdrawal of troops, the outcome of the elections, SWAPO held the continuous process of supervising the con- forty-one seats, the DTA twenty-one seats, duct of the local police, the release of political prisoners,16 the repeal of discriminatory laws, and the other five smaller parties ten seats. the adoption of the general amnesty and the re- turn of many thousands of Namibian refugees; then the process of registration for elections, The Constituent Assembly and Constitutional the political campaign, the voting itself—all Proposals of the Political Parties had to be completed to my satisfaction, as the Before describing constitutional develop- Representative of the Secretary-General of the United Nations, and in accordance with the Se- ments after the elections, it is important curity Council’s mandate.17 to note preceding events that relate to the role of the constitutional council established in 1985. In November 1983, six political The 1989 Elections parties—excluding SWAPO, the Damara council, and other minor parties—assem- Elections for the constituent assembly were bled as a multiparty conference to draft a held from November 7 to November 11, so-called permanent constitution. On April 18 1989. Altogether, 701,483 voters registered 18, 1984, the multiparty conference reached for the election and 670,830—just over 97 agreement on a bill of fundamental rights percent—cast their votes. During the elec- and objectives, which, together with other tions, on November 9 and 10, 1989, a momen- constitutional proposals, was presented to the ©tous occurrenceCopyright took place in Eastern by Europe the South Endowment African government along with aof call that would directly affect the constitution- for an interim government of national unity. making process in Namibia: The Berlin Wall In 1985, the administrator-general instituted fell,the marking United the beginning ofStates the demise by Institute proclamation the second of interim Peace govern- of communist hegemony. SWAPO emerged ment, following the first interim government as the winner in the Namibian election, with that the South African government had in- nearly 60 percent of the vote and almost to- stalled in 1978. The proposed bill of funda- tal support by the Ovambo; the DTA polled mental rights and objectives was included in almost 30 percent, whereas the remaining the proclamation as an integral part of the votes were distributed amongst the smaller constitution of the interim government. parties. In accordance with Resolution 435, Although instituting an interim govern- the elections were run on a proportional ba- ment—and especially adopting a bill of fun- sis, but because the territory, for election pur- damental rights and objectives—raised vehe- poses, was divided into electoral districts, it ment opposition from SWAPO and other was more than evident that SWAPO gained political parties, it did serve an immeasurably its major support in the northern parts of the important purpose in helping to create a hu- territory that were inhabited by the Ovambo. man rights culture. Because transgressions of Framing the State in Times of Transition 87

the bill were made justiciable, a number of achieve unanimous support for its draft, as major human rights judgments resulted, both four of the eighteen participant parties re- in the Namibian courts and the South Af- fused to give their assent. With its clear re- rican appellate division, which remained the jection of any form of institutionalized ethnic final court of appeal for Namibia at that time. categories, the draft constitution also failed The task laid upon the South African court to meet the South African government’s ap- to judge human rights issues was extremely proval, and was therefore never implemented. challenging and certainly presented a most The administrator-general abolished the sec- important learning experience, especially in ond interim government shortly after that, light of things to come in South Africa itself. when the DTA withdrew. At that stage, South Africa had no justiciable After convening in November 1989, the bill of rights and the measuring of laws and newly elected constituent assembly imme- governmental acts against the provisions of a diately invited the participant political par- bill of rights, was completely foreign to South ties—that is, all parties that had gained seats African law and experience. It is remarkable in the seventy-two-member assembly—to that the South African human rights deci- submit constitutional proposals. The parties sions that emanated from appeals from Na- all submitted more or less complete constitu- mibia proved, in some cases, to be of major tional drafts. The proposals of two of the mi- significance, serving as precedents for post- nority parties, the United Democratic Front 1994 South African legal practice as well as and the National Patriotic Front, expressly judgments for the situation at hand. The dis- referred to the binding nature and applica- tinction between the legal treatment of hu- bility of the 1982 constitutional principles. man rights in Namibia and South Africa was The DTA proposals were virtually the same partly a result of UN oversight in Namibia, as the draft constitution developed by the but also largely a result of South Africa’s real- previous constitutional council, and, as the ization that the protection of minorities and council kept to the 1982 principles, the DTA individuals in Namibia—especially whites, proposal conformed to them as well.19 The most of whom also had South African citi- constitutional proposals of the two predomi- zenship—would depend on a bill of rights. nantly white minority parties, the National © CopyrightOne of the most important by steps thatthe the EndowmentParty and the Action Christian of National newly established second interim government (which together garnered about 3 percent of undertook was to request the white legislative the vote), included executive and legislative theCouncil United of South West AfricaStates to institute a Instituteorgans specifically organizedof Peace on ethnic and constitutional council responsible for drafting racial lines. a national constitution that would ultimately The SWAPO proposals were of major sig- be submitted to the electorate for approval. nificance. In August 1989, the party had cir- Some four months after the installation of culated its draft proposals in a working doc- the second interim government, in 1985, such ument prepared at their Institute.20 a council was established to draw up a consti- These proposals reflected East European ide­- tution for an independent Namibia. SWAPO ology and constitutional thinking insofar refused to participate, but eighteen other po- as they emphasized the idea of a party state litical parties were represented in the body. with party leaders exercising strong influence The council worked for almost two years on in both legislative and executive spheres.21 A a draft constitution. In June 1987, the coun- wide range of state and government princi- cil’s chairman had to report to the cabinet of ples was included without extending binding the interim government that it had failed to force or to them. The original 88 Marinus Wiechers

draft provided for the judicial protection of own proposals in the SWAPO draft and some basic human rights, but with strong were quite content to treat the document as a qualifications and extensive governmental working paper without having to accept it as powers of derogation and limitation. emanating from SWAPO alone. Ironically, Officially, the original SWAPO proposals this meant that SWAPO, although the vic- never saw the light of day; with the fall of the torious political party with support from 60 Berlin Wall and the overwhelming signs of a percent of the voters, officially had no consti- crumbling communist empire, the East - tutional proposals on the table. The SWAPO pean inspiration for these proposals suddenly initiative was no doubt a most valuable con- became extremely suspect. SWAPO then tribution to the assembly’s work, as it con- hastily had to convene a drafting committee solidated elements of most of the other pro- to draw up new proposals. The proposals even- posals, albeit in a somewhat crude and untidy tually submitted to the constituent assembly form. Moreover, general awareness that the were contained in a rather untidy document working document emanated from SWAPO that included almost verbatim many of the produced among SWAPO supporters a per- proposals of the other participant parties, ception of credibility and legitimacy for the especially those of the DTA. SWAPO’s pro- assembly’s work. posed bill of rights almost literally conformed Having lived through an extremely stress- to the 1984 bill of fundamental rights and ful year, and having been engaged in a hard objectives of the previous multiparty con- election campaign, assembly members were ference, which drew its inspiration from the not in the mood to tackle the working docu- UN Universal Declaration of Human Rights ment immediately and undertake the ardu- and the European Convention for the Pro- ous task of thrashing out the particulars of tection of Human Rights and Fundamental a new constitution. The December holidays Freedoms. The only element of the original gave them time to absorb the outcome and SWAPO proposals that remained related effect of the elections, especially among those to the rather extensive list of nonjusticiable population groups, such as Herero tradition- government principles on socioeconomic and alists and whites, who found it emotionally environmental affairs.22 difficult to cope with the idea of a mainly ©When Copyright the constituent assembly by met onthe Ovambo Endowment majority.25 of November 21, 1989, it was faced with the seemingly insurmountable task of drawing upthe a constitution United from a multitude States of pro- The Institute Drafting Panel of Constitutional of Peace Experts posals. Two breakthroughs of major signifi- Instead of immediately tackling the working cance occurred. First, the assembly decided document itself, the constituent assembly unanimously to adopt the 1982 constitutional appointed a three-member drafting panel of principles as a “framework to draw up a con- experts charged with presenting to the as- stitution for South West Africa/Namibia.”23 sembly a constitutional draft early in 1990. Second, Dirk Mudge of the DTA proposed, Three South African lawyers were appointed: and the assembly unanimously agreed, that Arthur Chaskalson, Professor Gerhard Eras- the SWAPO proposals be accepted not as mus of the University of Stellenbosch, and SWAPO proposals, but as a working docu- this author.26 In the assembly, these three ment that would serve as the basis for the members were jokingly referred to as the drafting of the constitution. The reason for “men from heaven” who, with celestial wis- this unanimous acceptance was obvious.24 dom, would have the almost impossible task All the parties recognized elements of their of preparing the constitutional draft. Framing the State in Times of Transition 89

It is an intriguing question why the con- related mainly to states of emergency and stituent assembly, notwithstanding the fact national defense, powers of the president, that an abundance of constitutional exper- and, particularly, matters concerning local tise was offered to it from all parts of the and regional government. An entire chapter world, decided to appoint three South Afri- on the second house of parliament, the na- can lawyers of whom two were — tional council, its composition, and its powers the Afrikaners being popularly perceived as of review also had to be drawn up. In addi- the original perpetrators of apartheid. On tion, and apart from necessary transitional a purely practical level, the answer to this provisions regarding the application of exist- question was quite simple: Assembly mem- ing laws and regulations, provision had to be bers knew that a future Namibian constitu- made for implementing the new constitution, tion would have its roots in the South Af- especially as far as election of the national as- rican legal system since the of sembly and the president was concerned. In the two countries remained the same. Also, the latter regard, the drafters proposed that the constitutional law and traditions of both the members of the constituent assembly be- countries were similar. On a deeper level, the come the members of the new national as- choice of South African lawyers might well sembly, which should elect the first head of have been the result of rather strong suspi- state. After the first , the presi- cions toward the “outside world.” In particu- dent would be elected directly by popular lar, the turmoil in Eastern Europe after the vote. In conjunction with the constitutional fall of the Berlin Wall created the sentiment draft, the drafters compiled a memorandum that the Namibian constitution should not to explain precisely the scope and meaning of be the product of some foreign experiment. each article and provision of their draft. This Assembly members conveyed to this author memorandum was submitted to the assembly the view that “we should rather have some together with the draft constitution. of our own people, and South Africans and we are family.” It should also not be forgot- ten that was and still is the lingua The Constitutional Committee franca of Namibia and is well understood by In mid-January 1990, the draft constitution © Copyrightmost members of the population, by althoughthe Endowmentwas submitted to the constituent of assembly all the proceedings of the constituent assem- and immediately referred to a specialist con- bly and constitutional committee were con- stitutional committee for scrutiny, discussion, theducted United in English. Moreover, States the assembly Instituteand preparation of a finalof draft.Peace27 The twelve- realized that appointing South African law- member committee was proportionally com- yers would go a long way toward dispelling posed of representatives of the political par- mistrust in the entire constitution-making ties in the assembly. The committee began its process, especially among white members of work on January 16, 1990, in closed sessions the population. to debate the draft with the panel of drafters. The drafters met in Johannesburg toward , who was to become the first the end of December 1989 and the begin- prime minister of independent Namibia, was ning of January 1990, drawing up a draft of elected the committee’s chairperson. the complete constitution based on the work- On January 22, 1990, the constitutional ing paper. Because the working paper, in cer- committee unanimously adopted the full tain respects, was incomplete and lacking in draft constitution and referred it to the con- detail, the drafters had to augment it in their stituent assembly for deliberation and adop- drafting. These lacunae in the working paper tion. The assembly unanimously adopted the 90 Marinus Wiechers

draft on February 9, 1990. The work of the to contradict their other SWAPO colleagues. constitutional committee was carried out in It was apparent that SWAPO members were camera without any direct press coverage. The not burdened with fixed party directives, reason for this secrecy, no doubt, was to aid which lent much openness to the discussions. the members in reaching consensus. Wide- In only one matter the SWAPO members ranging behind-the-scenes negotiations took expressed their views in concert and clearly place during the committee’s deliberations, under a party directive, namely that the fu- as it was felt that public exposure at such a ture president should not be a member of the sensitive stage could jeopardize the process. . However, there was extensive press coverage Having discussed and approved every of the debates in the constituent assembly, article and provision of the draft constitu- and the proceedings were open to the public. tion, on January 22, 1990, the constitutional Given that all the political parties were repre- committee unanimously approved the draft sented in the constitutional committee, very as a whole and referred it to the constituent little debate and certainly no major disagree- assembly.31 ment occurred in the assembly; unanimous support for the draft was reached without any difficulty.28 When the constituent assembly Adoption of the Constitution and Independence met in February 1990 for the final adoption After a discussion of the constitutional com- of the constitution, it had no fixed timetable. mittee’s draft constitution, the constituent as- However, because consensus was reached in sembly unanimously approved Namibia’s con- the constitutional committee, it took little stitution on February 9. Amendments to the more than a week for the assembly to adopt draft in the assembly related mainly to gram- the final constitution. More important was matical and editorial matters and did not in that the assembly already had decided on the any way alter the substance. With the new day for Namibia’s independence—, constitution meticulously tested against the 1990—which assuredly made drawn-out de- 1982 constitutional principles, the secretary- bates in the assembly impossible. general of the United Nations reported to the Discussions in the constitutional commit- Security Council on March 16, 1990: “The ©tee wereCopyright generally of a high standard by and thethe Constitution Endowment is to enter into force on Indeof- atmosphere most cordial.29 Approved amend- pendence Day. As the fundamental law of the ments were referred to the drafters, who, dur- sovereign and independent of Na- ingthe the same United night, would reformulate States new mibia, Institute the Constitution reflects of the Peace ‘Principles provisions and present them to the commit- for a Constituent Assembly and for a Consti- tee.30 Very few modifications of substance tution for an Independent Namibia’ adopted were made; the most important concerned the by all parties concerned in 1982.”32 position of the president vis-à-vis parliament. On March 21, 1990, Namibia became inde- The draft suggested that the president should pendent; the constitution entered into force; also be a member of parliament, but the com- the newly elected president, Sam Njoma, was mittee decided on a nonparliamentary head sworn in by the UN secretary-general33; and of state. Most of the other modifications were the new government assumed office after of a technical or editorial nature. having been sworn in by President Njoma. Another noteworthy aspect of the com- The constitution provided for a justiciable mittee’s deliberations was that SWAPO bill of rights and freedoms as well as a non- members constantly expressed individual justiciable set of principles of state policy. It opinions and convictions and were not afraid is noteworthy that under the constitution, the Framing the State in Times of Transition 91

fundamental freedoms not be dimin- it influence South Africa’s own constitution- ished or detracted from. An electoral system making and peace-building processes? of proportional representation underpinned the universally elected executive presidency as well as the national assembly. A prime The Central Role of Constitution minister became elected by the national as- Making in Conflict Resolution sembly from its own members, and a cabinet in Namibia of ministers was appointed by the president The effect of the Namibian constitution- from members of parliament. Decentralized making process in resolving both internal and government was instituted in the form of re- external conflict and in facilitating a peaceful gional councils, the members of which were transition to independence must be viewed in also elected proportionally within defined its particular Namibian context of past sys- constituencies. A national council, elected by tems of government, the land, and its people. members of the regional councils, would in In colonial times, the entire country fell the future form the of parlia- directly under the authority and powers of ment. Other important institutions created a German governor. German administra- by the constitution were the ombudsman, tion, however, did not extend fully over the a public service commission, and a security territory; the northern parts of Ovambo, commission. Finally, the constitution safe- Kovango, and Caprivi fell above the so- guarded the independence of the judiciary. called , which meant that there were On the strength of the November 1989 elec- no settler and very little colonial ad- tions, SWAPO gained 62 percent of the seats ministration in those parts. When South in parliament. President Njoma became the Africa took up its mandate in 1919, more first , also elected by the national or less the same administrative arrangement assembly. The transitional provisions of the was retained. In 1924, the territory was given constitution that converted the constituent a constitution, drawn up and passed by the assembly into the first national assembly (the South African parliament, which provided number of seats in both assemblies being the for limited self-rule under the overall sov- same) and provided for the first president ereignty of the South African parliament. © Copyrightto be elected by a majority by in the nationalthe EndowmentThis self-rule was given to the whiteof part of assembly were necessary to have the major the population only, with no provisions for institutions in place by independence. It was power sharing with other population groups. thequite United correctly realized thatStates fresh elections InstituteIn 1968, acting under of the Peace erroneous belief for the newly instituted organs of state would that it had won the South West Africa/Na- amount simply to a repetition of the Novem- mibia case in the World Court, the South ber elections; also, at that stage, they would African parliament adopted a new constitu- have been infeasible and totally unnecessary. tion for the territory, under which Namibia The extremely successful outcome of virtually became a fifth province of South Af- the Namibian constitution-making process rica. Again, whatever vestiges of the former proved beyond doubt that constitution mak- self-rule remained were left in the hands of ing could be a potent element in reducing Namibia’s white population. This direct take- conflict and building peace and national rec- over of the Namibian government certainly onciliation. But what were the salient features was also inspired by the policy of dividing of the Namibian constitution-making pro- Namibia into various ethnic homelands on cess? Does it hold any lessons for other coun- the same lines as the apartheid policies in tries and especially African countries? Did South Africa.34 However, the constitutional 92 Marinus Wiechers

situation changed drastically in 1978 when, To grasp the impact of the Namibian in preparation for eventual independence, constitution-making processes, a few ex- the 1968 constitution was repealed, the planatory remarks on the land and its peo- ­administrator-general was appointed to take ples should also be added. Namibia is a vast, direct control, and Namibian representa- largely arid and country. It is sparsely tion in the South African parliament was populated, with fewer than two million peo- terminated. ple.39 The majority of its inhabitants live in In short, it can be deduced that apart from the northern parts of Ovambo, Kavango, and its unofficial constitutional processes, Na- the Caprivi—the regions that fell outside mibia had its fair share of constitutional vi- the original field of German government cissitudes. However, population groups other administration and to this day consist of than the whites had little or no experience of tribal land with no commercial farming. For these constitutional arrangements and ma- many years, Ovambo workers moved to the nipulations since, for the most part, their south as laborers on farms and in the fish- homeland governments were under the direct ing industry under former migrant worker authority of commissioners-general who were regulations. The Hereros constitute another South African-appointed officials. Although dominant traditional group, mainly in the some members of the homeland govern- central parts of Namibia; they are fiercely ments were elected,35 most of these members traditional and led the war against the Ger- were traditional leaders. It could be said that mans, who severely reduced their numbers in until the advent of the Turnhalle conference, these military clashes. The Damara, probably formal political life among the peoples of the one of the oldest groups in the territory, were territory was extremely underdeveloped, ex- subjugated mainly by the Hereros, and in the cept, of course, among the white population. process lost their original language. Inter- On the other hand, informal political or- estingly enough, they form a heterogeneous ganization in the territory was alive and well. group that had much contact with and an These political organizations and activities understanding of most of the other groups. were, in the main, directed against the South The Tswana are a small group who originally African administration and the application migrated from neighboring . The ©of apartheid Copyright policies. In earlier years,by under the Bushmen Endowment are Khoi- and certainly of the League of Nations and more so when the original inhabitants of the territory; they the United Nations asked for a trusteeship led a nomadic life and were the most mar- agreement,the United the Hereros played States a major role ginalized Institute of all the groups. of The Peacewhite popu- under the leadership of the famous chief Ho- lation is mainly comprised of descendants sea Kotako and later under the leadership of of German settlers and South Africans who chief Clemens Kapuuo.36 In later years, when came to live in the territory after the con- the Hereros and chief Kapuuo took a more quest of Namibia by South African forces in conciliatory attitude and declared themselves 1915.40 In many respects, the various Namib- willing to participate in internal political and ian ethnic groups have some deep ethnic and peace processes,37 SWAPO increasingly took other cleavages among them. On the other over active resistance; in the beginning of hand, through the development of advanced the 1970s, it started a campaign of military transport and communication systems in the operations and incursions, operating mainly country,41 there was a widespread mutual un- on the Angolan side of Namibia’s northern derstanding not only of their differences, but borders.38 also of the common ground they shared. Framing the State in Times of Transition 93

In the context of Namibia’s history, politics, making is a valid and important means of peoples, and progress to independence, the achieving peace and creating conditions for process of conflict resolution and peacebuild- stability and national reconciliation. From ing in that country went hand in hand with this, it flows naturally that such participants constitutional reform and constitution mak- must know what a constitution and its im- ing; the latter processes were the means and, pact on the affairs of state are. This does not in essence, the vehicles for conflict resolution, mean that members of constitution-making peacebuilding and national reconciliation. Of bodies should all be constitutional experts; it course, some issues could not be resolved by is important to have trusted constitutional constitution making alone and had to be dealt advisers and expert committees to support with conjunctively to sustain and strengthen and guide the constitution-making process the peacebuilding process. The termination and also formulate agreements and deci- of the border war and the conclusion of a sions in constitutional terms, without forcing peace agreement were of vital importance, their ideas on the constitution-making body and the abovementioned trilateral agreement or manipulating the process. In this respect, among Angola, Cuba, and South Africa to the Turnhalle Constitutional conference of withdraw Cuban forces created the neces- 1975–78 provided valuable lessons. In that sary conditions for constitution-making to conference, excepting the members of the proceed. The creation of these conditions for white legislative assembly, who through their peace, although not directly related to con- training and experience in that body had con- stitution making, was not entirely divorced siderable knowledge of constitutions, almost from it; the political parties engaged in the all the other members were from ethnic au- making of the constitution were constantly thorities with little or no knowledge of con- informed of these developments and indeed stitutions and constitution making, as their attended some of the meetings at which the homeland constitutions had been drawn up termination of the war was discussed. for them by the South African government. Another issue that could not have been re- The Bushmen delegates had absolutely no solved by constitution making alone was the experience because there was no homeland matter of the South African government’s authority for them at all; the delegates them- © Copyrightpresence and role during the by period ofthe tran- Endowmentselves were mostly illiterate and of had little sition to independence. This depended on experience of modern towns and life. Simi- an agreement concluded among Namibia’s larly, the Tswana also did not come from a thede facto United government, South States Africa, and the Institutetribal authority, but wereof members Peace of a small United Nations. As mentioned above, this fledgling political party. The Damara eth- agreement, which materialized in the form nic authority, the Damara Council, refused of Resolution 435, was negotiated with all to participate. To have Damara representa- the interested political parties as well as the tion at the conference, members of a small Organization for African Unity and the so- Damara opposition party were invited. All called frontline states. Some of these transi- the delegations had constitutional advisers, tional arrangements eventually found appli- mainly South African lawyers and academ- cation in the constitution, but they were not ics, assigned to them—or, more precisely, the part of the constitution making itself. South African government told the home- The Namibian experience teaches that land authorities whom to appoint as their participants in a constitution-making pro- advisers.42 This author was approached by cess must agree and believe that constitution the Damara and Tswana delegations them- 94 Marinus Wiechers

selves, admittedly, in the beginning, with the the initiatives of the Damara and Tswana tacit consent of the conference conveners, delegations. Soon after the constitutional the white legislative assembly.43 The consti- committee’s work commenced, these delega- tutional advisers had regular meetings with tions presented the conference with a draft their respective delegations and drew up constitution for an independent Namibia, proposals for them. They did not participate comprising a bill of rights and providing for directly in conference deliberations, but fol- universal franchise and judicial review of all lowed the proceedings through microphones governmental laws and practices. Instead of in an adjoining venue. ethnic governments, it proposed a federation A major breakthrough occurred in the of northern and southern regions with two Turnhalle conference’s first week, when it autonomous legislatures and governments adopted a declaration of intent in which the for each of these two regions, as well as a cen- delegations declared themselves to be the true tral government composed of representatives representatives of the Namibian people and of the two regional legislatures and govern- took it upon themselves to exercise their right ments. The Damara and Tswana proposals of self-determination by adopting a constitu- met with outrage on the part of some of the tion for their country. A constitutional com- white delegates,45 but had the overall effect mittee of representatives of all the delegations of diverting plans for a federation based on was elected under the chairmanship of Dirk ethnic systems of government. Mudge. In the following two years, however, Eventually, when the Turnhalle constitu- the full conference assembled only sporadi- tion was adopted in 1978, it contained the cally, and the constitutional committee car- Tswana and Damara proposal for a bill of ried out the main work and deliberations. rights, but found a compromise in proposing There is every reason to believe that the second-tier governments, not to be exclu- government and some members of sively territorially based, for the various eth- the host body, the white legislative assembly nic groups. These governments would have of South-West Africa, had previously drawn exclusive jurisdiction over the so-called spe- up a draft constitution. This constitution, cial affairs of each . What con- drafted on classic apartheid lines, was to stituted special affairs for each group became ©create Copyright a United States of South-West by Africa the the boneEndowment of contention that eventually of led with self-ruling homeland governments and Dirk Mudge and his followers to break away a rather weak central authority to look after from the white ruling party. The latter’s in- mattersthe of Unitedcommon interest. InStates this federa- sistence Institute that matters such ofas agriculture Peace and tion of states, the white second-tier govern- transport should remain special affairs, even ment would be assured of a dominant po- though these matters were clearly geograph- sition. The South African government, no ically defined, proved that at the end of the doubt, thought that by presenting the United day, the ruling white party was not prepared Nations with a homeland-based constitution to engage in meaningful power sharing with endorsed by the constitutional conference, it other groups. The other fundamental point would satisfy the demands that the peoples of divergence between the ruling white party of the territory must themselves exercise and Mudge and his followers was the ruling their right of self-determination.44 party’s refusal to enter into alliance politics The South African government’s origi- with the other groups. nal scheme for a Turnhalle constitution—a What is of paramount importance, how- federation with ethnic state components— ever, is that the Tswana and Damara del- never saw the light of day, mainly due to egations, at the time of the Turnhalle con- Framing the State in Times of Transition 95

ference and also in later years, engaged in ­adopted, including for Dirk Mudge’s Repub- serious debate among themselves and other lican Party. This parallel process of develop- delegations on the meaning and importance ing party charters was of significance to the of a democratic constitution. Evening lec- later official constitution-making process be- tures, seminars, discussions, and workshops cause it emphasized the normative and over- were held on a wide range of topics pertain- riding force of constitutions in regulating ing to constitutions and constitution mak- matters of governance. In addition, the char- ing, as well as many substantive issues such ters required the creation of political party as the opinions and judgments of the World manifestos, in which participation in the offi- Court, systems of government, the role of cial constitution making for a future democ- political parties in a multiparty democracy, racy was contained as a clear goal. In other the international protection of human rights, words, all the political party charters pre- the role of the United Nations in Namibian pared the parties for the constitution-making affairs, and many other subjects. As a result, process. in the conference debates, members of these In the years following Turnhalle, consti- delegations expertly discussed constitutional tutional debate pervaded the political scene matters, even when some members of the and influenced all political developments. white delegation wanted to exasperate them The place and importance of a constitution with seemingly superior knowledge of these in a democratic system, as well as the vital matters. When the Tswana and Damara del- elements for its protection, were constant egations released their constitutional draft, themes in the 1978 elections and all the po- they held an international press conference litical campaigns leading to the final elec- at which they discussed and explained their tions in 1989. In the debates and decisions proposals, on their own, with considerable of the 1985 constitutional council, constitu- knowledge, understanding, and insight. The tion making was the central issue, and the infusion of constitutional expertise into the local press regularly reported on constitution debates tremendously enhanced the level of making and constitutional issues.47 discussion. It was most encouraging and in- In the DTA’s election campaigns and party deed heartwarming that even the Bushmen propaganda, it as well as most other internal © Copyrightdelegation started to participate by on itsthe own.46 Endowmentpolitical parties insisted that a constitution of At the time of the DTA’s formation, a had to be written in the hearts and minds of parallel process of unofficial constitution people to become a living document. Events themaking, United albeit of a more politicalStates nature, was Institutein Namibia before theof advent Peace of the final also taking place. As was mentioned above, constitution making certainly fostered this the delegations other than the whites were conviction. mostly representatives of ethnic authorities Another lesson to be learned from the and did not represent political parties. Even Namibian constitution-making process is the Damara and Tswana delegates, who for- that a future constitution must be inspired by mally represented political parties, had a very an abiding ideology, or more ideally, a clear rudimentary form of party organization. The definition of the nature of the state that the DTA was founded as an alliance of politi- constitution is to govern. For Namibia, this cal parties, however, which necessitated the clear definition was provided by the 1982 drawing up of the political parties’ constitu- constitutional principles, which laid down tions and their adoption by the party leader- that “Namibia will be a unitary, sovereign, ships and annual . Constitutions and democratic state.” Over and above the for all the alliance parties were negotiated and other specific instructions of the 1982 prin- 96 Marinus Wiechers

ciples that relate to the binding force of the on making the process successful. SWAPO constitution, the organization and powers of not only supported the constitution-making all levels of government, the electoral sys- process wholeheartedly, but simultaneously tem, the protection of human rights, and the pushed for its timely conclusion because it structuring of public services and local and knew that the coming into operation of an regional government,48 the constituent as- independence constitution was a prerequisite sembly had to ask itself constantly whether for SWAPO’s entry into government. Once a specific proposal would serve the goal of a date for independence was set, a prolonged founding a democratic state. This constant and protracted process of constitution mak- questioning found practical application, for ing would have been extremely perilous, as it instance, when the tenure of the head of state would have been perceived as a means of de- was discussed and it was unanimously agreed liberately obstructing SWAPO’s accession to that a life presidency or a presidency for more power. The minority parties also understood than two terms of office would be contrary the benefits that successful constitution mak- to the tenets of democracy. The 1982 consti- ing would hold for them, namely, a system of tutional principles were the guiding star of government under which political freedom the assembly’s deliberations. They came to be would be assured. Adopting a binding and known as the “holy cow” in the deliberations justiciable bill of rights would safeguard the of both the assembly and the constitutional personal liberty and security of all the minor- committee. Each time it was perceived that ity parties’ supporters in the face of possible a proposal would offend the “holy cow,” the abuse of power by the majority.50 chairperson would immediately rule the pro- The constitution contained two other ele- posal out of order. ments that attracted support for it from most Another rather obvious but essential citizens and assured its legitimacy among the ­element of the success of the Namibian broad population; these elements made the ­constitution-making process was that all population feel that it was their constitution. participants expected the process to benefit The first was the constitution’s express affir- their parties and themselves in some way. mative action article, which provided that, Stated differently, all participants, for some notwithstanding the constitutional prohibi- ©reason Copyright or other, assumed ownership by of thethe tion Endowmenton different forms of discrimination, of the process. Except perhaps for the three white parliament could enact laws that provided members of the erstwhile ruling National directly or indirectly for the advancement Party,the49 who United still harbored nostalgia States for the of Institutepersons who had been ofsocially, Peace economi- continuation of a constitutional connection cally, or educationally disadvantaged by past with South Africa, all the other parties were discriminatory laws and practices. In this re- fiercely patriotic and adamant about eventual spect, the position of women was explicitly Namibian sovereignty. By their total rejection mentioned. The second element that assured of any kind of ethnic divisions of the coun- broad popularity was a chapter on so-called try, they fully supported and indeed strongly principles of state policy. Although not en- propagated the concept of a . It forceable in a court of law, these principles can be said safely that these parties all entered gave the constitution a definite program- the elections as true freedom parties: All of matic character and enjoined the govern- them realized that the foundation of a sover- ment to promote the welfare of the people eign, unitary, and democratic Namibia would as well as take care of a broad range of other depend on the outcome of the constitution- matters, such as foreign relations and the making process, and were therefore bent country’s economic order. Framing the State in Times of Transition 97

Structure of the Process Public Participation in the Process In Namibia, the 1982 constitutional princi- There was little direct public participation ples simply provided that “in accordance with in the process in either the years preceding UN Security Council resolution 435(1978), the final constitution-making phase in Na- elections will be held to select a Constituent mibia or the final phase itself. Referendums Assembly which will adopt a Constitution and plebiscites were not part of the Namib- for an independent Namibia” and that “the ian constitution-making process, except a Constitution will determine the organiza- plebiscite organized for white voters in May tion and powers of all levels of government.” 1977 to ask them whether they favored the Nothing further was added about the way the installation of an interim government and constituent assembly would go about draft- independence of the territory on the basis of ing the constitution, setting a timetable, or a constitution to be adopted by the Turnhalle implementing the document—nor were any Constitutional Conference. Some 95 percent such provisions really necessary. There was a of the white voters answered in the affirma- general realization that the parties in the as- tive. A referendum was held at that time sembly, as a result of the considerable con- because the leaders of the white legislative stitutional expertise and acumen gained in assembly wanted to give force to the delib- the years leading up to the elections, would erations and decisions of the Turnhalle con- know how to proceed and reach agreement ference but on their conditions, namely, the on these matters. Moreover, it was apparent adoption of an interim constitution drawn that the time was ripe for Namibian inde- up on the lines of ethnic governmental struc- pendence and that most parties would press tures. Mudge and his followers were strongly for the constitution’s expeditious drafting and opposed to the idea of a referendum for the adoption. The way that the constituent- as white electorate only. The plebiscite’s effect sembly dealt with the rather vexed questions was largely overtaken by subsequent events, of installing the new government, applying especially the adoption of Resolution 435, the new constitution, and declaring indepen- but, importantly, it conditioned white voters’ dence bore ample witness to the assembly’s minds by preparing them to accept the idea © Copyrightastuteness and readiness to by assume the owner- Endowmentof eventual Namibian independence. of ship of its own constitution-making process. However, indirect public participation in Other countries, as a result of their par- the Namibian constitution-making process theticular United circumstances and States preceding events, Institutewas intense and stretched of overPeace many years, had to initiate and further strengthen their reaching its climax in the 1989 elections. This constitution-making processes, first by -ap indirect public participation underpinned pointing a constitutional commission, then the elections of 1978 and 1989, as elections by electing an interim authority. Namibia, and election campaigns clearly would be however, as a result of the experiences of the meaningless without public participation. preceding years and especially through the Election campaigns in Namibia were exten- internal constitutional and political devel- sive, and party political meetings and rallies opments that took place, was geared for the drew thousands of people, even in the remot- structuring of a relatively simple and efficient est parts of the country. Political rallies and constitution-making process: the straight- meetings—especially those of the DTA— forward election of a constituent assembly, were huge social events, with food, song, and which, it was realized, would be well equipped dance. The border war made some of the ral- to proceed with the process on its own. lies in the northern areas rather perilous at 98 Marinus Wiechers

times, but on the whole, these political events ern leadership, transcended pure traditional infused the country with social activity never leadership and achieved elite political stature. before experienced on that scale. In addition, The DTA—and more particularly, the white advanced communication systems spread po­- alliance party of Dirk Mudge, the Republi- litical messages over the whole land. In pre- can Party—was the major factor in broaden- independence days, SWAPO conducted a ing the basis of the Namibian elite among network of radio services from outside Na- the other population groups by drawing their mibia’s borders. SWAPO was never banned leaderships into the alliance. Without this formally in the years leading up to the 1989 broadening of the Namibian elite, the final elections, but its leaders were constantly ha- phase of the constitution-making process rassed and even imprisoned, making political would not have had its successful outcome. life and open participation extremely diffi- Though it might have become politically cult, if not impossible. Overall, the Namib- incorrect to acknowledge the crucial role of ian population was saturated with political some of the white elite, the success of the propaganda and information, much of the Namibian constitution-making process must latter relating to constitutional matters and to a large measure also be ascribed to Mudge the content of a future constitution for an and his followers, who not only wholeheart- independent Namibia. edly immersed themselves in the liberation The process of constitution making must movement, but also created the opportunities be driven by elites. It cannot be conducted for many other political leaders to join in the and successfully concluded solely by popular class of Namibian elites. initiative and mass movements. Elites have Receiving information surely also consti- to plan, conduct, and conclude the process of tutes a form of public participation, albeit a constitution making, although, admittedly, more passive one. The Namibian media and this process must, for its ultimate legitimacy, particularly its press played an important role be continuously sustained by popular support. in this regard. Over the years, Namibia had a Because political parties in Namibia were the well-developed radio system, and radio sta- major actors in planning and conducting the tions operated in the languages of the various constitution-making process, while at the population groups. In the preindependence ©same Copyright time vying for popular support, by a word the years, Endowment SWAPO’s radio station, the Voiceof should be added about the political party of Namibia, broadcasted extensively from leadership in that country. For a long time, . Namibia always had a relatively the white populationUnited supplied Statesthe strongest large Institute number of newspapers, of given Peace its small political party leadership, and largely because population numbers. Apart from the Afri- of their dominant position, its leaders consti- kaans press, there were also newspapers in tuted the elites of Namibian society. Most of English and German as well as newspapers the SWAPO leadership and elites had to flee in some of the indigenous languages, though the country during the years of transition, and these were mainly supplements of the Afri- some of them were imprisoned. This created kaans and English press. In 1978, the newly a gap among the elites of the country. Among formed DTA started its own party mouth- the other population groups, there were very piece, the Republican Press, which in later few political elites, except for some traditional years took over the German and one of the leaders such as chief Clemens Kapuuo and a English newspapers to become the strongest few others, who as a result of their political press company in the country. Understand- engagement and personal qualities of mod- ably, the Republican Press of the DTA, in its Framing the State in Times of Transition 99

early years, was fiercely partisan, but after in- sition of the assembly and public respect for dependence, it became more neutral without that body made an additional act of ratifica- entirely losing its character of being, if not in tion seem superfluous. direct opposition, then rather critical of gov- One proposal, considered by the committee ernment. Television service became available and rejected, has some potential relationship in the country toward the end of the 1970s with public participation: that the constitu- and was a forceful instrument in informing tion be subjected to a periodic review process. the population about political developments. Some authorities have suggested that such In the period leading up to the elections a procedure could be the occasion for pub- of 1989 and during the time of implement- lic participation on an ongoing basis, which ing Resolution 435, UNTAG also provided in some cases could offer opportunities for extensive information services. A total of participation over and above that associated forty-two regional and district centers were with adopting the final text. The proposal was established and provided the necessary in- rejected because the committee feared that formation network to assist in the process of such a procedure would create the impres- reconciliation. In addition, the UNTAG in- sion that the constitution was a precarious formation service produced 32 television pro- document that needed to be amended and grams and 201 radio programs in thirteen lan- changed. The committee feared that the cre- guages; it also distributed 600,000 UNTAG ation of such an impression might encroach shirts, buttons, stickers, pamphlets, and post- on the fundamental character of the text. ers. UNTAG regional and district officials spoke to local opinion formers, political par- ties, churches, and farmers, and directly con- Democratic Representation tacted the people. Admittedly, the UNTAG In Namibia, the question of democratic information campaign was not about constitu- representation in the constituent assembly tion making, but it reinforced the constitution- was not a bone of contention. It was simply making process tremendously in that it prop- agreed during the peace negotiations that agated the idea of free and fair elections for the various political parties would be repre- all. Such elections, of course, were an absolute sented in the constitution-making body. This © Copyrightprerequisite for the constitution-making by the pro- Endowmentlongstanding agreement eventually of found its cess that was to follow. place in Resolution 435 and the 1982 con- At least in indirect forms, public partici- stitutional principles. The elections for the thepation United in the overall constitution-makingStates Instituteconstituent assembly of established Peace the distri- processes was so wide-ranging and intense bution of power among the political parties that additional ratification of the final con- and could not be contested, as the UN spe- stitutional draft by means of a plebiscite or cial representative certified the elections to referendum was seen as unnecessary. It can have been free and fair.51 safely be said that public education in Na- At the commencement of the UNTAG mibia on constitutional matters, including operations, the relationship between the UN the contents of the final constitution as well special representative and the interim author- as future public participation in political af- ity, the South African administrator-general, fairs, was so effective that the legitimacy of was somewhat strained. Over time, however, the final independence constitution was en- the relationship became increasingly coopera- sured by the time the constituent assembly tive.52 The constitution contains a remarkable adopted it. Moreover, the nature and compo- provision regarding the administration of the 100 Marinus Wiechers

administrator-general as well as the previous question of ethnic representation certainly South African administration, stating53 that relieved the assembly of a massive burden; “nothing contained in this Constitution shall the matter presented no hurdle in delibera- be construed as recognizing in any way the tions about the future constitution. With re- validity of the Administration of Namibia by spect to the DTA in particular, affording the the Government of the Republic of South various ethnically based political parties an Africa or by the Administrator-General ap- equal status in the alliance defused any pos- pointed by the Government of the Republic sible ethnic conflict within its ranks. of South Africa to administer Namibia.” This The Namibian experience also offers a was a rather clever legal device to solve (or lesson for dealing with a political party or sidestep) the vexed problem of, on the one group that refuses to join in the constitution- hand, accepting the continuation of existing making process. With the support of the UN laws and regulations and not creating a break General Assembly, SWAPO refused to be in the evolutionary development, and on the part of the internal constitutional processes other hand, acknowledging the idea, which until the final stages, once Resolution 435 SWAPO held very strongly, that the South was implemented. This refusal by SWAPO, African administration was illegal after the however, did not deter the other parties from mandate had been revoked. In law, the pro- proceeding with their constitution-making vision did not affect the actual application efforts. In the end, these efforts bore fruit and of the relevant laws and regulations because certainly contributed to the ultimate success it did not declare them invalid, but merely of the country’s final constitution making. refused to recognize them as valid. In legal The lesson to be learned is that where groups theoretical terms, this provision is a textbook and parties are prepared to engage them- example of the so-called Normative Kraft des selves in constitution-making processes for a Faktischen—the normative force of an exist- future democracy, such initiatives should be ing factual state of affairs. encouraged. Eventually, it becomes almost The Namibian constituent assembly made inevitable that recalcitrant groups and par- no provision for any kind of representation ties, especially with the encouragement and on the basis of ethnic origin. This did not even coercion of the international commu- ©mean, Copyright as explained above, that there by were notthe nity, Endowmentwill follow the course of events and ofjoin marked ethnic divisions in Namibia. Active in the process. Admittedly, this approach can party politics to a large measure resolved this prolong the constitution-making process, but difficultthe United and potentially Statesexplosive element. it willInstitute help ensure its ultimate of legitimacy. Peace55 SWAPO, although predominantly Ovambo, included in its voting list many members of other ethnic origins, and some of these mem- The Timing and Sequencing bers held important positions in the party of the Constitution-Making Process and later government.54 Whereas SWAPO’s Timing issues have been addressed above and voting list basically was composed on the need only be summarized. First, in Namibia, strength of candidates’ rank and position in the conclusion of a peace agreement and the the party, the DTA’s list, in accordance with Cuban withdrawal of its presence in Angola its alliance nature, allotted an equal number were preconditions for applying Resolution of candidates to the respective alliance par- 435 and certainly created a propitious cli- ties. In this manner, equal ethnic representa- mate for the country’s final phases of con- tion in the constituent assembly was assured. stitution making. The fortuitous crumbling The political party solution to the vexed of the Soviet and communist hegemony was Framing the State in Times of Transition 101

a factor that saved the Namibian constitu- process. This is understandable, as Resolu- tion from many complications and burdens tion 435 was the concrete outcome of a long of political ideology. and complex process of peacebuilding, inter- Second, the prolonged process of Namibian national diplomacy, negotiation, and agree- constitution making no doubt gave internal ment. Put very succinctly, it could be said parties much opportunity to activate political that a country in transition, for its constitu- life and strengthen and position themselves. It tion making, ideally should have some type must be emphatically stated that a multiparty of map such as Resolution 435. democracy in Namibia would have been im- Sixth, Namibia had its fair share of ­interim possible if internal parties were not afforded constitutions and notwithstanding their im- these opportunities, as a political culture of perfections and lack of acceptance, they were multiparty democracy does not come easily, crucial in all the phases leading up to the fi- especially in African countries. nal constitution making. The effect and over- Third, the final phase of constitution mak- all value of these interim arrangements speak ing in Namibia was remarkably quick. The from the above. speed with which the process was concluded Finally, the role of the internal parties in must be ascribed to the host of internal and Namibia during the time when the conflict external factors described above, and was not was still raging and the international dis- achieved merely because, at a given point, in- putes continued unabated proved to have terested parties agreed to draft a constitution been of the utmost importance. Attempts at for an independent Namibia. constitution making in the 1970s were initial Fourth, the final Namibian constitution efforts that exercised a beneficial influence in emanated from a single draft, drawn from the final phase. The Namibian case demon- the constitutional proposals of the various strates the potential benefits for a country in parties—which was possible because the pro- transition of beginning the process of con- posals contained considerable points of con- stitution making as early as possible, even vergence. In a very real sense, the elections though such early constitution making may for the constituent assembly served three be rather hesitant and rudimentary. purposes: first, to elect an assembly; second, © Copyrightto inform the electorate what by would the be the Endowment of content of the future constitution; and third, The Role of the International to elect a future government. This explains Community thewhy theUnited assembly had the States legitimacy neces- InstituteFrom the end of World of War Peace I, the organized sary to form the new independence govern- international community’s part in Namib- ment. When the constituent assembly was ia’s journey toward independence was all- convened in November 1989, voters and pervasive and encompassing, culminating in political leaders already knew who, from a the implementation of Resolution 435 and political point of view, would be the future the deployment of UNTAG. The interna- government; the constitution was needed to tional community’s involvement in Namibia’s legalize this future government. This was cer- affairs was, of course, a direct consequence of tainly a factor that serves to explain why the the territory’s international status. process moved so smoothly and expeditiously Namibia’s international status flowed from from that point. the mandate system, and although South Fifth, Resolution 435, which underpinned Africa fiercely denied it for a long time, this the peace process in Namibia, was also the system was the justifying and determining guiding light in the constitution-making factor for international preoccupation with 102 Marinus Wiechers

the territory. What should not be forgotten can regime. This, of necessity, could severely is that, before independence, Namibia repre- damage relations with the Third World and sented the last vestige of colonial rule in Af- nonaligned countries. All these reasons ex- rica. This raised much emotion among Third plain why the Western contact group was so World countries in the UN General Assem- concerned to have Resolution 435 accepted bly, especially among African members. To by all interested parties and be put into op- them, what was infinitely worse was South eration. Namibia, certainly, was not a country Africa’s continued occupation of Namibia, of major importance, but the political impli- widely labeled as illegal after the revocation cations of the dispute there were immense of the mandate. The South African govern- and had international dimensions. ment itself became branded as “ Fortunately for Namibia, the involvement of a special kind.” Also, the buildup of the of the organized international community ul- after World War II increased and timately was spearheaded not by the General intensified the Namibian conflict. Support Assembly—with its at times disproportion- for the Namibian cause became the yardstick ate political emotions—but by the Security against which East and West identification Council and, more particularly, the Western with anticolonial movements and causes was contact group. The Contact Group’s even- measured. handed and diplomatic treatment of the Na- In those years, and especially in General mibian problem was to a large measure the Assembly debates, South Africa’s presence in reason for its successful outcome. Similarly, the territory and obduracy in the matter were the role of the then secretary-general of the constantly branded as threats to world peace. United Nations and his balanced way of deal- This was certainly far-fetched, but it has to ing with the obstacles as they arose deserve be understood in the context of the United credit. Namibia’s former international status Nations. The UN’s peacekeeping powers are as a was terminated at well defined in its Charter and mainly- re the time of independence when the country served for the Security Council. Over the acceded to its new international status, that years, however, the General Assembly be- of a sovereign independent state and full came more and more anxious to exercise member of the family of nations. Recogni- ©peacekeeping Copyright competences and to bybypass thethe tion Endowmentof Namibia’s independence on the basisof hurdle of a Security Council endorsement. of Resolution 435 immediately assured the When, in the 1960s, the Third World mem- country of de jure recognition by the inter- bersthe of the UnitedGeneral Assembly becameStates domi- national Institute community. of Peace nant, these new members understandably However, even as all Namibian parties tried to assume more and more peacekeep- recognized the international community’s ing powers on behalf of the Assembly. Their crucial role in Namibian independence, they identification of threats to world peace raised were set on the idea of preserving the autoch- the expectation that the Security Council thony of their constitution-making process. would become operative and discard its leth- There is little doubt that the 1982 constitu- argy. In the case of Namibia, the matter was tional principles that gave instructions about extremely sensitive. Neglect of the General the nature and contents of the future Namib- Assembly’s demands to have the Namibian ian constitution would not have gained the conflict treated as a threat or potential threat political parties’ acceptance had these prin- to world peace subjected the Western mem- ciples emanated from an outside source or bers of the Security Council to severe censure been imposed on them by the international for supporting the white racist South Afri- community. The constituent assembly’s ap- Framing the State in Times of Transition 103

pointment of three South African lawyers to crimination, socioeconomic development, re- write the draft constitution for them could gionalism, and democratic representation— be explained in the same way. all had to be considered in assuring the constitution-making process’s success. It can safely be said that the formal process of con- The Role of stitution making was never divorced from In the Namibian experience, with all its in- matters of substance. If it were not so, the ternational ramifications, the importance of process would have become hollow and would international law does not need to be em- not have contributed to peacebuilding and phasized. For years, the Namibian dispute national reconciliation. dominated the jurisprudence of the World Of special interest is the question of the Court. Other pertinent international law is- legal force of the 1982 constitutional princi- sues also pervaded the peace process, such as ples after the conclusion of the constitution- the competences of the United Nations and making process. Many would probably ar- its secretary-general, the Security Council’s gue that these principles, after having been peacekeeping powers, the status of political complied with, lost their binding force and prisoners, and the status of the effect; in other words, according to this rea- enclave.56 soning, the principles were mainly directed What is of overriding importance is that to the constitution-making process and, once the Namibian dispute, apart from having been absorbed into the constitution’s provisions, regulated by international law, also contrib- ceased to exert any legal force, except insofar uted to the progressive development of gen- as they assisted in constitutional interpreta- eral principles of international law as well as tion in the future. This author’s (more con- customary international law on such matters tested) opinion is that the principles were as international protection of human rights, preconstitutional inasmuch as they defined the elimination of racial discrimination, and the democratic foundations of the future the succession of international organizations. Namibian state. According to this reason- This development came about mainly as a ing, if a future government were to amend result of the World Court’s jurisprudence in the constitution and discard these principles, © Copyrightthe Namibia disputes and played by a consider the- Endowmentthe nature of a democratic Namibia of would able role in the court’s later decisions. be violated. Given that the principles con- Given the immense impact of interna- stituted the conditions for Namibian state- thetional United law in Namibian States affairs, it is little Institutehood, rejecting them ofarguably Peace would consti- wonder that the Namibian constitution ex- tute such a fundamental encroachment that pressly provided that unless otherwise pro- the international recognition of Namibia as vided in the constitution or an act of parlia- an independent democratic state could be ment, general rules of international law and affected.58 treaties binding upon Namibia under the constitution were to form part of the .57 Conclusion The Namibian constitution-making process was an unqualified success. It gave Namibians Essential Issues of Substance a modern constitution in which the protec- In Namibia, essential issues of substance— tion of human rights, the independence of the such as the protection of human rights, the judiciary, the accountability of government, elimination of racial and other forms of dis- the decentralization of government, and the 104 Marinus Wiechers

conducting of free and fair elections were resolve acute economic and social malaise. all constitutionally ensured and safeguarded. A third term of office for the president in Most important, it laid the foundations for 2000 was manifestly unconstitutional and a multiparty democracy. In this respect, the calls up the horrifying threat of an African people themselves, probably for the first time life presidency.59 It is said all is well that ends in Africa, totally rejected the concept of a well. This is surely true as far as the Namib- one-party state. Namibians are proud of their ian constitution-making process was con- constitution and the values it contains. What cerned; whether it is true for the continued is more, the Namibian constitution-making application and role of the constitution itself process, in many respects, gave invaluable remains to be seen. guidance and provided some important les- After more than sixteen years of inde- sons for South Africa’s constitution making pendence, the Namibian Constitution still in the . Perhaps the most important les- holds good. Notwithstanding the misgivings son was that a rigid apartheid regime could expressed, political party life is still active. peacefully evolve into a fully democratic A small but vibrant opposition party—the system. On a practical level, Namibian con- Namibia Democratic Party, which emerged stitution making taught South Africa the from SWAPO ranks—and other political importance of having a set of constitutional parties still enjoy all their constitutional principles in the making of a constitution. rights and freedoms. Most comforting, there The South African constitutional principles, are no signs of the constitution being side- adopted at the time of the drafting of the in- stepped or parts of it being suspended. In terim constitution, were accepted by all the its years of independence, Namibia has not parties as a solemn pact and provided the ba- known any or undergone sic tenets of the final constitution. any serious political upheavals. Yet there are disconcerting elements in The final word here belongs to Bryan the evolution of the Namibian constitutional O’Linn, staunch opponent of apartheid, sea- practice. A democracy should constantly be soned politician, and esteemed judge of the vigilant and guard against unconstitutional Namibian High Court: tendencies and developments. In Namibia, The question whether or not all the ideals of the ©a large Copyright part of the population, perhapsby outthe sacredEndowment trust of civilization have been realized of of complacency based on the fact that they can not be answered convincingly at this point adopted a model constitution, lost interest in time. The ideal of the self-determination of inthe practical United politics. This apathy States has led to Institutethe Namibian people has been of achieved. Peace How- ever, it still has to be seen whether the ideal will increased political maneuvering and abuse be realized of a lasting and enlightened democ- of power on the part of government. Pres- racy and compassionate society with substantial ently, opposition parties lack effective lead- economic and social benefits to all its people, ership, and the alliance parties of the DTA which not only ensures the protection of their human rights and freedoms, but enjoins them have lost their organization and coherence. 60 Concentration of power in the hands of cen- to meet their responsibilities. tral government and the neglect of regional and local institutions suggest a disturbing jacobinisme. The exaltation of Ovambo na- Notes tionalism does not augur well for national 1. Gretchen Carpenter, “The Namibian Con­- unity and reconciliation. The vital issue of stitution: Ex Africa Aliquid Novi After All?” necessary is addressed more to South African Yearbook of International Law, vol. 15 gain short-term political advantages than to (1989–90), p. 63. Framing the State in Times of Transition 105

2. There is a wealth of literature on Namibia, recommended that the territory should be divided its history, geography, peoples, politics, etc. Probably into homelands for the various ethnic groups and one of the most comprehensive and authoritative be governed on exactly the same apartheid lines as works remains John Dugard’s The SWA/Namibia in South Africa. After that, the recommendations Dispute (Lansdowne: Juta, 1973). of the commission were vigorously applied in the 3. At the same time, the court’s condemna- territory. tion of South Africa’s apartheid policies in the ter- 7. The Turnhalle is an old historical build- ritory would have had the much broader effect of ing in that was a gymnasium in German giving the United Nations a legal basis for attack- colonial times. ing the application of these policies in South Africa 8. Chief Clemens Kapuuo was assassinated as well. As it speaks for itself that should the court on March 27, 1978. To this day, his murder is un- have declared apartheid policies detrimental to the solved. After independence, President Sam Njoma material and moral well-being of the inhabitants of acknowledged Dirk Mudge, a white farmer and the territory, the same argument would hold against member of the ruling white legislative assembly, to South Africa, where identical policies were in place. have been one of two white leaders who contrib- A clear condemnation of its governmental policies uted most to the peace process in Namibia. Mudge, could have led to a questioning of the legitimacy of a leading member of the ruling white Nationalist the South African regime, as happened in the ensu- Party—in all respects an offspring of the ruling Na- ing years when the South African regime became tionalist Party in South Africa—realized that his branded as “colonialism of a special kind.” party would never win broad support among the 4. For a criticism of the legal grounds for the other population groups, and decided on March 18, revocation of the Mandate, see Marinus Wiechers, 1977, to break away and form the Republican Party, “South West Africa: The Background, Content, and founded on the express premise of joining the other Significance of the Opinion of the World Court of ethnic parties and forming the Democratic Turn- 21 ,” South Africa Journal of Foreign and halle Alliance (DTA). The breakaway by Mudge Comparative Law, vol. 5 (1975), pp. 123–70. and his followers created deep animosities among the Afrikaner community; it is only recently, years 5. SWAPO, although not exclusively after independence, that these rifts have closed. For Ovambo, draws its main support from that popu- an excellent account of the life and political career lation group. The Ovambo, who constitute more of Dirk Mudge, see At van Wyk, Dirk Mudge Reën- than half of the Namibian population, live mainly maker van die Namib (Pretoria: JL van Schaik Pub- in the northern part of the territory. The colonial lishers, 1999) (in Afrikaans). border between South West Africa and Angola, as 9. The making of the 1978 interim consti- happened in many parts of Africa, divided the vari- tution adopted by the Turnhalle conference had a ous Ovambo tribes, although their ethnic ties and history of its own. At the end of 1977, deliberations © Copyrightsympathies remained. This explains by why the SWAPO Endowment of in the conference did not go well, especially as a could maintain its military operations on the north- result of the formation of the DTA and the clash theern borders United for so many years: States They were assured of Instituteof opinions between Mudgeof andPeace his followers on the support of the local populations on both sides the one side and the members of the white legisla- of the border. The Angolan government supported tive assembly on the other side. Members of other SWAPO from the outset. Jonas Savimbi’s insur- groups also increasingly felt that the conference gency against the Angolan government made him was just a ploy of the white government to have a a natural ally of the South African forces, and this kind of homeland constitution adopted. To assuage alliance remained until the end of the struggle for feelings, the legal advisers were asked to find some independence. In South Africa, the border war was common ground and to draw up a working docu- justified as a war against communist expansion; the ment for further discussion. In December 1977, Cuban presence lent credibility to this conviction. the legal advisers met in Pretoria and this author The restriction of the border war to the northern was asked to draw up such a working document. confines of the territory allowed political parties Instead, a draft interim constitution was drawn up and groupings other than SWAPO to develop their and laid before the conference. The prompt draft- constitutional experiences and political organiza- ing of an interim constitution aroused considerable tion in a relatively peaceful manner. emotions among the members of the ruling white 6. In 1962, the South African government party and the South African government, especially appointed a commission for South West Africa that as the draft constitution proposed that South West 106 Marinus Wiechers

Africa’s name should be changed to Namibia. In force was removed when the constituent assembly, at the minds of these members, the name Namibia its first meeting, took it upon itself to adopt them. was synonymous with UN interference and implied 14. That the South African parliament ad- support for SWAPO, as during those years, the UN opted the Recognition of the Independence of General Assembly (but not the Security Council), Namibia Act 34 of 1990 is proof, constitutionally came to regard SWAPO as the “sole and true repre- speaking, of the evolutionary nature of Namibian sentatives of the people of Namibia.” Eventually, the independence and the transfer of sovereignty. In conflict was resolved when the conference opted for international law, transfer of sovereignty to an in- the name South West Africa/Namibia. This name dependent Namibia posed a problem. As a result of remained until independence. the revocation of the mandate in 1966, South Africa 10. The elections, which gave the vote to all ceased to exercise legal authority over the territory. adult Namibians, were hurriedly organized with- Thus, strictly speaking, South Africa’s emancipatory out proper voter registration and other necessary power to confer sovereignty to an independent Na- safeguards. There is every reason to believe that the mibia also ended. The United Nations also did not 78 percent was inflated and even manipulated. have such authority under its charter. This problem However, the elections were important in that in­ was solved by Resolution 435, under which it was fluential religious leaders supported them and that agreed that South Africa’s de facto administration all Namibians, for the first time in history, were of the territory would be recognized for the purpose given the opportunity to have a voice in their own of transferring sovereignty. However, it was also destiny. The result was that the masses flocked to agreed that the Namibian constitution would not the voting polls notwithstanding the opposition by mention South Africa’s bestowing of sovereignty the United Nations and SWAPO. and independence. Looking at the process from 11. For instance, the laws prohibiting mixed a constitutional law perspective, it can well be de- marriages and sexual relations between the races. scribed as evolutionary rather than revolutionary. 15. Martii Ahtisaari, “Foreword,” South Afri- 12. The dissolution of the interim govern- can Yearbook of International Law, vol. 15 (1989–90), ment was a result of deep-seated differences -be p. ix. tween Dirk Mudge, the chairman of the interim cabinet, and the then–South African president P.W. 16. The administrator-general released all but Botha. Whereas Mudge wanted more autonomy for sixteen political prisoners; after reconsideration by his interim government, Botha insisted on a definite an independent arbiter, Professor Norgaard, another entrenchment of the rights of the white popula- nine were released. See Gerhard Erasmus, “Namib- tion. In those years, especially with the rise of white ian Independence and the Release of Political Pris- right-wing opposition, Botha and his government oners,” South African Yearbook of International Law, were extremely wary of being seen to sell the white vol. 14 (1988–90), p. 137. ©man outCopyright in South West Africa. by the Endowment17. To quote Ahtisaari, “Foreword”: of “The 13. For a full account of the background, Namibian exiles repatriated by the UN High Com- content, and application of the 1982 constitutional missioner for Refugees were 43,332, and they came principles,the seeUnited Marinus Wiechers, States “Namibia: The from Institute forty countries of exile. of The Peacediscriminatory 1982 Constitutional Principles and Their Legal laws repealed in whole or in part were fifty-six. The Significance,” South African Yearbook of Interna- political prisoners released under the UN required tional Law, vol. 15 (1989–90), pp. 1–21. Immedi- amnesty were thirty.” ately after the elections, there were some misgivings 18. Notably, the UN secretary-general, during among some of the internal political parties that the his visit to Namibia in July 1989, negotiated a code 1982 principles were not binding and constituted of conduct for political parties that was adopted by mere guidelines. The South African administrator- the ten parties that registered for the election. general tried to assuage these fears by incorporat- 19. Bryan O’Linn, Namibia: The Sacred Trust ing the principles in his proclamation governing of Civilization, Ideal and Reality (Gamsberg: the constitution-making process. The UN special Macmillan Press, 2004), p. 357. representative strongly opposed this, quite correctly 20. The Lusaka Institute was a SWAPO re- contending that such an incorporation would have search institute, predominantly funded by East Eu- made the principles seem to be South African pre- ropean governments, which in the drew up scriptions, depriving them of their legitimacy. Fortu- political plans and formulated constitutional pro- nately, all doubt concerning the principles’ binding posals for a postindependent Namibia. The institute Framing the State in Times of Transition 107

also gathered and disseminated valuable informa- their own justiciable bills of rights. During my years tion regarding exiles, political prisoners, and socio- of active participation, I drew up several charters economic conditions in Namibia generally. of human rights for implementation by the busi- 21. For instance, in these original proposals, ness communities and other organizations. During it was foreseen that political parties would have the these years, I also had frequent informal contact authority to recall their disobedient members in with SWAPO and ANC leaders; because I was a the legislature. Such a proposal was dropped from teacher of constitutional law at the University of the final SWAPO proposals. South Africa, the world’s pioneering university for 22. On matters such as emergency powers as distance teaching, it happened that SWAPO and well as the powers of the executive, regional, and lo- ANC leaders in exile or prison knew my writings cal governments, the SWAPO proposals were very and teachings, as many of them, including Nelson cursory, no doubt because the proposals had to be Mandela, were my students. produced in such a very short time. 27. It was rumored at that time that some 23. Constituent Assembly Resolution of No- members of the constituent assembly felt that the vember 21, 1989. panel of drafters, in drafting a complete constitu- tion, went beyond the limits of their mandate. This 24. The only members with serious misgiv- author, however, could never discover the grounds ings about the SWAPO proposals and the decision for their objections. It is presumed that some mem- to use them as a working document were the repre- bers—especially those of the minority opposition sentatives of the two white minority parties. On the parties who previously had positions of power and other hand, they realized that their objection would influence—hoped that the constitution-making pro-­ have no effect, as resolutions of the constituent as- cess would take much longer so that they could sembly, in accordance with Resolution 435, were to settle their affairs under the existing regime. The be taken with a two-thirds majority. promptness with which the panel of drafters pre- 25. In fact, on November 20, 1989, the Her- sented them with a fully-fledged constitutional draft ero council issued a statement that it was not pre- certainly took them by surprise. pared to accept an Ovambo government. 28. During its first meeting in November 26. Justice Chaskalson is one of South Af- 1989, the constituent assembly resolved to have rica’s most prominent and respected lawyers; for the constitution adopted by a two-thirds majority. years he excelled as a human rights lawyer and was However, since complete consensus was reached, a leader in the field of legal aid movements. He applying this resolution became unnecessary. gained a reputation as one of the country’s staunch- 29. This was most remarkable, as at the com- est opponents of apartheid, and in the 1950s and mittee table were members who suffered personally 1960s was a legal counsel in the Mandela trials. © CopyrightIn the 1993 Kempton Park conference by forthe a new Endowmentunder apartheid, and also opposition members of who South Africa constitution, he played a leading role as former dissidents of SWAPO in previous years in the constitutional technical committee and later, suffered severely in SWAPO punishment camps. It theafter theUnited first democratic elections States in 1994, was ap- Institutewas also most encouraging of that thePeace apprehensions of pointed president of the first South African consti- the representative of the white minority party were tutional court. Professor Gerhard Erasmus, a native addressed sympathetically and with understanding. of South West Africa, was a well-known academic 30. Differences and serious clashes of opin- writer on matters of international law and also a ion were often diverted to the panel of drafters by known opponent to apartheid policies. This author’s blaming them for not having considered all aspects own involvement in Namibian politics went back to of a particular matter sufficiently. It was sometimes the Turnhalle conference and the ensuing political jokingly said that the lack of wisdom on the part of and constitutional development within Namibia. In the “men from heaven” was perhaps proof that they South Africa, I had the reputation of being a consti- were not from heaven, but from the other place. The tutional activist and, although I was mainly involved drafters understood this as a necessary diversion to in governmental and other informal processes, my avoid open conflict or acrimony. At the close of de- personal conviction, during those years, was that liberations, the drafters received effusive praise and constitution making on various levels could break words of thanks from all members. up monolithic apartheid structures. For this reason, 31. Close scrutiny of the constitution reveals I drafted constitutions for the independent home- many idiosyncrasies on the part of individual mem- lands of and , each with bers. For instance, Article 10(2) reads: “No persons 108 Marinus Wiechers

may be discriminated against on the grounds of sex, the 1960s to 1989 and was elected by the assembly race, colour, ethnic origin, religion, creed or social or as Namibia’s first head of state. economic status.” Discrimination on the ground of 39. There are eleven ethnic groups inNa- sex was mentioned first and foremost because the mibia: the Ovambo, Kovango, Caprivians, Hereros, only woman member of the committee felt strongly Damara, Tswana, Nama, , the (a that discrimination on the ground of sex was worse small group of mixed European and indigenous than any other kind of discrimination. The other origin), the Bushmen, and the Whites. Being such members of the committee, all males, agreed. In the a small population, Namibians were familiar with committee, individual personalities were significant, the leadership of the various groups. It was amazing and again, it was Dirk Mudge who gave direction at the time of constitution making how well those and guidance in many respects. It was clear that no leaders knew each other, even though some of them proposal would get full support, not even among all spent years in exile. SWAPO members, if Mudge himself did not sup- 40. Whites in Namibia became greatly at- port it. tached to their new country over the years, which 32. S/20967/add 2. SC Document. explains why, after independence, there was no sig- 33. It was considered inappropriate and po- nificant exodus of whites from the country. More- litically incorrect that the new president should be over, many of the white leaders, especially those who sworn in by the South African head of state, as such joined the DTA, regarded themselves as very much an act would have created the impression that Na- part of the independence processes. This, however, mibia was a former colony of South Africa. does not deny that for many years, the majority of 34. The 1968 constitution was also an act of whites in Namibia strongly supported the National defiance in the face of the UN General Assembly, Party of South Africa and were loyal members of which unilaterally revoked the mandate in 1966. the National Party of South West Africa, which was 35. The elections for homeland governments in all respects a daughter party of the South African were poorly supported, especially when resistance party. This also explains why the rift in the party to the application of these South African apartheid that occurred when the DTA was formed was such policies grew. The political formations that partici- a traumatic and bitter experience for many whites. pated in these homeland elections were generally 41. As a result of South Africa’s war efforts very rudimentary and, for the most part, organized on the northern borders, the transport and commu- and funded by the South African government in nication systems in the northern outreaches became Pretoria. very advanced. This factor, namely the development 36. In those earlier years, the Herero regu- of an excellent infrastructure, served the election larly petitioned the Mandate Commission and later campaigns and eventual peace processes admirably ©the UNCopyright General Assembly; this practice by led thethe and wasEndowment crucial to UNTAG’s peacekeeping task. of General Assembly to seek a World Court opinion 42. Except for the Herero, chief Kapuuo, in in 1956. the beginning, was rather distrustful and appointed the37. The United fact that chief Kapuuo States was prepared two Institute American lawyers, but as allof the proceedingsPeace of to participate in the Turnhalle Constitutional Con- the Turnhalle conference were conducted in Afri- ference was of tremendous importance and was, kaans, the lawyers found it very difficult to follow to a large extent, the result of the personal friend- the process. Eventually, Fanuel Kosanguisi, a re- ship and trust between him and Dirk Mudge. To turned Herero exile and London barrister, became this day, Mudge is still regarded by members of the the Hereros’ adviser. After independence, he was traditional Herero Council as “the brother of chief appointed as the country’s first ombudsman. Kapuuo.” 43. The constitutional advisers were hand- 38. SWAPO was founded in in somely rewarded for their services by the South 1960. The founding leaders were Herman Toivo ya African government, through the various ethnic Toivo, who, following many years of incarceration, authorities. This author was an exception: When it became a member of the Namibian cabinet after soon became apparent that the Damara and Tswana independence; Murumba Kerina, who returned to were to take up an independent line of thinking, the Namibia from exile in the 1970s by invitation of the South African government refused any kind of re- South African government, founded his own politi- muneration or payment for expenses on the pretext cal party, and won a seat in the Namibian national that the appointment had not been ratified by any assembly; and Sam Njoma, who was in exile from ethnic authority. Private funding for expenses was Framing the State in Times of Transition 109

arranged. This is mentioned to demonstrate- con The Constitution will determine the organi- cretely that not all the conference participants were zation and powers of all levels of government. It paid puppets of the South African government, as will provide for a system of government with three SWAPO averred in the years to come. branches: a legislative branch to be elected by uni- 44. The direct inspiration for this political versal and equal suffrage which will be responsible move was the 1974 report of the special UN del- for the passage of all laws; and an independent ju- egate, Dr. Esscher, and his recommendation that fu- dicial branch which will be responsible for the in- ture independence of the territory should be worked terpretation of the Constitution and for ensuring its out by the people themselves in the exercise of their supremacy and the authority of the law. The execu- right to self-determination. See O’Linn, Namibia, tive and legislative branches will be constituted by p. 82. The South African government always insisted periodic and genuine elections which will be held that their apartheid and homeland policies were in- by secret vote. tended to afford other ethnic groups the opportunity The electoral system will seek to ensure fair to give effect to their right to self-determination. representation in the Constituent Assembly to dif- ferent political parties which gain substantial sup- 45. When open conflict between members port in the election. occurred and it seemed that the conference itself There will be a declaration of fundamental was in jeopardy, recourse would be had to prayer. rights, which will include the rights to life, personal After praying, members were more pacified and liberty and freedom of movement; to freedom of the debate could continue on a more conciliatory conscience; to freedom of expression, including note. Traditionally in Namibia, all official meet- freedom of speech and a free press; to freedom of ings as well as party political rallies, gatherings, and assembly and association, including political par- proceedings were opened by prayer. The Namibian ties and trade unions; to due process and equality population is overwhelmingly Christian, and the before the law; to protection of arbitrary depriva- churches wielded much influence in political affairs, tion of property or deprivation of private property with church leaders often assuming party political without just compensation; and to freedom from roles. Pastor Cornelis Njoba, who was assassinated racial, ­ethnic, religious or sexual discrimination. in 1985, was president of the DTA. The declaration of rights will be consistent with the 46. Bushmen members of the DTA remained provisions of the Universal Declaration of Human in politics, and two of them eventually became Rights. Aggrieved individuals will be entitled to members of the independent Namibian legislature. have the courts adjudicate and enforce these rights. The history of the Bushmen’s role in the Namibian It will be forbidden to create criminal offences constitutional process proves how strongly emanci- with retrospective effect or to provide for increased pating the experience of participation in constitu- penalties with retrospective effect. © Copyrighttion making can be on a human level.by the EndowmentProvision will be made for the balanced of struc - 47. This author became a regular writer of ar- turing of the public service, the police service and ticles on constitutional issues in the local press and defence services and for equal access by all to re- theaddressed United numerous church, States school, business, and Institutecruitment of these services. of The Peace fair administration agricultural associations. Speeches written by this of personnel policy in relation to these services will author for many of the DTA leaders concentrated be assured by appropriate independent bodies. on constitutional matters as central themes. At the Provision will be made for the establishment initial report-back meetings of the Turnhalle con- of elected councils for local and/or regional admin- ference and later, after the formation of the DTA istration (S/15287). when it became engaged in various election cam- 49. In the 1989 elections, the old National paigns, this author accompanied political campaign- Party was renamed Action Christian National, which ers, often to the remotest parts of the country, to then belatedly and without any real success preached give addresses on the constitution and constitutional alliance politics with other parties and groups. issues. 50. This is in essence the integrating and 48. The exact wording of these instructions emancipating force of a bill of rights, namely that read as follows: it not only empowers every individual against state The Constitution will be the supreme law of authority and power but also integrates individuals the state. It may be amended only by a designated into the operation and application of the constitu- process involving the legislature and/or votes cast in tion, as the constitution finally ensures that the bill a popular referendum. of rights is safeguarded. The protection that a future 110 Marinus Wiechers

bill of rights would afford to them convinced the when the right-wing white parties and Zulu-based former National Party members of the constitu- Inkatha Freedom Party initially refused to join or tional assembly to vote for adopting the constitu- later threatened to withdraw from the process. tion, notwithstanding the severe reservations they 56. South Africa, perhaps justifiably, main- had in many other respects. As it turned out, these tained that Walvis Bay was never included in the very same members, after independence, fulfilled mandated territory and therefore fell outside UN valuable roles as part of the opposition to the gov- jurisdiction. The constitution, in a sense, preempted ernment, and were—and still are—held in high gov- the whole matter, including in art. 1(4) the Walvis ernment and public regard. Bay enclave in its identification of Namibian state 51. Immediately after the elections, there were territory. After independence, South Africa and Na- rumors of malpractices and election fraud. This was mibia, through agreement and international conven- to be expected, as the elections evoked much fervor tion, settled the matter and the Walvis Bay enclave and raised many expectations. However, the special was incorporated into Namibia. representative’s certification ended these rumors, 57. Art. 144 of the constitution, therefore, and during the process of actual constitution mak- does away with the requirement of express incorpo- ing, the distribution of power among the parties that ration by act of parliament. See Gerhard Erasmus, resulted from the elections was never contested. “The Namibian Constitution and the Application 52. See Ahtisaari, “Foreword,” p. xi: “As for of International Law,” South African Yearbook of In- South-African co-operation, mutual suspicion was ternational Law, vol. 15 (1989–90), p. 90. prevalent at the beginning, but there was a steady 58. See Wiechers, “Namibia,” p. 17. relaxation, especially, I believe, as the objectivity and 59. This clear breach of the constitution was professionalism of UNTAG became accepted. At a justified on the ground that the president’s first number of levels, the co-operation was excellent.” election was not by direct popular suffrage, but by 53. Art. 145(2) of the constitution. the new national assembly, whereas the constitu- 54. For instance, Captain Hendrik Witbooi tion prescribed two terms of office by virtue of -di of the Namas was vice-president of SWAPO, and rect, popular suffrage. This clearly goes against the both the later prime minister (Mr. Geingob) and original intent. Surely, a presidential term of office minister of foreign affairs (Mr. Ben-Guriab) were is a term of office, notwithstanding the method of Damara. election. 55. In a real sense, this is what happened in 60. O’Linn, Namibia, p. 390. the South African constitution-making process © Copyright by the Endowment of the United States Institute of Peace

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