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Wednesday 16 January 2019
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Changing the Constitution for political gain

Screen Shot 2017-02-10 at 12.19.38 PM…as Namibia’s Constitution comes of age
 
Although yesterday was Constitution Day, there was hardly any activity to commemorate the day that would in the past ordinarily draw much attention.
Since its adoption in 1989, the Constitution has been amended three times. The first amendment was made on 24 December 1998, followed by another amendment on 2 May 2010 and another in 2014
The Patriot caught up with some of the 72 members, who formed part of the Constituent Assembly that gave birth to the Namibian Constitution.
Those who spoke to this publication were confident that the Constitution is still relevant in modern Namibia while others warned that Constitutional amendments should not be made for political gain. Others want it to be amended to cater extensively when it comes to the land issue while some want the Article dealing with citizenship matters to also be fine-tuned.
First up was former Prime Minister Nahas Angula, who believes the Constitution is still “very” relevant in modern-day Namibia.
“The Constitution is very relevant to modern-day Namibia, as it was at Independence and I don’t see any problem with it,” said Angula.
When asked what he thought about the number of times the Constitution has been amended, Angula said the document should be seen as the fundamental law of the country.
“We should consider the Constitution as the fundamental law that will not be changed within a blink of an eye and if it must be amended it must be for a very good reason,” Angula said.
In addition, Angula said the Constitution served as a “guideline” on how to make laws in a country and can be amended if the situation so requires.
“The Constitution provides guidance on how to make laws, so if you want to strengthen it, then make a law that is within its framework. You can make any law (amendment) as long as it is in accord with the Constitution,” said Angula.
Another architect of the country’s supreme law was former Member of Parliament (MP) Benjamin Ulenga, who also echoed Angula’s sentiments in terms of the relevance of the Constitution.
“It was not implemented for that time being, it was put in place to be there forever thus it can be amended but you can never do away with it,” said Ulenga.
Ulenga said the Constitution, with other factors, has played a crucial role in the integration of the Namibian society.
“We are intact but I don’t think it is solely because of the Constitution but it can be because of other factors,” Ulenga pointed out.
On the front of constitutional amendments, Ulenga declined to express his opinion saying it would “unconstitutional” to speak against already amended laws.
“What is done is done and is therefore part of the law, I am a law-abiding citizen and the law is the Constitution,” said Ulenga.
Furthermore, The Patriot also caught up with Advocate Vekuii Rukoro who said the Namibian Constitution continues to be relevant today.
“It (Constitution) continues to be very relevant to the modern-day and future Namibia because it sets out various important principles and values. These values are expressed in afflation upon which the Namibian society should be governed as a democracy, free nation, just society wHere people are treated equally and enjoy freedom,” said Rukoro.
Rukoro further heaped praise on the Namibian judiciary system for its independent and robust approach in upholding the Constitution.
“Thanks also for the robust manner in which our judiciary, especially the High Court and the Supreme Court, interpret and uphold the laws of the land,” he said.
Similarly, Rukoro said one of the things that the Constitution has succeeded at is seen when one looks at the Namibian judiciary system.
“People can have access to a free and fair judiciary should they feel that any of their constitutionally guaranteed rights have been trampled upon,” added Rukoro.
According to Rukoro, the judiciary has been consistent even in important cases that involved the “executive” branch of the state. The freedom that Namibians enjoy is seen in the vibrant “free press” that media are entitled to despite there being censorship in government-owned media houses, according to Rukoro.
“We are enjoying freedom of speech, which is very vibrant although there is a lot of censorship from the part of the NBC. We understand that somebody higher up in the system is whispering in the ears of the editors,” alleged Rukoro.
On constitutional amendments, Rukoro said the Constitution is a “dynamic and flexible” document, which is bound to change as time goes by.
However Rukoro warned against Namibian leaders using these amendments to drive their own political agenda.
“From time to time, changes will be called for but the majority party must not bulldoze the changes using the majority vote. They must convincingly and transparently debate the necessity of the changes, which must not be for short-term political gain but in the nation’s interest,” warned Rukoro.
In terms of amendments to the Namibian Constitution, Rukoro said there was a need to debate the need of a two-chamber parliament in order to enhance quality law-making.
“That (two-chamber parliament) needs to be debated nationwide and only after that can one consider whether or not to amend the Constitution,” concluded Rukoro.
Echoing the words of Angula and Rukoro, former deputy Prime Minister Libertina Amathila described the Constitution as still “very” relevant up to this day.
“The Constitution is still very, very relevant today, they (constitutions) don’t change overnight because we (Constituent Assembly) gave it a very long thought. Our Constitution is actually one of the best in the world so we must keep it,” exclaimed Amathila.
In addition, Amathila believes that the Constitution has played an important role in keeping the Namibian society intact.
“We are one of the most peaceful African countries and we have maintained our democracy and it is because of the Constitution that is directing us,” said Amathila.
Amathila further described the constitutional amendments as “not so deep” to be a concern.
“One should not rush in amending the constitution because the world is evolving and times are changing,” noted Amathila.
Another member of the then Constituent Assembly, Professor Mburumba Kerina, said a Constitution can never become irrelevant even in a century.
“A Constitution, like the Namibia one, can never become irrelevant even for the next 100 years,” said Kerina.
Kerina said constitutions that become “irrelevant” are the ones that come into existence as a result of military take-overs.
“So far Namibia has been stable and has also established a principle of succession peacefully and it’s because of our Constitution.”
According to the veteran politician, if Namibians abide by the Constitution then the country will remain stable and secure for a long time.
Kerina said it was not the Constitution’s duty to maintain peace and security in the country but that it is every citizen’s task.
“It is not the Constitution that must that must keep us safe together, we must ourselves make an effort to fulfil what has been written in it,” said Kerina.
Furthermore Kerina added that the Constitution was just a tool that helps citizens to remain a “solidified”, peaceful and united nation.
Consequently, every Namibian has a responsibility to promote what was written in the Constitution, according to Kerina.
Kerina said that the amendments that were made so far to the Namibian Constitution were done in the spirit of “strengthening” it.
Lastly, Kerina pointed out that all constitutions are bound to change as time goes by.
“Every constitution on this globe is subject to change that’s why the constitution itself has provision for amendments. As times change, the conditions that we are living in change so the constitution needs to change for it to remain relevant to the generation that we are living in,” concluded Kerina.
Allois Gende was also a member of that historic assembly and in his view, the supreme law of the country continues to be relevant.
Gende attributed peace and stability that Namibians continues to enjoy as an indication that the Constitution was still of great importance 26 years after independence.
“A Constitution is a guideline and is still relevant but it depends on how you want to implement it,” said Gende.
In addition, the fact that Namibia is not at war suggests that the Constitution has kept the country intact in terms of integration, politics and ethnic relations, said Gende.
With reference to the first amendment of the Namibian Constitution, which made former President Sam Nujoma eligible for a third term in office, Gende said it was uncalled for.
“The amendment was to accommodate Sam Nujoma, and where is Sam Nujoma today? Is it not going to open up the Pandora’s Box?” he questioned.
“We fought against such an amendment of one individual, but luckily Namibians are very peaceful people,” said Gende.
When queried over the changes, if any, he would like to see in the current Constitution, Gende said the issue of land is a burning one that should be addressed through the supreme law of the country (Constitution).
“The issue of land (if not addressed properly) is going to cause us harm in Namibia. If we do not address it well, it might jeopardise peace and stability,” warned Gende.
According to Gende, if the land issue continues to be treated with baby gloves, it will escalate into a “war”.
“The issue (land) in the south that is being addressed by [Clinton] Swartbooi is fine but it could be dangerous because the moment you organise groups, people will understand it wrongly,” hinted Gende.
Another member, who formed part of the Assembly, Anton von Wietersheim said the Constitution forms the “basis and framework” upon which society is built.
“It is definitely important as it forms the basis within which a society and citizens are living within, which other legislations have to make sure that the current affairs and challenges are overcome,” he said.
Seemingly, agreeing with Rukoro and Gende on the front of constitutional amendments, he was quick to point out that some of the amendments (first and third) were uncalled for and not in the public’s interest.
The latest constitutional amendments date back to 2014 when a Bill was tabled in Parliament, which called for an increase in parliamentary seats from 72 to 104; creation of a vice presidency and the introduction of an electoral court, among others.
“My personal opinion is that the last amendment was wrong and unnecessary and has not contributed to the general advancement of the general public,” he lamented.
Similarly, during a one-on-one interview with The Patriot Minister of Home Affairs and Immigration Pendukeni Iivula-Ithana, who was also a member of the Assembly, described the Constitution as the “foundation” of the existence of the Namibian nation.
“Our constitution is the foundation of our existence as country and as a nation and as a fundamental law it has defined what Namibia is. It (Constitution) stipulates who should be a Namibian and the institutions that should help us as a nation are all in the Constitution,” said Iivula-Ithana.
On the question of relevance of the Constitution, the veteran minister referred to the Constitution as “a living” document that has no expiry date.
Iivula-Ithana said unlike humans, who have a specific lifespan, the Constitution will go for many generations, hence, it can never become “irrelevant”.
“This Constitution will never expire; it is a living document because we are living with it, it is our foundation,” noted Iivula-Ithana.
In the same vein, Iivula-Ithana pointed out the significant role played by the Constitution in unifying Namibians.
Before independence, Namibians were divided according to their respective ethnic groups, but since the implementation of the Constitution there has been a sense of “oneness”, according to Iivula-Ithana.
“The Constitution made us (Namibians) see ourselves as one nation and the nation is now reinforcing that by the slogan ‘one Namibia one nation’,” added the immigration minister.
Meanwhile, Iivula-Ithana said all amendments are justifiable because certain aspects of the Constitution did not “anticipate” situations that would warrant amendments thereof.
According to Iivula-Ithana, “the founding fathers and mothers of the Constitution did not anticipate certain situations to arise.
“But now that those situations have arisen there was a need for the Constitution to amended,” added Iivula-Ithana.
When asked whether she was wholly satisfied with the current Namibian Constitution, Iivula-Ithana’s response was: “In defining who is a Namibian (citizen), we find that the Constitution has given a wide interpretation on citizenship under Article 4, it is too wide,” said Iivula-Ithana.
According to Iivula-Ithana there a certain terminology’s that make Article very wide for interpretation, which makes it difficult for her ministry to do “justice” to those who are supposed to be defined as citizens.
Additionally, former Kunene regional governor, Joshua //Hoebeb, said the question of relevance or irrelevance of the Constitution depends on how one views the “political” landscape.
“The Constitution must be tested and I don’t [think] the test period for any constitution is 25 years, it cannot be,” said the //Hoebeb.
//Hoebeb said that if there is a certain section of society that thinks the constitution is not relevant, it should substantiate its opinion.
On amendments, //Hoebeb again, like Gende and Rukoro criticised the 2014 constitutional changes saying it has added “a financial burden” to the Namibian government.
“This increase is a serious financial burden on the fiscal position of Namibia, the increase from 72 to 104 was a radical increment. And anything that is radical and not gradual causes pain (financial pain),” said //Hoebeb.
Finally, there is a general feeling of dissatisfaction among the communities that lost land to German and South African imperialist forces and want to claim it back. However, the Namibian Constitution does not give way for such a claim.
To this, //Hoebeb acknowledged the seriousness of the land issue but said those claiming “ancestral land” should clearly state its boundaries.
According to //Hoebeb, claiming ancestral land was similar to inviting “Bantustans”, which Namibia fought against.
“When we talk about the land question, I think we have a hangover of the Bantustans and Homelands idea,” //Hoebeb.



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