In an earlier post I explained how the whole world experienced a paradigm shift when it signed off on the Universal Declaration of Human Rights (“UDHR”) in 1948, after 2 world wars and the Holocaust. Simply put the world went from a culture of “might is right” and “invade, conquer and subjugate … including slavery” to a human rights culture for the first time.
At the center of this human rights culture is the proposition that all humans are equal under the law. Prior to 1948 it was the reality that humans that had been conquered and subjugated were never treated as equal. So neither Cecil John Rhodes nor Genghis Khan nor King Shaka Zulu treated the humans they had conquered as equal … and that is how it had always been.
This proposition that “all are equal” is both fundamental and resolutive. Its implications include: –
a) the law confers equal rights on every human, being whatever their race, ethnicity, tribe …
b) and conversely no person can be disadvantaged on account of such differences …
c) laws much be such as to enable humans the right and power to enforce their rights and seek redress for infringement of such rights …
d) by full seamless access to Courts and tribunals that are truly independent and empowered to enforce human rights and force redress
e) with even the lowliest of subjects able to challenge even the President of the country as an equal on any issue
f) and the judgements and orders of the independent Courts fully enforceable.
All of the above accrues in terms of a “Bill of Rights” that is included in the Constitution of constitutional democracies, such as Namibia and South Africa, and the Bill of Rights is the offspring of the 1948 UDHR. Note, in particular, that most of these rights are now regarded, under international law, as “unalienable”, meaning that no government can change them despite being a “sovereign” government. So when the Zimbabwean government tried to take away the right of farmers to be compensated for land that was grabbed the SADC Tribunal, sitting in Windhoek, ruled that the land grabs without compensation was a breach of an unalienable right and gave judgement in favour of the farmers.
It is also the case that legitimately elected leaders of a country can and do find themselves being tried before the International Criminal Court for breaching fundamental “unalienable” rights of human beings and their pleas that they have “sovereignty” is of no avail. The Lubanga and Katanga-Chui trials in the situation of the DR Congo are an example. Mr Lubanga and Mr Katanga were convicted and sentenced to 14 and 12 years imprisonment, respectively, whereas a Mr Chui was acquitted. Charles G. Taylor, the former president of Liberia and a once-powerful warlord, was sentenced at The Hague to 50 years in prison for his role in atrocities committed in Sierra Leone during its civil war in the 1990s.
It was for this reason that the Constitutional Court of South Africa condemned the SA government for having allowed Omar Al-Bashir to escape arrest in SA that SA was obliged to effect in terms of a law that it had passed committing the country to respect what is set out above. What the SA government did, in simple terms, was to treat Omar Al-Bashir as being above the law. Feel free to be reminded of what George Orwell set out in his iconic book “Animal Farm” that you cannot have a situation were “all are equal, but some are more equal than others”.
From all of the above it seems to me that a moral obligation accrues to the whole of the legal profession to ensure that the Rule of Law is entrenched so as to be of seamless benefit to ALL humans. This obligation accrues and is sacred, in my respectful view, on account of the fact that every legal practitioner swears to uphold the Constitution and the laws of the country. I am not persuaded that it is then open for our brothers and sisters-in-law to simply look the other way and turn a blind eye to the fact that so many of our people are denied fundamental human rights simply on account of their lowly socio-economic status. With respect, conniving and colluding at this state of affairs is a perverse somewhat hypocritical breach of the very oath we have taken on admission as lawyers.
In Rhodesia the late Dennis Robinson, as head of the law faculty, set up a legal aid clinic in which just about all legal practitioners participated to ensure that those who could not afford it were guaranteed first class legal representation to enforce their rights under the Rule of Law. We achieved many spectacular successes at this clinic.
So I am appealing to and urging the good people of Namibia to get onto my brothers and sister-in-law and pressurize them to bring even more justice and honour to this wonderful country by adopting Robinson’s model.
I am prepared to help.