Für Elza: Ich weiß was es heißt, eine Hilfe zu haben.....wieder. I thank my supervisors (Proff MO Hinz and G Winter) for their guidance. INTERPRETING THE INTERPRETERS: A CRITICAL ANALYSIS OF THE INTERACTION BETWEEN FORMALISM AND TRANSFORMATIVE ADJUDICATION IN NAMIBIAN CONSTITUTIONAL JURISPRUDENCE 1990 - 2004 JOHANNES NICOLAAS HORN Submitted in accordance with the requirements For the degree Dr Iuris In the subject CONSTITUTIONAL LAW AND JURISPRUDENCE At the UNIVERSITY OF BREMEN PROMOTER PROF MO HINZ CO-PROMOTER: PROF G WINTER JUNE 2016 1 INDEX CHAPTERS AND SUB-CHAPTERS Page No CHAPTER 1 GENERAL OVERVIEW 6 1.1 Introduction 6 1.2 Modus operandi 13 1.2.1 The inclusion of the Supreme Court of SWA/Namibia Judgments during the time of the Transitional Government of National Unity 14 1.2.2 Analysing the judgments with reference to the Bench 16 1.2.3 The Choice of Cases 17 1.2.4 The South African Debate 18 CHAPTER 2 LEGAL HERMENEUTICS, OPPRESSION AND APARTHEID 21 2.1 Introduction 21 2.2 Hart and Dworkin, interpreters in times of transition 25 2.3 Hinz (Allott) and the limits of law 31 2.4 Southern African Judiciary and Apartheid 33 2.5 Transformative Constitutionalism 40 2.6 Positivism a Problem? 52 2.7 Summary 58 CHAPTER 3 THE TIME BETWEEN THE TIMES: CONSTITUTIONAL INTERPRETATION IN PRE-INDEPENDENT SOUTH WEST AFRICA/NAMIBIA 60 3.1 Historical Background 60 3.2. Katofa: The first challenge for the Interim Government 62 3.3 Constitutional Developments after Katofa 67 3.4 More legal challenges after the Chikane case 71 3.5 The Supreme Court of SWA/Namibia and oppressive South African legislation 72 3.6 Conclusion 78 2 CHAPTER 4 THE NAMIBIAN CONSTITUTION 80 4.1 Introduction 80 4.2 The Influence of Namibian Groups in the Development of a Constitution 82 4.2.1 The Constitution and the 1982 Principles 83 4.2.2 Constitutional Developments in the SWAPO Party from 1976 87 4.2.3 Constitutional Developments in the Turnhalle grouping 92 The Windhoek Declaration 92 The Hiemstra Constitution 93 4.2.4 Conclusion 94 4.3 The Namibian Constitution as a Transformative Instrument 98 CHAPTER 5 TAKING OWNERSHIP OF THE CONSTITUTION 104 5.1 Introduction 104 5.2 S v Acheson: The First Test for Constitutionalism 104 5.3 The Effects of the Release of Acheson on the Outcome of the Case 108 5.4 The Outcome of the Case 109 5.5 Kleynhans and Others, a Different Scenario 112 5.6 Acheson, Kleynhans and a Hermeneutic of Justice 116 5.7 Value-Based Judgments: Ex Parte Attorney General: In Re Corporal Punishment by Organs of State 121 5.7.1 Reactions 129 5.7.2 Traditional Authorities 130 5.7.3 Final Comments 132 5.8 Interpreting the Independence of the Prosecutor-General in Independent Namibia 132 5.8.1 The Historical Independence of the Prosecutor-General 134 5.8.2 The Independence of the Prosecutor-General vis-à-vis the Attorney-General 136 5.8.3 A Different Approach: The Supreme Court was wrong 141 5.8.4 The Prosecutor-General as an Independent Office 143 3 5.8.5 South Africa: a short comparison 145 5.8.6 The Pikoli and Simelane saga 148 5.8.7 Concluding Remarks on the Case 151 5.8.8 The On-going Issue of Independence: Are the Employees of the Office Prosecutor-General Public Servants? 154 5.9 Due Process and the Constitution 159 5.10 A Clash of Theories and a Hierarchy of Rights: The Kauesa Cases 164 5.10.1 The Process of Deconstruction in Kauesa 177 5.10.1.1 Understanding Deconstruction 177 5.10.1.2 Deconstruction in Kauesa 180 5.10.2 Concluding Remarks 183 CHAPTER 6 THE END OF EUPHORIA: CRITICAL CHALLENGES 188 6.1 Introduction 188 6.2 The Police Docket: A Break with the Past 190 6.3 Freedom of Expression and Hate Speech 192 6.4 Reaction from the Government 203 6.5 Constitutional issues that did not end in Court 207 6.5.1 The Third Term 207 6.5.2 The Homosexual Issue 208 6.5.3 The Abortion Issue 211 6.6 Conflict in the House: Government and the Judiciary 213 6.7 The Powers of the Attorney General and Prosecutor-General Revisited 216 6.8 The Gender Cases 219 6.8.1 The Cautionary Rule Applicable to a Single Female Witness in Sexual Related Trials 220 6.8.2 Sexual Orientation and the Constitution: The Frank Case 224 6.8.2.1 The High Court 224 6.8.2.2 The Supreme Court 228 6.8.2.3 The Interpretive Key of the Judgment 231 6.8.2.4 The Limits of the Law 236 4 6.9 Minority Rights 238 6.10 The Independence of the Judiciary: The Magistracy 243 6.11 The Right to Legal Representation: The Relationship 252 Between the Human Rights Covenants and the Constitution CHAPTER 7 ANALYSIS 263 The Interpretive Models of the Superior Courts of Namibia 263 7.1 The Development of a Constitutional Model: Freedom and Constraint, Objectivity or Value-based Subjectivity 264 7.2 Evaluation of a Positivist Challenge to Value Judgements 275 7.3 Transformation and Socio-Economic Rights 283 7.4 Transformative Constitutionalism and Judicial Review 286 7.5 The Executive and the Judiciary 291 7.6 Judges and their influence 295 7.7 Final Conclusions 304 BIBLIOGRAPHY 315 ADDENDUM 344 5 CHAPTER 1 GENERAL OVERVIEW 1.1 Introduction On 16 January 1989, the Security Council adopted Resolution 629 determining 1 April 1989 as D-day for the implementation of Resolution 435,1 preparing the way for the independence of Namibia. The United Nations supervised the elections in November 1989, with SWAPO gaining a conclusive victory. On 21 March 1990, Namibia became independent. Despite political expectations of a completely new legal system incorporating elements of customary law and totally disbanding Roman Dutch Law, the Namibian Constitution maintained the law of the territory before independence. The legal transition was not to be revolutionary. Independence Day was just another day in the courts of Namibia. The laws, legal system and the officials of the court, smoothly moved over from one dispensation to the other. The Constitution did not only opt for the Roman Dutch Law and English adversarial procedural law, it also made sure that the judges, the prosecutorial authority and the major decision making body, the Judicial Service Commission, would be in the hands of the pre-independence role players for at least some time.2 It was only on the bench of the lower courts that the government could initially make some moderate steps towards transformation.3 However, the Constitution was meant to change and transform the old non-representative parliamentary democracy to a Constitutional democracy. The new High Court of Namibia was a continuation of the pre-independent Supreme Court of South West Africa/Namibia. The Bench was a mixed group and included Namibian-born Afrikaners like Justice Strydom and acting Justice Muller, and South Africans Judges Levy, Hendler and Bethuen. Shortly before independence Namibian activist advocate cum politician Bryan O’Linn, known for his defence of SWAPO members and guerrilla fighters of the SWAPO military wing, People’s Liberation Army of Namibia (Plan) was appointed to the Bench. The first 1Carpenter, G. 1987. Introduction to South African International Law, Durban: Butterworths, p. 59. 2See Steytler, N. 1991.The Judicialization of Namibian Politics, 9 South African Journal on Human Rights, p. 477. 3After independence, Namibia uncritically took over the South African custom that magistrates were civil servants appointed by and working under the auspices of the Minister of Justice. It was only in Mostert v Minister of Justice NR 2003 11 (SC) when the Supreme Court declared the practice unconstitutional. 6 appointee to the Supreme Court Bench was Justice Berker, the first chief justice of Namibia. The new rulers were not comfortable with the post-independence legal system. The separation of powers and the specific historical make-up of the judiciary and prosecutorial authority, limited their powers. The major liberation movement, SWAPO Party of Namibia (SWAPO) wanted a just dispensation demanding immediate radical changes. SWAPO wanted a judiciary who respect their laws and assist them in creating a new society after a century of colonialism, but had to bear with the colonial system and office bearers for the time being. The Constitution was the instrument to rid Namibia of its unjust past. It is this struggle between constitutional values, constitutional aspirations and practical politics, that I wish to deal with in my analysis of the constitutional jurisprudence of Namibia. Karl Klare differentiates between a formalistic approach to law and transformative constitutionalism.4 Woolman and Davis emphasise the importance of understanding the ideology behind a constitution if the courts want to get to the real meaning of constitutional directives5. Both Klare and Woolman/Davis challenge the general accepted myth of the apartheid era that the making of law is the prerogative of the legislator and the courts only need to interpret and apply these laws at the hand of clear and simple rules. The post-apartheid constitutional democracies in South Africa and Namibia ended the rule-based interpretation of statutes by the old standard textbooks of authors such as Steyn.6 Apart from the typical parliamentary democratic judicial role of interpreting and applying the laws of the legislator (and often the directives of the executive embedded in Proclamations and other executive quasi-legislative declarations), the judiciary in a constitutional democracy also carries the burden to protect the constitutional dispensation against unconstitutional legislation and executive directives.