Tuesday 13 April 2021
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Constitutional Democracy

In an earlier post I explained the Rule of Law as being part of constitutional democracies such as South Africa and Namibia.
Feel free to imagine that these countries are democracies that have a constitution.  Correct.
They are democracies because they are ruled by governments that exist and act in accordance with the will of the people, i.e., government “by the people for the people”. Political scientist Larry Diamond, defines a democracy as having four key elements: –
a)  A political system for choosing and replacing the government through free and fair elections;

b)  The active participation of the people, as citizens, in politics and civic life;

c)  Protection of the human rights of all citizens, and

d)  A rule of law, in which the laws and procedures apply equally to all citizens.
We see these elements in these countries. However, we need to understand exactly why the government, especially the President, cannot just do as they like, but are constrained to execute the will of the people whilst always upholding the rule of law.  Firstly, it is the case that there is a Constitution. The Constitution of Namibia was adopted on February 9, 1990, a month prior to Namibia’s independence from apartheid South Africa. It was written by an elected constituent assembly. The Constitution sets out how the State is structured and human rights that are to be protected. The Namibian Constitution has a Chapter in which it sets out “FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS”. Mostly these have been adopted from the Universal Declaration of Human Rights (“UDHR”) as I have previously explained. They include the right to life, liberty, dignity, fair trial, freedom of speech and association … etc. that are set out as sacred Articles in harmony with the UDHR. So we are reminded how critically important the UDHR is and feel bemused that the World would not have adopted it, when it did in 1948, had it not been for that despotic demonical tyrant Hitler going too far with the previous universal culture of “might is right” and “invade, conquer and subjugate … even enslave”. We really should understand that it was the adoption of the UDHR that guaranteed the end of colonialism. So it is perverse irony that we appear to also have Hitler to thank for having secured our freedoms when we did, not just our valiant “freedom struggles”.
Critically important is the concept of “The Separation of Powers”. Under the Constitution the principle organs of State are: – i) Parliament; ii) the Executive and iii) the Judiciary.

i)    Parliament comprises members who have been elected by the people and it passes laws and decides what needs to be done to advance the interests of the people.

ii)    The Executive comprises Cabinet members, headed by the President, as appointed/elected by Parliament and is required to “execute” the will of Parliament to which it is accountable.

iii)    The Judiciary, comprising the Courts and Judges, is there to rule whether or not any act or omission is in compliance with the Constitution, no more, no less.

So in terms of the Rule of Law any human being is able to challenge any act or omission, committed even by the President. In terms of the Separation of Powers the challenge is made before the Judiciary.  The Judiciary tests an act or omission for compliance with the Constitution. If it does not, the act or omission is struck down, i.e., ruled unlawful and a correction ordered.   It is important to understand that this does not mean that the Judiciary is superior to the Executive or Parliament. It was very regrettable that, in South Africa, we had senior ANC members lamenting the actions of the Judiciary and contending that Judges could not overrule the Executive as the Executive were giving effect to the will of the people. We also witnessed the Speaker rule that the Constitution was only an “advisory document” that the Executive and Parliament could choose to follow. She was wrong. The Constitution is 100% binding.
It is not that the Judiciary is superior. It is that the Constitution is “superior” and binds everybody; at all times; on all issues.  The Executive, Parliament, Chiefs, leaders … everybody … have no option but to act in accordance with the Constitution at all times.
All that the Judiciary does is to compare any act or omission, that is complained of, to the provisions of the Constitution to test for compliance, no more, no less. If there is a breach the act or omission is struck down and redress ordered.
In doing so the Judiciary does not act with an unfettered discretion. The Judges act ONLY as provided for by the Constitution.  What binds a Judge is a sacred oath of office in terms of which he/she swears to uphold the Constitution and laws under it “without fear, favor or prejudice”.
So feel free to see all of us as players on the field of State, with the Executive and Parliament being the most important players … and the Judiciary as the referee to ensure that we all comply with the rules of the game of life as set out in the Constitution.
We will explore very interesting examples next time.


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