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Namibia


the Constitution of Namibia

Namibia

After a century of colonialism, Namibia attained independence on 21 March 1990. With independence came Namibia's first ever constitution which was widely regarded as one of the worlds most democtratic consititutions. For those interested in such things here is a brief overview of the constitution.

The ‘1982 Constitutional Principles' were contained in Security Council document S/15287, and were the product of negotiations between the Western Five Contact Group and all parties involved in the dispute over Namibian Independence. These were a major element in the effort to allay suspicions that the party that won the election for a constituent assembly would force its own draft on everyone else. The agreement included these key points:

  • The constitution would be adopted by a minimum of two-thirds of members of the assembly;
  • It would include a Bill of Rights, safeguarding the interests of individuals and minorities;
  • There would be a constitutional court to protect against infringements of the Bill of Rights;
  • There would be no nationalisation or expropriation of property or assets without adequate compensation;
  • The judiciary would be independent;
  • The political system would be democratic, with regular elections.

After an intense period of electioneering the election for a Constituent Assembly was held in November 1988. SWAPO won it decisively but did not achieve a two-thirds majority, which encouraged a conciliatory and collaborative spirit in the assembly. This was further advanced by the fact that, led by SWAPO, all parties agreed to fully observe the provisions of the ‘1982 Constitutional Principles'. The constitution was finalised in early February 1990 and on 21st March the assembly transformed itself into the first parliament of independent Namibia, with Sam Nujoma as the first president.

Amongst other clauses, the preamble to the constitution proclaims that human rights for all are necessary for freedom, justice, and peace, and that these rights are best protected in a democratic society. It also refers to the long struggle ‘against colonialism, racism, and apartheid', affirms the need for national reconciliation, and acknowledges the desire to foster ‘peace, unity, and a common loyalty to a single state.'

In Article 1 of the constitution, the boundaries of Namibia are defined. Interestingly, they specifically mention Walvis Bay and state that the southern boundary ‘shall extend to the middle of the Orange River'. At that time, South Africa still occupied and controlled Walvis Bay - it was only handed over to Namibia in 1994 - and Namibia's southern boundary was on the north bank of the Orange River, according to an agreement that dated back to the German colonial period.

In Article 2, English is proclaimed as the official language, although it is specifically mentioned that any language may be used as a medium of instruction in any school. This was a radical departure, as Afrikaans had been the main official language and medium of instruction throughout the period of South African control.

Chapter 3, containing Articles 5 to 25, contains an exposition of ‘Fundamental Rights and Freedoms.' For a country in which most people had suffered deprivations, indignities, restrictions, and impoverishment under apartheid and colonialism, it was a decisive indication of the new dispensation that these rights were not only enshrined in the constitution but were so firmly ensconced that they could not be abolished or abridged by any law or action. This chapter, which enshrines the rights and freedoms that are commonly understood as human and civil rights, also includes a separate article on ‘Apartheid and Affirmative Action', by which it is made legal to advance laws and provisions that are aimed at rectifying the disadvantages that were suffered those whom were disadvantaged in the past. It makes provision for particular attention to be given to improving the position of women.

Chapter 4 defines the position and powers of the President. He/she may only serve two terms of five years each and is the chief executive of the state. In a departure from common practice, the constitution also makes provision for a Prime Minister (article 36), who ‘shall be the leader of the Government business in Parliament, shall coordinate the work of the Cabinet and shall advise and assist the President in the execution of the functions of government'. The National Assembly, the chief legislative body of the country, has 72 members who are elected by proportional representation in elections that are held every five years.

Chapter 10 makes provision for there to be an Ombudsman, who will be ‘independent and subject only to this Constitution and the law'. The ombudsman is given wide-ranging powers to investigate complaints ‘concerning alleged or apparent instances of violations of fundamental rights and freedoms, abuse of power, unfair, harsh, insensitive or discourteous treatment of an inhabitant of Namibia by an official in the employ of any organ of Government … (etc)'. The ombudsman may also investigate allegations of abuse of the environment, complaints about malpractices within the civil service, and allegations against any person or body concerning violations of fundamental rights and freedoms. In addition, he/she can ‘take appropriate action to call for the remedying, correction and reversal' of malpractices or violations.

History of Namibia

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