Saturday 15 May 2021
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Supreme law: Favouring a few or all?

Was the supreme law engineered to favour a few and not the majority?

It was reported in the Namibian of Wednesday 22 March 2017 that Former President Hifikepunye Pohamba revealed that he would not have agreed to certain clauses being inserted into the constitution had he been fully aware of the impacts at the time. “Apparently, our advisers, having seen what was happening in Zimbabwe, advised us (to insert a clause to protect property rights”.
The Former President was also reported to have said that SWAPO has currently no clear-cut ideology, as it was difficult to pinpoint what SWAPO’s central ideology was.
With all due respect, allow me to shed some light on the above-mentioned issues. First of all, I should clarify that Professor Peter Katjavivi, the current Speaker of the National Assembly, observes that the debate on the Bill of Rights and property rights started within SWAPO as early as the 1970s, well before the drafting in 1981 of the Constitutional Principles by the Western Contact Group (WCG), also known as the Eminent Persons Group, consisting of Canada, France, West Germany, the United Kingdom, and the United States (US).
In fact, SWAPO talked about property rights even before the first meeting of the Constituent Assembly on 21 November 1989, when the Former Speaker Theo-Ben Gurirab proposed that the Assembly adopt the 1981 Constitutional Principles by the Western Contact Group (WCG) as a “framework to draw up a Constitution for South West Africa/Namibia”.  His proposal was unanimously adopted by all members of the Constituent Assembly.
As it was amply demonstrated by Professor Nico Horn in his paper titled: “The forerunners of the Namibian Constitution”, the idea of a Bill of Rights – as part of a future Namibian Constitution – did not originate with the WCG. Neither was it alien to the two major political parties involved in the drafting of the Constitution, which were SWAPO and the DTA.

In 1975, the South African government started preparations for a national conference of internal political parties to set the course for an internationally acceptable independence process without negotiating with SWAPO. The initiative provided the blueprint for the Turnhalle Conference, which later led to the formation of the Transitional Government of National Unity. In response to the Turnhalle Conference, SWAPO released a Discussion Paper on the Constitution of an independent Namibia. The document was a draft constitution, and closely resembled the draft that SWAPO eventually took to the Constituent Assembly after the UN-supervised elections in 1989.
In strong reaction to the South African policies, the document opts for a unitary state and rejects any notion of “Bantustans masquerading as federalism”. It also opts for a parliamentary democracy, with regular elections, an Executive President, a one or two chambers Parliament, an impartial public service, an independent judiciary, an entrenched Bill of Rights, and detailed anti-discrimination legislation. While no economic policy was spelled out, the document included a paragraph protecting “vested legal rights and titles in property” and was released in August 1975, shortly before the Turnhalle Conference Assembled in Windhoek.

This shows that SWAPO was at pains to point out that the vested interests of whites would be respected, that expatriate expertise would be welcomed in an independent Namibia – a reference to South Africans in the civil service, the police, the defence force, banks and other private enterprises – and that national reconciliation would be an integral part of a future constitutional dispensation.
Secondly, according to Prof Horn, when South Africa and the pro-South African parties ignored the hand extended for negotiation, SWAPO’s attitude hardened. In August 1976, an enlarged SWAPO Central Committee adopted a Constitution and Political Programme in Zambia.  Whereas the Discussion Paper maintained a neutral or non-aligned stance on foreign relations, the SWAPO Constitution, adopted on 1 August 1976, was critical of the Western governments and their support of the “Turnhalle circus”, while it stands for building a classless, non-exploitative socialist state.

Such Political Programme, which did not include any reference to a Bill of Rights, totally overtook the 1975 Discussion Paper. From 1976 onwards, the Political Programme was seen internationally as a statement of SWAPO’s political ideology.
Professor Horn further states that there were dissenting voices in SWAPO during the liberation struggle opposing such a Bill of Rights is understandable, and should be seen in its historical context. However, as Professor Katjavivi pointed out, SWAPO presented a democratic constitutional plan to the world several years before the WCG came up with the Constitutional Principles.
I am certain that Former President Pohamba remembers this as he may well also remember that in January 1981, the UN sponsored the so-called pre-implementation conference for Security Council Resolution 435. The conference took place in Geneva, where a South African delegation under the leadership of the Administrator-General for South West Africa, Danie Hough, including 30 Namibian leaders from internal parties, met SWAPO President Sam Nujoma and a SWAPO delegation. The conference was aimed at getting the negotiations for Namibia’s independence back on track.

At that stage, South Africa was no longer convinced that an international settlement was possible in Namibia without SWAPO’s participation. The election victory of the Zimbabwe African National Union – Patriotic Front (ZANU-PF) under Robert Mugabe in Zimbabwe in March 1980 was a major shock to the South African government. The fact that their moderate compromise leader, Abel Muzorewa, was politically defeated by ZANU-PF did not strengthen the hopes for a recognised DTA government in Windhoek.
Professor Horn concludes that Modern critics of the Constitution are possibly correct in pointing out that the Constituent Assembly went into the constitutional chambers with their hands tied.
However, as we have seen, the basic tenets of the Constitutional Principles were all part of SWAPO’s Discussion Paper of 1975 and The Hiemstra Constitution, which became the official draft put forward by the DTA at the Constituent Assembly. This Constitution and SWAPO’s draft were so similar that Dirk Mudge proposed the SWAPO draft be used as the working document of the Standing Committee of the Constituent Assembly.
The Hiemstra Constitution came into existence when the so-called Multi-Party Convention (MPC) only accepted the Transitional Government of National Unity (TGNU) on condition that the South African government created a political forum for Namibians to start writing their own Constitution for a future independent Namibia.

On 30 August 1985, the Constitutional Council was created. PW Botha appointed Victor Hiemstra, the former Chief Justice of Bophuthatswana – a South African Bantustan – as the Council’s Chairperson. He was known for his constitutional and human rights judgments in the so-called Republic of Bophuthatswana. The draft Hiemstra Constitution, as had the Supreme Court of SWA before it, rejected the idea of ethnic, second-tier governments or territorially ethnic local governments. It also did not include sections protecting minorities. Consequently, the South African government ignored its own creation.
It is, however, unfortunate that SWAPO’s commitment to democracy, an independent judiciary, national reconciliation and the recognition of property rights was not fully appreciated by the West and, especially, South Africa and its Namibian allies in 1975 just as no one appreciates the efforts put up by the SWAPO government which never approved a ‘land grab’ for Namibia. The government has often referred to the fact that the struggle was about land and, therefore, real reconciliation can only take place if it goes hand in hand with an aggressive land reform programme that will assist the government programme of poverty alleviation. The white farmers, on the other hand, refer to the negotiations of 1989 and the eventual settlement in which South Africa and SWAPO agreed that property will be protected.
Thus, although they seldom refer to the 1982 Principles, the protection of property rights in Article 16 of the Constitution is often quoted. They see the protection of property rights in the Constitution as a settlement agreement between themselves and the new SWAPO government at Independence.

Against this background, it is high time we expropriate farms from absentee landlords. I too think that if a referendum on land is to be held today on whether the supreme law of the land truly speaks for the hopes and aspirations of the majority or it is engineered to favour a few in societies, the outcome is clear. Our constitution was a document of compromises to appease and protect the vested interests of whites.
The Constituent Assembly often opted for a compromise rather than enter into bitter debates between former military opponents and a Namibian settlement was extremely important for the international community, not only to bring peace to a war-stricken country, but also to stabilise the Southern African region. Now is the time for a document that favours the majority and not just a few. It is also time to include in the German Talks, the issue of buying land for the affected communities.

Disclaimer: The opinions expressed here do not necessarily reflect those of my employer and this newspaper but solely reflect my personal views as a citizen.

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