Sunday 18 March 2018
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Reckoning on the rule of law

“At the time of adoption of the constitution, I had compared nation building with the building of a house- the Namibian House. I said that the foundations for the house was the constitution. The building blocks, the different ethnic groups. Mortar to these different bricks was composed of the laws passed by the parliament. Once the house is painted, no one would see the bricks or different ethnicities. All that everyone would see is a strong house in which children of Namibia will be able to live in peace, security and harmony”- His Excellency Dr Hage Geingob, President of the Republic of Namibia

The 9th of February is Constitution Day in Namibia and President Hage Geingob was the Chairman of the Constituent Assembly which adopted the constitution on this day in 1990.
As such, this review engages President Geingob’s Doctoral thesis titled, ‘State Formation in Namibia: Promoting Democracy and Good Governance’. The thesis aimed to examine how Namibia sought to build a reconciled society out of ethnically and racially stratified, diverse and often antagonistic groups. It alleges that the process of reconciliation hinged on the drafting of the constitution by the Constituent Assembly as outlined in Chapter four.
The chapter introduces the constitution as a power limiting tool for governing the interests of the nation and her citizenry. It narrated the roles and vision of various interest groups in Namibia’s independence and the processes involved in the drafting of the constitution. Furthermore, it enunciated on the role and type of the Presidency, Organization of the legislature, the Bill of Rights, The electoral system, and Amendment procedures. The chapter further narrates that political parties represented in the Constituent Assembly submitted drafts of their own constitution, however the SWAPO draft was unanimously adopted on the suggestion of Dirk Mudge, former President of DTA (now PDM).

The President writes that after he was elected to chair the Constituent Assembly, that the first job for him was to promote a spirit of consultation, mutual respect and reconciliation. “In my opening remarks, I emphasized that the people of Namibia have given us a mandate to hammer out and adopt in a spirit of compromise, a spirit of give and take, a constitution that will launch our country and people into nationhood. This is a trust we dare not betray”.
The chapter concluded in the words of President Geingob stating that “On the morning of 9 February 1990 in front of the current parliament building, I declared, “we therefore adopt this constitution by consensus. Any objection? No objection,” and the Constitution was adopted unanimously”.
It has been 28 years since the adoption of the Namibian Constitution and the constitution has undergone three major amendments. The first amendment was to enable the Founding Father and former President Sam Nujoma to serve a third term in office and the second amendment was to make the Anti-Corruption Commission a Constitutional Body whilst the third and most controversial amendment was the provision for the appointing of a Vice President and increasing seats in both houses of Parliament amongst others.
In his thesis, President Geingob discussed provisions for the first amendment even before it occurred by writing that “in the spirit of give and take, SWAPO agreed to the provision of a two-term presidency, but remained unconvinced by the reasoning given to justify it. SWAPO members felt that limiting the terms was unnecessary and undesirable. First, dictating that a person cannot contest elections for the third term, and dictating that the citizens cannot vote for that person was tantamount to abridging the person’s and voters’ natural rights. Many of them also felt that elections themselves provided term limits. If citizens did not wish a person to continue in office, they could vote him/her out. Further, limiting terms denied the country access to an experienced office holder”. This prophetically manifested itself with the first amendment of the Constitution, allowing the Founding Father to lead the country for three terms.
Regarding the third amendment which resulted in a controversial increase of both Houses of Parliament, the President wrote that “one thing is sure, if attempts are made by influential persons to undermine the Constitution, backed by the ruling party having a two third majority in the National Assembly, the Constitution can be wrecked. So, at present, the integrity of the Constitution depends on SWAPO’s commitment to it. Survival of the Constitution and its effectiveness would depend not just on individuals internalising the Constitution but also on the evolution of society and social groups, and, in turn, civil society, that is ready to defend the Constitution”.
However, despite civil society rigorously campaigning against the third Constitutional amendment, they were enacted. The chapter continued to motivate the nature of amendments by stating that “Constitutions should strike the right balance between rigidity and flexibility. It should neither be easy nor impossible to change them. Although the Constitution is not explicit on the number of cabinet members, it mentions functions of a finance minister, a defence minister and a foreign minister. Therefore, the size of the cabinet depends on the President, and, in the carrying out of this function, he consults with the prime minister as the primary constitutional assistant and advisor to him/her”. This was also demonstrated by the third amendments which were championed by President Geingob.

The review as well features input from Political analyst Henning Melber and Toni Hancox, Director of the Legal Assistance Centre of Namibia (LAC). Below are their reckonings on 28 years of the Namibian Constitution:

 The Patriot: Describe the Namibian Constitution at first glance.
Hancox: A binding contract that protects all within Namibia

The Patriot: The President describes the Constitution as a power limiting tool in his thesis, has it lived up to this description since its adoption?
Hancox: I would say depending on the context it can be a very powerful tool, i.e for the people of Namibia. It is power limiting when it comes to the actions that government can undertake and this has been supported by the judicial pronouncements on the powers of government.
Melber: The Constitution has a Chapter 3 on “Fundamental Human Rights and Freedoms” (Articles 5 to 25) protected against change. This means that the principles enshrined thereunder cannot be abolished or modified. In that sense they limit the power of the executive, which otherwise can change the Constitution by a two-third majority in parliament, which has happened twice so far. Changes then did expand the powers of the presidency by replacing earlier limitations (such as the appointment of regional governors by the president instead of being elected any longer by the regional councils). While some power limiting elements in chapter 3 remain untouched (such as expropriation only with adequate compensation, which is relevant for example with regard to land redistribution), some others elsewhere have been abandoned or weakened, giving the President more powers than before.

The Patriot: What are the areas of government (power)that need to be constitutionally limited in your opinion?
Hancox: There can surely be no free reign for any area of government. Just like it is with inter-personal relationships, so it is with the relationship between the state and those within it. A balance must always be apparent between the rights of the two.
Melber: The term limits of a president should remain an essential principle. It was modified once to allow the first head of state a third term in office. The exception was made because he was not elected by direct popular vote for the first term but by the Constitutional Assembly. This should remain a singular exemption and the two-term limitations should remain untouched.

The Patriot: Do you think that most chapters in the Constitution (in its current format) is relevant to an adult Namibia?
Hancox: Specifically, in respect of the Bill of Rights, I would say that most definitely it is relevant, and we could even add a few more rights in my opinion. In respect of the other chapters, I believe the current format can still serve Namibia well.
Melber: Yes, the civil liberties enshrined in the constitution are very relevant and serve the protection of individual freedoms. They could be further strengthened, among others by amendments including the recognition of sexual choices and identities, thereby respecting and promoting rights of the LGBTI communities.
Namibia was the first African country to draft its own constitution despite being amongst the last few nations to become independent. The Namibian Constitution at adoption was lauded internationally for its constitutional principles and declaration of fundamental rights and freedoms denied to Namibians consequent to colonialism and apartheid.  Happy Constitution Day Namibia!

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