Download 2.3. Institutions dealing with the state of emergency in Namibia.

UNIVERSITY OF NAMIBIA
TITLE:
HUMAN RIGHTS DURING STATE OF EMERGENCY: ARTICLE 26
NAMIBIAN CONSTITUTION
A DISSERTATION SUBMITTED IN PARTIAL FUFILMENT
OF THE REQUIREMENT FOR THE BACHELOR OF
LAWS DEGREE (LLB)
OF
THE UNIVERSITY OF NAMIBIA: YEAR 2006
BY
…… ………….………
J.N.MWANDINGI
20013513
SUPERVISOR:
SUBMISSION DATE:
Copyright: University of Namibia, 2006.
…………………………………….
MR. F. NGHIISHILILWA
27 OCTOBER 2006
i
DECLARATION
I, the undersigned hereby declare that the work contained in this dissertation for the purpose of
obtaining my degree of Bachelor of Laws (LLB) is my own original work and that I have not any
other sources than those listed in the bibliography and quoted in the reference.
Signature:
…………………………
(J.N. Mwandingi)
200013513
Date:
25 August 2006.
Supervisor Declaration Certificate:
1. …………………….the undersigned hereby certify that the research and writing of this
dissertation was carried out under my supervision.
Signature:……………………
Date:…………………………
ii
ACKNOWLEDGEMENT AND THANKS
First and foremost, I thank and praise God the Almighty for giving me knowledge, health,
patience to think, write and produce this work. Similarly I want to thank most sincerely my
supervisor Mr. F. Nghiishililwa for his patience, generosity, encouraging disposition and wise
supervision that made it possible for me to complete this dissertation.
I also wish to express my profound gratitude to my parents, Tate Erastus and Meme Ndeikongela
Mwandingi who not only afforded me the opportunity to be educated, but also to ensure that I just
have to be as I am today.
In the same vein, I would like to thank all those who helped me during my course of study, especially
Mr. P. Shivute, PS Ministry of Defence for his financial support to make this
Gen M. K.
study a reality, Brig
Pinehas, the Namibian Air Force Commander, my Commander and Air Force Staff in
rendering their unwavering support during this hard time, Dr M. Munalula my
dissertation lecturer
and my classmate Prince Dunia Zongwe.
God Bless you all.
Finally, I wish to thank my dearest wife, Claudia Fikifeipo, for all her love, encouragement and
assistance, especially in the long dark times, which I had to make my way through.
iii
DEDICATION
This work is dedicated to my beloved wife, Claudia Fikifeipo, our children Ndeutala, Peingelao,
Kaendangongo, Ndilenga, my namesake Ndeulikufa and Kombadayedu, for bearing my absence from
home, especially during the “trying time when”… I went through a major heart operation in January
2003, in the Republic of South Africa.
iv
ABSTRACT
HUMAN RIGHTS DURING STATE OF EMERGENCY: ARTICLE 26 NAMIBIAN
CONSTITUTION
The adoption of the Namibian Constitution on the 19 February 1990 presented Namibia with some
major challenges. The need for firm understanding of human rights and how they are acquired and
protected was one. The other challenge on the other hand was how to use necessary and reasonable state
power to protect the life of the nation, safety and how to balance constitutional order and human rights
during the state of emergency. Therefore, the aim of this dissertation is to investigate whether the
government or Parliament of Namibia needs to enact a state of emergency Act, as it is the case in South
Africa.
The first chapter will deal with the introduction, Namibia’s historical background as from 1884 to 1990,
and the statement of the problem, the research question and research methodology.
Chapter two looks into Article 26 of the Namibian Constitution, other relevant distinctive institutions
and the question whether Namibia needs to enact a state of emergency Act, or not. The third chapter will
look into the interpretation of the Namibian Constitution, entrenchment of constitutional rights and
amendment. The fourth chapter will investigate the limitations upon fundamental human rights and
freedoms during the state of emergency, the impact of the state of emergency on freedoms, security of
arrested persons, detention and their rights to fair trial. Chapter five will deals with the question whether
Namibia must be guided by international law in adjudicating upon state of emergency and finally
chapter six draws the conclusion and makes recommendation.
v
TABLE OF STATUTES
The bellow statutes/legislation were referred to in this task
Namibia
1. The Development of Self-Government for the South West A the Native Nations in South West Africa
2.
3.
4.
5.
6.
Act, 54 of 1968.
The South West Africa Constitutional Council Act,8 of 1985.
The South African Defence Act, 44of 1957 (as amended 1990).
The Namibian Defence Act, 1of 2002.
The Namibian Police Act, 19 of 1990.
The Namibian Constitution: Act 1 of 1990.
South Africa
1. The Criminal Procedure Act, 51 of 1977.
2. The Emergency Act, 68 of 1997.
3. The 1996 Final Constitution: Act 108 of 1996.
4. The 1993 Constitution: Act 200 of 1993.
5. The Unlawful Organization Act, 34 of 1960.
6. Arrests under Suppression of Communism Act, 44 of 1960.
7. Public Safety Act, 3 of 1953.
Zambia
1. The Constitution of Zambia.
Zimbabwe
1. The Constitution of Zimbabwe.
vi
PROCLAMATIONS
Namibia
1.
Proclamation No.6 of 3 March 1992.
2.
Declaration of State of Emergency: Caprivi No.23 of 1999.
3. Emergency Regulations Applicable to the Caprivi Region: Article 26 of the
Namibian Constitution, No. 24 of 1999.
4. Appointment of the Member of the Advisory Board, No. 25 of 1999.
5. The Constituent Assembly Proclamation, 1989 (AG 62/1989).
6. Registration of Political Organization Proclamation, 1989 (AG49 of 1989 as amended
by
AG 59 of 1989).
7. Registration of Voters’ Proclamation, 1989 (AG 19 of 1989).
International Instruments
1. African Charters on Human Rights and People’s Rights.
2. The European Convention on Human Rights.
3. The International Covenant on Civil and Political Rights & Optional Protocol.
International Reports
1. Admissibility of Hearings of Petitions by the Committee of South West Africa,
1956 ICJ Reports 23.
2. Annual Survey of South African Law: 1960, 40-45.
3. International Status of South West Africa 1950 ICJ Reports 128.
4. Keesing’s Reports on World Events (hereafters Keessing’s) 1988:
Vol. 34. Pp360, 778;
5. Keesing’s 1988, Vol. 36, 38.
6. South West Africa/ Namibia Dispute (1973).
7. The South West Africa Cases (Ethiopia v South Africa,
Liberia v South Africa) Preliminary Objections, 1962 ICJ Reports 319.
1. South West Africa Case (Ethiopia v South Africa, Liberia v South Africa)
Second Phase, 1966 ICJ Reports 6.
2. Namibia Case 1971 I CJ Reports 16.
10. 6 Cornell International Law Journal (1971) 1
vii
RESOLUTIONS
1. Security Council Resolution 435 of 1975.
2. General Assembly Resolution 3111 (xxiii) 1973.
3. General Assembly Resolution 3 031 (xxii) 1972; 3. General Assembly Resolution 2372
(xxii) 1970
4. General Assembly Resolution 2145 (xxi) 1966.
viii
TABLE OF CASES
Namibia.
The following cases were referred to in this research.
The only cases with
be influential.
binding authority are Namibian cases, cases of other jurisdictions may
1. Albert Sibiya v Minister of Home Affairs, Martin Mutumba v Minister of Home Affairs
and
Chrispin Mazila 2000 NR 224 (HC)
2. Cultura 2000 v Government of Republic of Namibia 1993 (2) SA (Nm) 2834. Chairperson of
3. Immigration Selection Board v Erna Elizabeth Frank and Elizabeth Khaxas, 2001 (NR)
4.Ex parte Attorney General Namibia: In re: Corporal Punishment by Organs of State 1991
NR 178 (SC): 1991
5. Government of the Republic of Namibia v Cultura 2000 1994 (1) SA 407 to 408
6. Interim Government of South West Africa v Katofa 1987 (1) SA 695 (A)
7. Kauesa v The Minister of Home Affairs (Case No. A 125/1994 unreported pp67, 106-7) 89.
8. Minister of Defence, Namibia v Mwandingi 1992 (2) SA 355 (NmS) 359, 560.
9. Namundjepo and Others v Commanding Officer, Windhoek Prison and Anothers, 2000
(6) BCLR, 671 (NmS) 678S v Acheson 1991 (2) SA 805 (Nm) 183
10. S v Mule en Ander 1990 (1) SA (SACR) 517 (SWA)
11. S v Mbahapa 1991 (4) NR 274 (HC)
12. S v Tcoeib 1996 (1) SA (NmS) ( to be reported in 1999Namibia Law Report)
13. S v Van Wyk 1992 SACR 147 (NmS)
14. Inquest: A. T. E. A. Lobowski: (Inquest 1/94 High Court of Namibia.) 14-20, at 15 –16
Australia
1. James v Commonwealth of Australia [1936] A (578, 614)
ix
European Convention on Human Rights
1. Tyrer v United Kingdom [1978] Ser. A, No. 26 (European Convention on Human Rights
Canada
1.
Hunter v Southam Inc. 11 DLR (4th) 641 (Canada)
South Africa
1. Matiso v Commanding Officer Port Elizabeth Prison, 1994 (4
SA 592 (SE) 597 G-H
2. Rossouw v Sachs 1964 (2) SA 545 (A)
3. Tshabalala and Others v Attorney General Transvaal and Others 1996 (1) SA (A)
4. S v Makwanyane 1995(3) SA 369 (CC)
United States of America
1. Trop v Dulles (1958) 356 US 86 (USA)
New Zealand
1. Marline Steel Ltd. v Government of Marshal Island [1981] 2 N 2 LR 1 (New Zealand)
Zimbabwe
1. S v Ncube 1988 (2) SA 702(ZS)
TABLE OF CONTENTS
DECLARATION............................................................................................................... 2
Supervisor Declaration Certificate:.......................................................................................... 2
HUMAN RIGHTS DURING STATE OF EMERGENCY: ARTICLE 26
NAMIBIAN CONSTITUTION ..................................................................5
Chapter 1....................................................................................................13
1. HUMAN RIGHTS DURING STATE OF EMERGENCY: ARTICLE 26 OF THE
NAMINBIAN CONSTITUTION................................................................................... 13
1.1. Introduction...............................................................................................................13
1.2. Namibia’s historical background as from 1884 to 1990......................................13
1.3 The colonization of Namibia................................................................................... 13
1.4. The mandate..............................................................................................................14
1.5. The Namibian dispute internationally.................................................................... 15
1.6. Namibia’s evolution to Independence ...................................................................17
1.7. Statement of Problem.............................................................................................. 18
1.8. Research Questions.................................................................................................19
1.9. Research Methodology............................................................................................. 20
Chapter 2....................................................................................................20
2.1. Introduction ...........................................................................................................21
2.3. Institutions dealing with the state of emergency in Namibia................................21
2.4. Government Policy on State of Emergencies......................................................... 23
2.4.1. National Disaster Plan...........................................................................................23
2.4.2. National Policy....................................................................................................... 23
2.5.Chapter six (6) of the Defence Act, Act 1 of 2002: National Defence, Terrorism, Armed
Conflict, International Disorder and Other Emergencies........................................... 24
2.5.1. Section 27: Employments of the Defence Forces. ............................................. 24
Section 29: Mobilizations of the reserve force for the combating of terrorism, internal
disorder or........................................................................................................................ 24
other emergencies............................................................................................................ 24
2.6. Section 10 of the Police Act, Act 19 of 1990: Employment of Force in times of
Emergencies......................................................................................................................24
2.7.1. Does Namibia or Parliament need to enact a state of emergency Act? ......... 25
2. Section 37 of the Constitution of South Africa provides for the State of Emergency Act of
1997. ................................................................................................................................ 26
Chapter 3....................................................................................................29
3. The Constitution of Namibia...................................................................................... 30
3.1. Introduction...............................................................................................................30
3.2. The Interpretation of the Constitution................................................................... 30
3.3. Ex parte Attorney–General, Namibia: In re: Corporal Punishment by Organs of State
1991 NR 178 (SC).............................................................................................................31
3.4. Entrenchment............................................................................................................33
3.4.1. Article 131 of the Namibian Constitution: Entrenchment of Fundamental Rights and
Freedoms. ........................................................................................................................ 33
3.5. Amendments to the Constitution.............................................................................33
3.6. How to amend the Constitution...............................................................................33
3.7. First amendment to the Constitution......................................................................34
Chapter 4....................................................................................................34
4. The Limitation of Human Rights during a state of emergency and Rights that may not be
derogated from.................................................................................................................35
35
4.1. Introduction..............................................................................................................35
4.2. The Distinction between limitation and derogation of rights............................... 35
4.3. Limitation of human rights......................................................................................35
4.4. Article 22 of the Namibian Constitution: Limitation upon Fundamental Rights and
Freedoms.......................................................................................................................... 36
4.5. Derogations of Rights............................................................................................... 37
4.5. Article 11 of the Namibian Constitution: Arrest and Detention.......................... 38
4.6. Non-derogable Rights...............................................................................................41
5. Namibia’s Obligation under International Law..................................................... 42
5.1. Introduction...............................................................................................................42
5.2. Namibian’s International Treaty Obligations.....................................................43
5.3. European Court of Human Rights (ECHR)..........................................................44
5.4. The United Nations................................................................................................... 45
5.5. Africa ........................................................................................................................ 46
5.6. Europe........................................................................................................................46
5.7. Islamic States...........................................................................................................46
5.8. Israel...........................................................................................................................47
Chapter 6....................................................................................................47
6. Conclusions and Recommendation............................................................................ 47
6.1. Conclusion................................................................................................................. 47
6.2 Recommendation ...................................................................................................... 49
7. Bibliography.......................................................................................... 50
Chapter 1
1. HUMAN RIGHTS DURING STATE OF EMERGENCY: ARTICLE 26 OF THE NAMINBIAN
CONSTITUTION
1.1.
Introduction
In March1990, the people of Namibia for the first time in their history have their own Constitution,1 as the
fundamental legal framework upon which their future was to be built.
The Constitution of the Republic of Namibia is regarded as the Supreme Law of the country.2 There were
major challenges. One of these challenges was to internalize the spirit, values and ideals of human rights as
enshrined in the Constitution. Another challenge, on the other hand, was how to use necessary and
reasonable state power to protect the life of the nation and safety of the Namibian people during times of
hostilities.
The crucial issues are how to balance the constitutional order of the country and human rights, and whether
Namibia needs a State of Emergency Act, as in the case of South Africa. Therefore, this chapter will focus
on the introduction, background/ content, and the statement of the problem, the research question, and the
research methodology.
1.2. Namibia’s historical background as from 1884 to 1990
Namibia is located at the southwestern part of the African continent with over 820 000 square kilometres
large, with a population of approximately 1.8 million people. Namibia has an Atlantic coastline to the west
of about 1000 kilometres and bordered by Angola to the north, the Republic of South Africa to the south,
and to the east by Botswana and marginally by Zambia. Windhoek is the capital city. The country is rich in
mineral and natural resources including diamonds, lead, uranium, zinc and fish. The mainstay of the
economy is mining, fishing, agriculture and tourism.
Before independence the country has had a protracted dispute with South Africa. The dispute concerning
Namibia has revolved around South Africa’s illegal presence in Namibia that has plagued the United
Nation since its inception in 1945 and Namibia’s struggle for self-determination.
1.3 The colonization of Namibia
1
. The Constituent Assembly Proclamation, 1989 (AG 62/1989).
. Article 1 (6) of the Constitution of Namibia, Act 1 of 1990.
2
South West Africa/Namibia as it was then known, fell prey to European colonial expansion in the
nineteenth century and became a German protectorate in 1884. The General Act of Berlin of 1885 ratified
this possession. The General Act has divided most of the African countries among the European colonial
powers.3
German laws and administration were applied in the central and southern parts of the country known as the
“Police Zone”.4 German rules were brutal and sometimes verge on the genocidal. The First World War
(WW1) brought this period to an end when on the 9th July 1915 German rule in Namibia was effectively
ended, and South African forces occupied South West Africa.
1.4. The mandate
After World War One, the colonies of the defeated powers, which were inhabited by people not yet able to
stand by themselves under strenuous conditions of the modern world, were placed under the administration
of the victorious allies in accordance with the Mandate system created by Article 22 of the League of
Nations Covenant5. The mandatory power were entrusted with ‘the well-being and development’ of the
mandate which formed ‘ a sacred trust of civilization’.6
Martial Law was declared for the first in South West Africa (SWA) on 13 August 1915 by the South
African forces under Proclamation of Martial Law 1 of 1921, which ratified the legal measures taken
during the period of martial law. During this time South West
Africa became a ‘Protectorate’ of South Africa in terms of the Treaty of Versailles signed on the 28th June
1919. In 1919, the Treaty of Peace and South West Africa Mandate Act of 1919 gave effect the mandate of
South West Africa. This Act delegated the administration of the territory of SWA/Namibia to the
Governor-General of South Africa, who was given legislative and administrative power. During 1919 to
1921 the Administration of Justice Proclamation 21 of 1919 introduced Roman-Dutch law to South West
Africa. In 1925, the
3
. Ibid: Naldi G, supra: Parham T. (1991) The Scramble for Africa. Ch 14: A brief historical account of the period till
independence is given in Inquest: The late A. T. E. A. Lobowski (Inquest 1/94 High Court of Namibia) 14-20 at 1516.
4
. Area such as Ovamboland, Kaokoland, Hereroland, Kavango and Caprivi Strip are excluded from the Police Zone.
5
. Q Wright, Mandates under the League of Nations (1930); (Dugard J, The South West Africa/ Namibia Dispute (1973) Chapters
3-4; and Dugard J, 1994. International Law: A South African Perspective) p19.
6
. Naldi G 1995, The Constitutional Rights in Namibia supra. P2
South West Africa Constitution Act of 19257 was adopted, which provided for the appointment of an
Administrator and the election of an all-white Legislative Assembly and Executive Committee. The South
West African Administrator continued to have an administrative power, subject to the direction and control
of the President of South Africa, who had full powers to administer the territory as an integral portion of
the Republic.8
This was followed by the Development of Self-Government for Native Nations in South West Africa Act
of 19689, which was designed to lead native nations in the territory to
self-governing and independence.
1.5. The Namibian dispute internationally
In 1946, the League of Nations was dissolved but the Mandate was still in existence, except for South
West Africa/Namibia, which was placed under the Trusteeship System of the United Nations (UN),
inspired by the same principles as the mandate system10. After the dissolution of the League of Nations,
South Africa refused to place South West Africa/Namibia under Trusteeship System and held that the
League dissolved, and South Africa was no longer under obligation towards South West Africa and had
therefore, tantamount to annexation. This has led to the UN General-Assembly to seek advisory opinion
from the International Court of Justice (ICJ) asking it to ascertain the international status of
SWA/Namibia, and what was South Africa’s obligation, arising therefrom.11 The ICJ dismissed the South
African argument that it was the sovereign power in SWA/Namibia as the mandate had expired with the
League. If so, South Africa’s authority would similarly have lapsed. South Africa remained bound by the
obligation under the mandate, and the Un General-Assembly had assumed its supervisory powers. The ICJ
had expressed the view that South Africa could not unilaterally modify the status of SWA/Namibia but the
consent of the UN General-Assembly was necessary. South Africa has rejected the opinion, maintaining
that the mandate had lapsed with the League, and it refused to co-operate with the UN.
7
7 International Status of South West Africa 1950 ICJ Reports 128. Marine Steel Ltd v Government of the Marshal
Islands [1981] 2 N2LR1, where the High Court of New Zealand stated that an administering power does not exercise
sovereignty over a trust territory.
8
Republic of South Africa.
9
Act 54 of 1968.
10
Chapter XII-XIII UN Charter: Dugard J, The South West Africa/Namibia Dispute, (1973) Chapter 5.
11
Naldi G, 1995 Constitutional Rights in Namibia supra p 2.
In its 1955 Advisory Opinion, the ICJ stated that the UN General-Assembly did have the constitutional
authority to administrate SWA/Namibia, but should not exceed that which existed under the mandate and
should ‘conform as far as possible to the procedure followed by the League12.’ The assumption of
supervision by the General Assembly did not have the effect of crystallizing the mandate system at the
point, which it had reached in 194613.
In 1960 Ethiopia and Liberia,14 instituted contentious proceedings against South Africa before the ICJ
requesting, amongst others, to declare South Africa in violation of the mandate by introducing apartheid
into SWA/Namibia. In 1962, the ICJ rejected South Africa’s objections that the mandate was no longer a
treaty in force, and the Applicants did not have legal standing, as they were no longer Members of the
League. This had resulted in a highly controversial volte-face in 1966 when the ICJ heard the case on the
writs and decided that Ethiopia and Liberia did not have legal stand as South Africa’s outstanding
obligations under the mandate were owed to the League and not to its individual members.15
In 1967, the UN Council of Namibia was created entrusted with the task of administering the territory and
preparing it for independence.16 The Council had dissolved in 1990 shortly after Namibia gains its
independence. South West Africa was renamed Namibia in 196817.
The Security Council formally
recognized the UN General-Assembly’s revocation of the mandate, and the presence of South Africa in
Namibia was illegal and null and void. South Africa was ordered to withdraw from Namibia.18 In 1971,
the ICJ reaffirmed that the Mandate had survived the demise of the League and that the UN had inherited
its supervisory powers.19 In 1969, the South West Africa Affairs Act was adopted, which deprived the
South West Africa Legislative Assembly of much of its autonomy and made Namibia a virtual province of
12
Voting procedure on Questions Relating to Reports and Petitions concerning the Territory of South West Africa
1955 ICJ Reports 65, 67; Zacklin, op cit, pp 261-3.
13
Admissibility of Hearings of Petitioners by the Committee of South West Africa 1956 ICJ Reports23 Zacklin, op
cit pp 264- 7
14
SWA Cases (Ethiopia v South Africa; Liberia v South Africa), Preliminary Objections, 1962 ICJ Reports 319;
Dugard, op cit, Ch 8; Zacklin, op cit, pp 268 – 79.
15
19.SWA Cases (Ethiopia v South Africa), Second Phase, 1966 ICJ Reports 6; Dugard, op cit, ibid; Zacklin, op cit,
pp 280 – 7; B Cheng, The 1966 South West Africa Judgment of the World Court, 20 Current Legal Problems (1967)
181.
16
General Assembly Resolution 2145 (XXI) 1966; Dugard, op cit, Ch 9; G Marston, Termination of Trusteeship, 18
ICLQ (1969) 28.
17
General Assembly Resolution 2372 (XXII).
18
Security Council Resolution 2372 (XXII) and 276 (1970).
19
Namibia Case 1971 ICJ Reports 16; Dugard, op cit, Ch 10; Zacklin, op cit, pp 288 – 307; J F Murphy, Whither now
Namibia?, 6 Cornell International Law Journal (1972) 1.
South Africa. In 1977, the RSA Proclamation20 of 1977 abolished the South West Africa seat in the South
African Parliaments, and appointed the first Administrator-General in whom ultimate power to govern
Namibia was resided.
In 1973, the South West Africa People Organization (SWAPO) was recognized by the General Assembly
as Namibia’s national liberation movement and the legitimate representative of the Namibian people. 21
External pressure on South Africa to allow the people of SWA/Namibia to determine their own future has
led to the Turnhalle Constitutional Conference22, which was boycotted by SWAPO. In 1978 South Africa
proceeded unilaterally with the “internal election” for a Constituent Assembly to draw up a Constitution
for an independent SWA/Namibia, pursuant to the Constituent Assembly and Election Proclamation of
1978.23 In 1985 the ‘Transitional Government of National Unity’ was formed. The new transitional
arrangements were composed of a Legislative and Executive Authority established by RSA Proclamation
of 1985, complemented by a Constitutional Council established by the Constitutional Council Act of
198524, which incorporated the “Bill of Fundamental Rights and Objectives”.25
1.6. Namibia’s evolution to Independence
During 1975 to 1985, the international opinion had resulted in the passage of the UN Security Council
Resolution 435 of September 1975, which set on the framework for free and fair elections to be held in
Namibia under international supervision. The move on the settlement has stagnated until 1988 when South
Africa’s involvement in the Angolan conflict proved too costly. It had resulted from the defeat of the South
20
Proclamation R 249 of 28 September of 1977
General Assembly Resolution 3031 (XXVII) 1972 and 3111 (XXVIII) 1973; H A Wilson, International Law and
the Use of Force by National Liberation Movements (1988) pp 122 – 3. On SWAPO, see L Cliffe (ed), The Transition
to Independence in Namibia (1994) pp 17 – 33. It is interesting to note that in S v Mule en ‘n Ander 1990 (1) SACR
517 (SWA) the Court expressed the opinion that the armed struggle in Namibia fell within the definition of an ‘armed
conflict’ in terms of Article 1 (4) of Protocol I of 1977 Additional to the Geneva Conventions 1949, thereby giving
credence to the view that the war was one of national liberation. See also, Cultura 2000 v Government of the Republic
of Namibia 1993 (2) SA 12 (Nm), 28.
22
1975.
23
AG 63 of 1978.
24
Act 8 of 1985.
25
The problem in respect of the 1985 Bill of Rights was that its provisions were only applicable to legislative acts of
the National Assembly, which was established as an interim Government for South West Africa by Proclamation
R101 of 1985. Some dissension regarding this point which existed at the time in the Supreme Court of South West
Africa was finally resolved by the Appeal Court in the case of Interim Government of South West Africa v Katofa
1987 (1) SA 695 (A).
21
African forces in the battle of Cuito Cuanavale in Southern Angola.26 Thereafter, negotiations were
conducted in good faith between Angola, Cuba and South Africa in and the catalogue of general principles
that would form the basis of settlement was progressed swiftly.27
In August 1988, Angola, Cuba and South Africa signed a tri-partite Geneva Protocol, which accepted the
implementation of Security Council Resolution 435, in December 1988, which was called the Brazzaville
Protocol.28 The implementation of resolution 435 began on 1st April 1989 under the ‘supervision and
control’ of the United Nations’ represented by the UN Special Representative and the United Nation
Transitional Assistance Group (UNTAG). Election was held in November 1989, pursuant to the
Registration of Voters Proclamation of 198929, and the Registration of Political Organizations
Proclamation of 1989.30
In February 1990 the Constituent Assembly approved by consensus the
constitution for an independent Namibia. A constitution was speedily adopted and Namibia became an
independent state on 21st March 1990, with the Constitution of Namibia as the Supreme Law of the
Republic.31 In April 1990, Namibia was admitted to the UN as its 160th member.32 The Constitution of
Namibia as the Supreme Law of Namibia established Article 26: State of Emergency, State of National
Defence and Martial Law, which is the main focus in this dissertation.
1.7. Statement of Problem
Generally, there is no big difference between martial law and state of emergency, because martial law is
usually proclaimed in times of war and serves mainly as justification for military authorities to exercise
extraordinary power, while state of emergency is not concerned with war but serves as justification for
extraordinary powers which are exercised mainly by the military and the non-military authorities. During
the time of state of emergency, the subjects’ rights, liberties and freedoms, must constantly be weighed
against the interest of the community of which the state is bearer.
26
Keesing’s Report on World Events (hereafters Keesing’s) 1988. Vol 34. Pp36077 8: Clife op cit, pp57-60 Sparks
and Green, op cit, pp47-8.
27
Naldi G. Constitutional Rights in Namibia supra, P 7.
28
Keesing’s 1988, Vol. 34, P 3638: Kamto, Op at, pp 601-3.
29
AG 19 of 1989.
30
AG 49 of 1989 as amended by AG 59 of 1989.
31
Du Pissani A, 1986, SWA Namibia: The Politic of Continuity and Change.
32
On 21 March 1990 Namibia was also admitted to membership of the African Unity, the
then Organization of African Unity.
Previously, the Parliament had the legislative supremacy to place a restriction on any human rights, and
that no court of law, can pronounce upon the validity of this legislation. There was no justification for the
violation of human rights, because of the principle of “parliamentary sovereignty.”33 The only justification
for the violation of the rights of subjects was necessity or self-defense, which was supported by Roman,
English and Roman-Dutch legal systems.34
The coming into being of the Namibian Constitution35 on the 9th February 1990 presented Namibia with
some major challenges. One of these challenges was for Namibians to internalize the spirit, values and
ideals of human rights as enshrined in the Constitution. Another major challenge on the other hand, was to
use necessary and reasonable state power to protect the life and the safety of the nation.
This research will analyze the South African Emergency Act, with a view to answer to the question as to
whether Namibia, or the Parliament need to enact a State of Emergency Act, or not. The research will also
investigate whether Article 26 of the Namibian Constitution and Proclamation No. 23, No.24 and
Regulations thereof, made by the President of Namibia with regard to the Caprivi secessionists movement,
could be used in guiding and protecting suspects during the state of emergency.
1.8. Research Questions
South West Africa/Namibia has had considerable experience with state of emergencies, which were
declared on a number of occasions by the South African apartheid regime to stifle opposition to its
policies, which resulted in gross violation of human rights. The current dispensation 36 is fundamentally
dissimilar. Post-independence Namibia was confronted with those conflicting interests, after an armed
group attempted to secede Caprivi Region from the rest of Namibia in August 1999. The unease situation
in the Caprivi Region has led to the declaration of the state of emergency. The fundamental question was
how to balance the constitutional order of the country and human rights.
In view of the afore-said, the questions to be asked are: (a) Does Namibia, or the Parliament needs to enact a State of Emergency Act, or not?
33
Basson D. A. et al, 1988, Constitutional Law at p-246. The Parliament was supreme.
Snyman (1995, pp106-107) in Collins A. 2002, Human Rights Law p190.) holds that, a person acts
in necessity, and his act is therefore lawful, if he acts in protection of his or somebody else’s life, bodily integrity,
property or other legally recognized interest which is endangered by a threat of harm which has commenced or is
imminent which cannot be averted in any other way.
35
Act 1 of 1990 by the Constituent Assembly Proclamation 62 of 1989 (AG 62 of 1989)
36
The Independence of Namibia on 21st March 1990.
34
(b) What are the limits of a state of emergency and what rights may not be derogated from?
(c) What are the impact of the state of emergency on freedoms of arrested persons, detention and
their right to fair trial?
(d) Should the Namibian courts, in adjudicating upon state of emergency cases, be guided by
international law obligations?
1.9. Research Methodology
The methodology to be employed in this research is the qualitative method, which include documentary
study as well as the collection of information from Internet websites. Books, articles in magazines, and
articles in newspapers, legislation as well as law reports are used as documentary sources, to eliminate the
necessity for further empirical investigation.
Chapter 2
2. STATE OF EMERGENCY/DISASTER, NATIONAL DEFENCE AND MARTIAL LAW.
2.1.
Introduction
Proclamations37 of the 2nd August1999 on the state of emergency in Namibia, is emanated from the South
African Civil Defence Proclamation, 1978 (Proclamation AG 54 of 1978). In its definition ‘disaster’
includes an act of God, the influx of refugees into the territory, or any consequences arising out of
terrorism as defined in the Terrorist Act, 1967 (Act 83 of 1967). ‘State of emergency’ means a state of
emergency which exist during (i) a state of emergency
referred to in section 2 of the Public Safety
Act, 1953 Act 3 of 1953); or (ii) ‘time of war’ as defined in section 1 (1) of the South African Defence
Act, 1957 (Act 44of 1957).
There is no big difference between martial law and state of emergency, state of emergency serve mainly as
a justification for extraordinary powers which are exercised mainly by military and non-military
authorities.38 Namibia has experienced several emergencies after independence. For example the Caprivi
armed hostilities in 1999, the Caprivi flood in 2003, Oshigambo, the Mariental flood and the current
‘Emergence National Polio Immunization Campaign’ of June 21 to 23, July 18 to 20 and August 22 to 24
of 2006, to mention but a few. National Defence on the other hand is nothing else than state security. The
national defence is the manifestation of constitutional necessity which provides mainly for times in which
neither martial law or state of emergency is proclaimed.
The modern concept ‘ state security’ which serves as justification for the violation of human rights by
means of security regulation takes more account of more subtle types of threats to the continued existence
of the state than war, rebellion or state unrest.39 The legal ways in which national defence or state security
can be enforced include criminal law, criminal procedure law, the law of evidence and wide variety of
actions by the executive authority. This chapter is to concentrate more on the state of emergency of the
2nd August 1999, in Caprivi Region.
2.3.
Institutions dealing with the state of emergency in Namibia.
The Constitution of Namibia provides the guidelines to the Executive branch, National Assembly the
Judicial branch and other relevant stakeholders, as to how to deal with the state of emergency. In regard of
37
Proclamation No. 23 and No. 24 of the 2nd August 1999.
Basson A. D. et al, 1988. Constitutional Law, JUTA & CO. Ltd, Cape Town, p249.
39
Bason A. D. et al, 1988, supra p 252.
38
the Executive Branch, Article 26 (1) of the Namibian Constitution empowers the President to declare state
of emergency in Namibia. In terms of the said Article, the National Assembly is given the right to nullify
the state of emergency, if it is not consistent with the provision of the Constitution. The Judicial Branch or
the Courts of Namibia is also empowered to declare the declaration of the state of emergency null and
void, if the executive (President) goes beyond the limit of the constitution.
2.3.1. Article 26 of the Namibian Constitution: State of Emergency, National Defence and Martial
Law
With regard to Article 26, the main focus will only touch on Sub-Article (1) and (5) which was in force
during the armed hostilities in the Caprivi Region in 1999.40 The unsteadiness situation in Caprivi region
has shaken the whole nation. Some traditional leaders have called in the government to get involved. The
President of the Republic of Namibia and, or the government had responded positively to rescue the
situation by declaring a state of emergency in terms of Article 26 of the Namibian Constitution.
Article 26 (1) stipulates that; “[at] time of national defence or public emergency threatening the life of the
nation or the constitutional order the President may by Proclamation in the Gazette declare that a state of
emergency exist in Namibia or any part thereof. Article 26 (5)41 provides that:
(a) “[D]uring a state of emergency in terms of this Article or when a state of national defence prevails, the
President shall have the power by Proclamation to make such regulations as in his or her opinion are
necessary for the protection of national security, public safety and the maintenance of law and order.
(b) The powers of the President to make such regulations shall include the power to suspend the operation
of any rule of the common law or statute or any fundamental right or freedom protected by this
Constitution, for such period and subject to such conditions as are reasonably justifiable for the purpose of
deciding with the situation which has given rise to the emergency: provided that in this paragraph shall
enable the President to enact contrary to the provisions of Article 24.
40
As it was declared by the President in Proclamation No.23 under Proclamation 6 of
3 March 1992, and Proclamation No. 24 under Proclamation No. 23 of 2 August 1999.
41
The Namibian Constitution: Act 1 of 1990
(c) Where any regulation made Paragraph (b) provides for detention without trial, provision shall also
made for an Advisory Board, to be appointed by the President on the recommendation of the Judicial
Service Commission, and consisting of no more than five (5) persons, of whom no fewer than three (3)
persons shall be Judges of the Supreme Court or High Court or qualified to be such. The Advisory Board
shall perform the function set out in Article 24 (2) (c).” This means that the executive instead of the
Parliament declares the declaration of the state of emergency in Namibia. In this regard one has also to
look to the government policy on state of emergency in Namibia.
2.4. Government Policy on State of Emergencies
The Government of the Republic of Namibia does not have ‘government policy’ in place. Emergencies
are dealt with by the National Emergency Management system in the Office of the Prime Minister, which
put up a national disaster plan.
2.4.1. National Disaster Plan
Namibia has a national disaster plan42 which deal with emergencies and/or disasters. The well-known
disaster threats in Namibia are drought disaster, flood, deforestation, epidemics, pest infections, chemical
and industrial accidents, environmental pollution, earthquake and acts of terrorism and civil disturbance.
2.4.2. National Policy
The President of the Republic of Namibia has issued a Cabinet Memorandum establishing a National
Emergency Management system to be able to put the nation at highest level of preparedness for any kind
of natural or man made disaster, to be able to implement and coordinate emergency operations to save life,
minimize sufferings, protect property and rehabilitate the lives of the affected population. The President
has also established a National Emergency Management Committee (NEMC) to be chaired by the
Secretary to the Cabinet. To this extent the Cabinet Memorandum also establishes a permanent unit within
the Office of the Prime Minster, known as the Emergency Management Unit (EMU), to perform the
routine tasks of developing strategies for reducing vulnerabilities and coordinate emergency operations.
According to the National Disaster Plan of 1998 there is not yet an Act in Namibia, which deals with
emergencies/disaster. When there are acts of terrorism or civil disturbance, the Ministry of Home Affairs,
the Ministry of Defence and municipalities are the key players in resolving such crises. The conclusion is
that the National Disaster Plan of 1998 does not mention anything on the question of human rights even
during the time of civil disturbance or acts of terrorism.
At the government level and non-governmental organizations, Emergency Operational Units (EOUs), at
regional and constituency levels, Regional Emergency Management Units (REMUs), Constituency
42
National Disaster Plan of 1998.
Emergency Management Units (CEMUs) have been established to ensure that the nation as a whole
possess an institutionalized capacity to deal with emergencies and or disasters. Hereunder is the ‘National
Emergency Management System Flow Chart.
2.5.
Chapter six (6) of the Defence Act, Act 1 of 2002: National Defence, Terrorism,
Armed Conflict, International Disorder and Other Emergencies
2.5.1. Section 27: Employments of the Defence Forces.
This section provides that, ‘subject to this Act, the whole or any portion or any member of the Defence
Force may at any time be employed on service in defence as provided in section five (5) of the Act.43’
Section 29: Mobilizations of the reserve force for the combating of terrorism, internal disorder or
other emergencies.
Section 29 (1) provides that the President may, by proclamation in the Gazette or in the said manner as the
President may consider expedient, call out the whole or any portion of a reserve force for service(a) in the prevention or suppression of terrorism;
(b) in the prevention or suppression of internal disorder in Namibia;
(c) in the preservation of life , health or property; or
(d) in the maintenance of essential services.
Subsection two (2) empowers the Minister44 to call out the whole or any portion of the reserve force for
mobilization in any service referred to in subsection (1), but not in any case longer than four days.
Subsection (3) empowers the Chief of the Defence Force or any officer authorized thereto by the Chief of
the Defence Force where the urgency of the circumstances in a magisterial district of Namibia requires the
immediate employment of the members of the Defence Force, call out the portion of the reserve force
resident in that magisterial district for mobilization in any service referred to in subsection (3) before any
action can be taken under (1) and (2), all or some of the members of the reserve force who are resident in
the magisterial district concerned, may in such anticipation action, on the authority of the Chief of the
Defence Force or authorized thereto by the Chief of the Defence Force, in such manner as may considered
expedient, be called upon for any such service, and any action under this section has the same force and
effect as any corresponding action by the President under subsection (1) any officer but does not remain
in force in any case for longer than 24 hours.
2.6.
Section 10 of the Police Act, Act 19 of 1990: Employment of Force in times of Emergencies
Section 10 (1) provides that: “[T]he President may in any regulations which he or she may make under the
provisions of Article (26) (5) of the Namibian Constitution, during the state of emergency or national
defence contemplated in that Article,45 make provisions for the employment of the Force or any part
43
Act 1 of 2002.
Minister of Defence, Namibia.
45
Article 26 of the Namibian Constitution.
44
thereof to assist in countering any part thereof, while so employed, under the orders and directions of such
person as the President may for that purpose appoint.
Section 10 (2) provides that, the Force or the said part thereof shall while so employed, be subject to the
laws governing the discipline, command and control of the Namibian Defence Force when on active or
military, but shall not thereby be excluded from the operation of this Act. Provided that no member of the
Force shall be prosecuted for any offence under this Act as well as the laws governing the discipline,
command and control of the said Defence Force.”
During this time special measure was required to protect the state and the public. Therefore, it is necessary
for the state to derogate temporarily from its obligations to protect fundamental rights. In some states for
example the Republic of South Africa, they have a State of Emergency Act46, which regulate their
declaration of state of emergency. Namibia does not have an emergency Act; Article 26 (1)47 only provides
general guidelines in this regard. The President empowered by an Act of Parliament does the declaration of
state of emergency in South African. The purpose of this chapter is, however, to investigate whether
Namibia or Parliament need to enact the state of emergency Act, or not.
2.7.1. Does Namibia or Parliament need to enact a state of emergency Act?
Generally speaking, it is accepted that in time of war or internal revolt, states encroaches upon the rights of
an individual, in terms of the principle “publicae suprema lex48” contained in Roman law, Roman-Dutch
law and English law.49 A state of emergency declared in terms of the Constitution,50 will differ to a large
extent from the previous state of emergency declared before Independence. At the international level,
Article 29 (2) of the Universal Declaration of Human Rights provides that, [in] the exercise of his rights
and freedoms, everyone shall be subject only to such limitation as are determined by law solely for the
purpose of seeing due recognition and respect for the rights and freedoms of others and of meeting just
requirements of morality, public order and the general welfare in a democratic society.
Article 26 (1)51 provides for the legal certainty and clear legal framework, because it explains as to when
and what condition a state of emergency may be declared and fundamental rights may be suspended. It
provides that a state of emergency may only be declared when the life of the nation is threatened and
exceptional measures are temporarily necessary to restore peace and order.
46
Section 37 of Act 108 of 1996.
Namibian Constitution: Act 1 of 1990.
48
The justification for the violation of rights of subjects, as necessity of self-defence.
49
Basson A.D. et al 1998. Constitutional Law, JUTA & CO. Ltd, Cape Town, at p245
50
Basson A. D. et al 1998. Constitution Law, at p 245: “Salus reipublicae suprima lex” 1977 THRHR 233 at 243-7
(hereafter referred to as Venter Salus reipublicae). This maxim is the only justification for the violation of the right of
the subjects as necessity of self-defence. Basically “the safety of the state” (as reflected in the Maxim) means the
opposite of the destructions, or demise of a state, from which it follow that the maintenance of the state security would
prevent the downfall of the existing constitutional order.
47
51
The Namibian Constitution: Article 1 of 1990.
Many international human rights instruments contain provision similar to Article 26 of the Namibian
Constitution. Before Independence, the South African apartheid government has declared a state of
emergency, and this kind of state of emergency had resulted in gross violations of human rights. The
current dispensation is different from the previous apartheid practices. Human rights are now protected in
Namibia by a supreme constitution.
The suspension of rights will henceforth be possible under the conditions prescribed by law, particularly
Article 22, 24 and 26 of the Namibian Constitution. Therefore, the declaration of a state of emergency, its
existence and the measures that can be taken during the emergency period will all be justifiable. The
uncontrolled power of the executive on the state of emergency under apartheid government has been
curbed52, and the jurisdiction of the judiciary (courts) can no longer be ousted during the state of
emergency. The Parliament of Namibia has also given an important supervisory role over the conduct of
the state of emergency.53 But even all facilities are in place people were not aware of those conditions put
in place by the regulations. The main critical issue is that human rights are always vital even during the
state of emergency period.
Therefore, by constitutionalising the states of emergency, clear rules must be provided, as to when they
may be employed, and by laying down maybe what ought to be done during that period, and how abuse of
power will be prevented, so that state of emergency can be made ‘compatible’ with the protection of
human rights and judicial review.
2.
Section 37 of the Constitution of South Africa provides for the State of Emergency Act of 1997. 54
Its aim is to provide for the declaration of a state of emergency; to empower the President to make
regulations in pursuance of any such declaration, and to provide for matters connected therewith. This
means that the declaration should be made under the enacted law.
52
This has been curbed when Namibia gains its independence on 21st March 1990, when a Constitutional state has
been established under democracy, rule of law and justice for all: Article 1 (1), Namibian Constitution.
53
Article 26 (5) of the Namibian Constitution.
54
Collins P, 2002 Human Rights Law supra, p170.
Articles 26 of the Constitution of Namibia have similar provisions, but it did not provide the enactment of
a state of emergency Act. Similar provisions are contained in Article 25, 30 and 31 and section 25 in the
Zimbabwean Constitution. It is very important to note that in Namibian Article 26 of the Namibian
Constitution, and Article 30 of the Zambian Constitution, it is the Head of the Executive Organ of State
who is empowered to declare a state of public emergency.
However, in the Republic of South Africa, in terms of section 37 of the South African Constitution, the
power is vested in Parliament. It must also note that in Namibia, the role of the Parliament in state of
emergency is to decide whether to confirm the executive declaration and allow the state of emergency to
remain in force or to revoke it. The Zambian Parliament also plays the same role.
The emergency Act is needed because it gives the President the power to declare a state of emergency as
prescribes by law. Prescribed by law means as it is authorized by an enacted law and/or law made by the
Parliament. The whole idea is that a proclamation by the executive could not be regarded as law, but rather
a public statement or policy.55’ This simply means that principles describe rights while a policy describes
goals. Statements of policy justify political decision by showing that the decision advances or protects
some collective goal of the community as a whole. Statements of principles justify political decision by
showing that the decision respects or secure some individual or group rights. For the proclamation or
regulations made by the executive to be lawful, it must have authority derived from the original legislation
or law made by Parliament. Article 26 has only made general provisions and guidelines for the declaration
of the state of emergency, but it is not an enacted law.
Article 15 (1) of the European Convention, has the same provisions that measures derogating from
guaranteed human rights might be taken in time of war or other public emergency. This means that the
European Commission always has the competence and the duty under Article 15 to examine and
pronounce upon a government’s determination of the exercise of a public emergency threatening the life of
55
In Sunday Times v United Kingdom (Collins A, p171}, the European Court held that “law” covers
not only statute law but also unwritten law; and statute includes subsidiary or subordinate legislation. This holding
was also raised in the case of Patel v Attorney General of Zambia (Collins p 171).
Collins went further and stated that if “law” is qualified by the adjective “prescribed”, then it is used as a countable
noun. Therefore, it is restricted to the law that is passed by the legislature (an Act of Parliament) or a rule or regulation
made under authority of legislation.
the nation for the purpose of the Article, but some discretion and margin of appreciation must be allowed
to a government in determining whether there exists a public emergency which must be dealt with by
exceptional measures derogation from its normal obligations under the convention.56
Article 14 (3) of International Convention on Civil and Political Rights provides that, a duty of notification
of any derogation brought about by a declaration of state of public emergency, should ‘immediately’
inform the other parties about derogations through intermediary of the Secretary General of the United
Nations. The reason is to alert the United Nations for possible humanitarian assistance when the need arise.
The next chapter looks into the establishment of the Namibian Constitution, constitutional interpretation,
entrenchment, and the question whether the constitution could be amended to accommodate the enactment
of the state of emergency Act.
56
European Convention on Human Rights.
Chapter 3
3. The Constitution of Namibia
3.1. Introduction
The Preamble of the Constitution of Namibia57 has clearly states that: “[W] hereas we the people of
Namibia, have finally emerged victorious in our struggle against colonialism, racism and apartheid; are
determined to adopt a Constitution which expresses for themselves and their children their resolve to
cherish and to protect the gains of their long struggle; desire to promote amongst all of them the dignity of
the individual and the unity and integrity of the Namibian nation among and in association with the nations
of the world; will strive to achieve national reconciliation and to foster peace, unity and a common loyalty
to a single state; committed to these principles, have resolved to constitute the Republic of Namibia as a
sovereign, secular, democratic and unitary State securing to all their citizens justice, liberty, equality and
fraternity.”
The affirmation made by the Namibian people is a clear indication that they accept and adopt their
Constitution as their fundamental law of their sovereign Independent Republic.
Article 1(2)58 has made it clear that all the power shall vest in the people of Namibia who shall exercise
their sovereignty through the democratic institutions of the State, and declared that the Constitution shall
be the ‘supreme law’ of the country.
3.2. The Interpretation of the Constitution
Article 78 of the Namibian constitution establishes the judicial power in Namibia. Article 78 (1) provides
that the judicial power shall be vested in the courts of Namibia. The courts of Namibia shall be
independent and subject only to the Constitution and the law, and that no person shall interfere with judges
or judicial officials.
57
58
Act 1 of 1990
The Constitution of Namibia.
Article 7959 provides that the Supreme Court shall hear and adjudicate upon appeals, which involve the
interpretation, implementing and upholding the Constitution and fundamental rights and freedoms
guaranteed in the Constitution.
Article 8060 provides that the High Court shall have original inherent jurisdiction to hear and adjudicate
upon civil disputes and criminal prosecutions including interpretation, implementation and upholding the
Constitution and the fundamental rights and freedoms guaranteed thereunder.
The Namibian judiciary has to interpret the Constitution in light of its aims, objects, spirit and values. 61
The said interpretation and implementations were held in the case of Ex Parte Attorney General’s case62
below.
3.3.
Ex parte Attorney–General, Namibia: In re: Corporal Punishment by Organs of State 1991 NR 178
63
(SC)
The Attorney-General Namibia has asked the Supreme Court to decide if corporal punishment (whipping
or canning) by State institutions was in conflict with the Constitution. The Court has looked into Article 8
(2) (b) of the Constitution64 and separate each of the sub-element in that Article: That the sub-article
prohibited punishment or treatments that constitute torture, was cruel or inhuman, or degrading in the first
place.
Secondly, in holding its decision on value judgment, the court has looked at the present values of the
Namibian people as expressed in Namibia’s national institutions, the Constitution and at values of the
civilized international community of which Namibia is a part.
The Constitution is ‘not simply a statute’ which mechanically defines the structures of the government and
the relations between the government and the governed; but it is a ‘mirror’ reflecting the national soul, the
identification of the ideals and aspirations of the nation; and the articulations bonding its people. Its spirit
59
.Ibid. Act of 1990.
Ibid: Act of 1990.
61
Naldi, G, 1995. Constitutional Rights in Namibia: A Corporative Analysis with International Human
Ndaveni, Cape Towa, JUTA & Co, Ltd.
62
1991 NR 178 ( SC)
63
1991 NR 178 (SC): 1991 (3) SA 76 (NmS) (to be reported in the 1999 Namibia Law Reports)
64
Act 1 of 1990: Namibia
60
Rights;
and tenor must preside and permeate the processes of judicial interpretation and judicial discretion.65 The
interpretation of the Constitution must not be interpreted in a ‘narrow mechanistic, rigid and artificial’
manner.66 But it must be broadly, liberally and purposively interpreted to avoid the ‘austerity of tabulated
legalism’ to enable it to continue to play a creative and dynamic role in the expression and is the
achievement of the ideals and aspirations of the nation, in the articulation of the values bonding its people
and disciplining its Government.67
The court has rejected the literal and textual approach of interpretation, which is inappropriate to the
Constitution, and considers it to be a living instrument, which must be interpreted in the light of
contemporary conditions68, which appear to have adopted a purposive interpretation.69
O’Linn AJA in Frank case70 held similar holding that: ‘[it] presupposes that such exercise (lesbianism) is
undertaken to give content and meaning to words used in the Article.’
71
It was accepted in all cases that
the people of Namibia share basic values with all civilized countries and for that reason it is useful and
important to look at interpretation of other jurisdiction although the determining factor remains the values
expressed by the Namibian people as reflected, amongst others, in its various institutions.72 The
Constitution of Namibia does respect the values and social order in its provisions mostly in its preamble.
65
S v Acheson 1991 (2) SA 805(Nm), 813 per Mohamed AJ, S v Van Wyk 1992 (1) SACR 147 (NmS), 172:
Minister of defence, Namibia v Mwandingi 1992 (2) SA 355 (NmS), 359-60. In Kauesa v Minister of Home Affairs
(Case No. A125/94, unreported) pp67, 106-7, the High Court stated that the preamble was “an important internal aid
to the construction” of Constitutional provisions.
66
The Government of the Republic of Namibia v Cultura 2000 1994 (1) Sa 407, 418, per Mohamed CJ. Cf. James v
Commonwealth of Australia [1936] Ac578, 614, when Lord Wright said, “a Constitution must not be construed in any
narrow and pedantic sense.”
67
Government of the Republic of Namibia v Cultura 2000, supra. In Ex Parte Attorney General Namibia: In re:
Corporal Punishment by Organs of State 1991 (3) SA 76 (NmS), 86, the Supreme Court stated, albeit in relation to
corporal punishment, that regard must be had to “contemporary norms, aspirations, expectations and sensitivities of
the Namibian People as expressed in its national institutions and its Constitution, and further having regard to the
emerging consensus of values in the civilized community…which Namibians share. This is not static. It is a
continually dynamic.”
68
Cf Trop v Dulles (1958) 356 US 86 (USA); Hunter v Southam Inc. 11 DLR (4 th) 641 (Canada), S v Ncube 1988 (2)
SA 702 (ZS), 717 (Zimbabwe), Tyrer v United Kingdom [1978] Ser. A, No 26 (European Convention on Human
Rights), and Cf. James v Commonwealth of Australia, supra AC 614-15, where Lord Wright went on to say that,” The
true test must, as always, be the actual language used…The problems… of the Constitution can only be solved as the
y emerge y giving effect to the language used.”
69
See also, Minister of Defence Namibia v Mwandingi, supra. For a classic definition of the purposive approach
doctrine.
70
Chairperson of Immigration Selection Board v Frank and Another 2001 NR.
71
Article 8 (2) (b) of the Namibian Constitution
72
Namundjebo and Others v Commanding Officer, Windhoek Prison and Another’s, 2000 ( 6) BCLR, 671 Nm S, 678
F-l.
Section 35 (3) of the 199373 Constitution blurred the traditional difference between the interpretation of
“ordinary” legislation and “constitutional” interpretation, and section 39 of the 1996 74 South African final
Constitution had reaffirmed it. Section 39 (2) of the said Constitution 75 prescribes the “filtering” of
legislation through the fundamental rights during the “ordinary” interpretation process. The differences
between “constitutional” and “ordinary” interpretation must not be overemphasized. ‘[T]he interpretation
of the Constitution will be directed at ascertaining the foundational values inherent in the Constitution,
whilst the interpretation of the particular legislation will be directed at ascertaining whether that legislation
is capable of an interpretation which conforms to the fundamental values or principles of the Constitution.’
3.4.
Entrenchment
3.4.1. Article 131 of the Namibian Constitution: Entrenchment of Fundamental Rights and Freedoms.
Article 131 provides that the clause that deals with the protection of fundamental rights and freedoms
cannot be changed, even by two-third majority of the members of the National Assembly. These rights
and freedoms enshrined in Chapter 3 of the Namibian Constitution are entrenched, and therefore, any
amendment that would repeal, diminish or detract from them is prohibited. This is a protection, which
limits rulers who might try to change the contents of the Constitution in order to be able to legally carry
out their own dictatorship. Article 25 of the Constitution prohibits any legislative or executive
interference with these rights and reinforces the entrenchment. There is a need for the amendment to the
Constitution for the provision of the enactment of the state of emergency, the reason being that Article 26
of the said constitution had only provide policy guidelines, therefore, the only solution is to enact a law on
state of emergency Act.
3.5. Amendments to the Constitution
The Constitution of Namibia is the ‘supreme law’ of the country, and any law in Namibia should be
consistent with it. Being the ‘supreme law,’ the constitution sets the general tone for how historical and
new issues ought to resolve within the limit of the law. This means that for a constitution to stand, needs
to safeguards and protects the rights of all its citizens, not only where there is stability but also when there
is disagreement and contestations as to the business of the government. The Constitution of Namibia is
regarded as rigid; however, it is also flexible in part. Therefore, to pass legislation on a state of emergency
may not be an issue. The main reason is for the law enforcement agencies to have more clarity about state
of emergency regulations.
3.6.
73
How to amend the Constitution
The Constitution of South Africa, Act 200 of 1993., at p139
The South African final Constitution, Act 108 of 1996.
75
Act 108 of 1996 (RSA).
74
The Parliament of the Republic of Namibia as the law making body has the right and power to make and
unmake laws and rules governing the Namibia people on one hand, while it puts some restrictions on the
other, to the extent to which Parliament can change provisions in the Constitution. Article 132 (2) (a) and
(b) of the Constitution provides that:
‘[t]he majorities required in Parliament for the repeal or amendment of any of the provisions of this
Constitution shall be:
(a) two-third of all the members of the National Assembly; and
(b) two-third of all the members of the National Council.’
Nevertheless, if the Parliament fails to reach the required majority on the question of the amendment or
repeal, the Constitution has provided that the President may, by proclamation, make a bill containing the
proposed repeal or amendment to the subject of a national referendum.
However, this flexibility has been criticized as undermining the Constitution since frustration with its
rigidity could lead to its dismantling. In S v Tcoeib case,76 O’ Linn AJA has referred to the fact that calls
for the introduction of the death penalty, abolished under Article 6 of the Constitution, which is
irrevocable, were so widespread that a referendum on the issue could show a majority in favour of its
introduction. O’ Linn AJA was avoiding taking of person’s life as it was the case in S v Makwanyane 77
where the court had taken into account the principle of “ubuntu”.
The President of the Republic of Namibia has also made a clerical call that Parliament must enact a
referendum Act, so that the Namibian people can express their views or to empower them to make
amendments to Chapter 3 of the Namibian Constitution.78 It will also be possible for the Parliament to
make amendments to the said chapter, and insert an Article on the ‘limitation clause’, and the provision for
the enactment of a ‘state of emergency Act’, to facilitate the work of the executive in carrying their
responsibility properly during the emergency period.
3.7. First amendment to the Constitution
In 1998, the Constitution of Namibia was amended for the first time to provide for the first President of
Namibia to hold office for three terms.79 No other amendment has been made to the Constitution so far.
There is a need for the amendment of the constitution for the Parliament to empower the President to
declare a state of emergency, because Article 26 of the Constitution only provides general
guidelines/policy on the state of emergency. The next chapter deals with the limitations of rights, the rights
that may not be derogated from, and the impact of state of emergency on freedoms of arrested persons and
their rights to fair trial.
Chapter 4
76
1996 (1) SA (NmS) (to be reported in the 1999 Namibia Law Reports)
1995 (3) SA 391 (CC) paragraph 120.
78
The News Journal, on the 7th August 2006, at 19h00, NBC.
79
Article 134 of the Constitution of Namibia.
77
4.
The Limitation of Human Rights during a state of emergency and Rights that may not be derogated
from
4.1.
Introduction
The limitation may be provided for as general provision affecting all human rights entrenched in a
particular constitution or enshrined in an international human rights instrument.80 Such general provisions
of restriction to human rights are found in some national constitutions but not all. Langa J, in the
Constitutional Court of South Africa’s case of State v Henry Williams and Others81 observed that ‘unlike
the Constitution of South Africa, the Namibian Constitution does not have a general limitation clause.’
Article 22: of the Namibian Constitution only specify how limitations on the human rights guaranteed by
the Constitution are to be employed. A derogation clause on the other hand keeps in abeyance or
suspension for a certain period the enjoyment or exercise of rights.
4.2. The Distinction between limitation and derogation of rights.
There is a distinction between limitation and derogation of rights. ‘Limitation’ on human rights is
distinguished from ‘derogation’,82 in the sense that limitation connotes scopes while derogation connotes
temporary obligation. Derogation operates under a definite period in a legally permissible suspension of
human rights, while limitation operates in an indefinite period in a permissible suspension of human rights.
4.3. Limitation of human rights.
A limitation clause is found in the South African constitution, the Namibia Constitution does not have a
limitation clause. As it is stated above, a limitation clause provides the constitutional basis for the
limitation of the rights in the Bills of Rights. The limitation clause has a fourfold purposes.83
Firstly, it functions as a reminder that the rights enshrined in the Bill of Rights are not absolute.84
Secondly, rights may be limited may only be limited where and when the state objective behind the
restriction is designed to reinforce the values which animate the constitutional devise.
Thirdly, the test set out in the limitation clause85, with a bit of judicial amplification, will allow for open
and candid of competing government, private, public and constitutional interests. This means that the
limitation clause provides us with a mechanism for weighing or balancing or competing fundamental
values against one another in society.
80
Collins P, 2002. Human Rights Law, at p169.
Ibid at p170.
82
Ibid. P189. See also Article 29 (2) of the Universal Declaration of Human Rights.
83
Grommica D, 1993. Broadening the Frontiers of Human Rights, Scandinavia, Scandinavian University Press, at
p105.
84
Section 36 of the 1996(RSA) Constitution: “The Limitation Clause.”
85
Section 36 of the South African Constitution, Act 108 of 1996.
81
Fourthly, the limitation clause represents an attempt to solve the problem of judicial review by establishing
a test that determines the extent to which the democratically elected branch of the government may limit
the constitutional guaranteed rights and freedoms and the extent to which an unelected judiciary may
override the general will and “write” the law of the land.86
In Namibia limitation upon fundamental human rights and freedoms are provided for in Article 22 of the
Namibian Constitution.
4.4. Article 22 of the Namibian Constitution:87 Limitation upon Fundamental Rights and Freedoms
Article 22 provides that: “[W]henever or whoever in terms of this constitution the limitation of any
fundamental rights or freedoms contemplated by this Chapter88 is authorized, any law providing for such
limitation shall;
(a)’be of a general application, shall not negate the essential content thereof, and shall not aimed at a
particular individual; and
(b) specify the ascertainable extent of such limitation and identify the Articles hereof, on which authority
to enact such limitation is claimed to rest.”
In Namibia such power was exercised by the President in 1999, by Proclamation 24(11)89 which stated
that, in so far as any provision of these regulations authorizes the taking of any measures which cause any
limitations on fundamental rights and freedoms contemplated in Chapter 3 of the Namibian Constitution90
such provision is enacted on the authority of Article 24(1) and (3) of the said Constitution. The limitation
provision is necessary in order to ensure the meaningful enjoyment of human rights and freedoms, not to
create new sources of power to curtail them.91
Section 36 (1) of the South African Constitution92 states that a limitation of a right must be reasonable and
justifiable in open and democratic society based on human dignity, equality, and freedom. It 93 also
provides that a derogation must be proportional to the emergency, and the regulation made in consequence
of an emergency must be made public, that 94 it might not derogate from the list of non-derogable rights,
that it must comply with the South African’s obligation under international law, and may not indemnify the
state or any person in respect of unlawful acts. The provision guaranteeing human rights are entrenched
and any amendment that would repeal, diminish or detract from them is prohibited.95
Article 21 (1)96 provides for a general restriction on rights and freedoms, except that they (freedoms) must
be exercised “subject to the law of Namibia”.
86
Ibid. Grommia D, supra 1993, at p104.
Act 1 of 1990.
88
Chapter 3 of the Namibian Constitution: The Bill of Rights.
89
Proclamation 24; Emergency Regulations Applicable to the Caprivi Region, under Proclamation 23 of 2nd August
1999.
90
The Namibian Constitution: Act 1 of 1990.
91
Grommica D, 1993 supra at p106.
92
Act 108 of 1996.
93
Ibid.
94
Ibid.
95
Naldi G, 1995. The Constitutional in Namibia supra, p31.
96
Namibian Constitution: Act 1 of 190
87
However, Article 22 provides that whenever the Constitution contemplates a limitation of any fundamental
rights, such as during the sate of emergency, such limitation shall be of a general application and not
directed at any specific individual, but shall have a restricted effect, so that the essential content of right is
not negated and the ascertainable extent of limitation and the lawful authority on which it is based must be
specified.97 Moreover, Article 2598 reinforced this entrenchment by prohibiting any legislative or executive
interference with such rights.
In Ex Parte Attorney-General, Namibia: in re Corporal Punishment by Organs of State case, 99 it was held
that Article 25100 provides the courts discretion in permitting a law that has been found to be inhuman and
unconstitutional to be corrected, during which time it remains valid.
The provision guaranteeing human rights are entrenched and any amendment that would repeal, diminish
or detract from them are prohibited.
Emergency Regulations Applicable to the Caprivi Region101, this heading alone limits the emergency
regulations to the Caprivi Region only, and not any other region is included.
4.5. Derogations of Rights
Derogation constitutes a legally permissible suspension of human rights for a definite period.
[A] rticle 26 (2)102 provides that, a declaration of the state of emergency if so sooner revoked shall cease to
have effect, or a declaration is made when a National Assembly is sitting; or has been summoned to meet
at the expiry of a period of seven days after the publication of the declaration; or at the expiration of a
period of thirty (30) days after publication of the declaration. Article 26(6)103 provides that: “[A]ny
regulations made by the President shall cease to have legal force if they have not been approved by
resolution of the National Assembly within fourteen (14) days from the date when the National Assembly
first sits in session after the commencement of any such regulations.
Suspension of human rights must be justified for a legally allowable abridgement, and therefore may be
justified on that ground.104 A restrictive interpretation is necessary for ensuring that the limitation statute
does not in its effect do away completely with the human rights protected. The United States Supreme
Court noted that the guiding principle of the application of limitation on human rights is that ‘liberty is the
rule and restraint is the exception.105
Even in most constitutional regimes finds it necessary to itself, under the constitution, with special
powers to deal with emergency…the preservation of the state and the society is an imperative
necessity, which should override the need for limited government. Therefore, it is used to mostly deal
97
Kauesa v Minister of Home Affairs, supra.
Ibid.
99
1991(3) Sa 76 (NmS), 78.
100
Namibian Constitution: Act 1 of 1990.
101
Proclamation No. 24 under Proclamation No. 23 of 2nd August 1999, declared by the President of Namibia during
the unease situation in Caprivi Region.
102
Namibian Constitution
103
Ibid.
104
Collins A, 2002. Human Rights Law supra, at p189.
105
Collins P, 2002 supra. P188.
98
with political turmoil because of individual insistence on their human rights, which must militate
against the government’s efforts to contain the situation.106
4.5.
Article 11 of the Namibian Constitution: Arrest and Detention
Article 11 (3) of the Constitution107 provides that all persons who are arrested and detained in custody shall
be brought before the nearest Magistrate or other judicial officer within the period of forty-eight (48) hours
of their arrestor, if this is not reasonably possible, as soon as possible thereafter, and no such persons shall
be detained in custody beyond such period without the authority of a Magistrate or other judicial officer.
The main issue here is that during the 1999 state of emergency, proclamations and regulations made by the
President for the implementation of the emergency has gone beyond the limit of the law. A key provision
of the regulations was that the fundamental right protected by Article 11 (3)108 was suspended, but some
detainees where not arrest in Caprivi region. People arrested outside the area Caprivi could easily lost their
employment, the reason being that their detention and appearance before the competent court was
sometimes indefinite even though it was done under Article 24 of he Constitution. Section 3 (1) of
Proclamation No. 24,109 gives wide discretion to member of the security force to arrest and detain and to
commit such person arrested or detained to prison without any warrant. Sub-section 2 of section 3 of the
said Proclamation,110 provides for the fundamental right protected by Article 11 (3) of the Namibian
Constitution the operation of Section 50 of the Criminal Procedure Act, 1977111, to be suspended.
It was categorically provided in the emergency regulations that the state of emergency existed only within
the region of Caprivi as defined by Proclamation 6 of 3 March 1992. But this did not stop the police to
arrest people outside the Caprivi Region.112 These arbitrary arrests have resulted in court cases by three
Applicants113, who were unlawfully arrested by the security forces. These three applicants approached the
High Court of Namibia, challenging the legality of their arrest and detention under the emergency
regulations.
The question was whether emergency regulations were applicable in areas outside the region of Caprivi,
where the applicants were arrested. The court had looked into the provisions of Article 12 of the Namibian
Constitution on the question of fair trial, and held that the state of emergency was limited to the Caprivi
Region, and not the rest of Namibia. The prolonged arrest and detention of the three were declared
unlawful.114
The effect of this derogation is that a member of the security force could without a warrant of arrest, arrest
any person within the Caprivi region and detain such a person if, in his opinion, it was necessary to do so
for the safety of the public and maintenance of public order. The effect of the proclamations by the
106
Ibid: at p190.
Namibian Constitution: Act 1of 1990.
108
Ibid.
109
Regulations Applicable to Caprivi Region under Proclamation No. 23 of 2nd August 1999.
110
Ibid.
111
Act 51 of 1977. (South African Criminal Procedure Act, of 1977.
112
At areas such as Oshakati and Grootfontein.
113
Albert Sibiya v Minister of Home Affairs, Martin Mutumba v Minister of Home Affairs and Chrispin Mazila v
Minister of Home Affairs, 2000 NR 224 (HC).
114
In S v Mbahapa 1991 (4) NR 274 (HC) where the provisions of Article 11(3) was strictly emphasized by the Court.
(The principle of 48 hours period.)
107
President has given too much discretion and uncontrolled r power to the security force. This leads to the
misuse of power by the security forces. In the sense this discretion includes the authorization of the
preventive or administrative detention of suspect for an indefinite period.
Previously,115 South Africa has introduced a public safety Act,116 and detention without trial was introduced
for the first time. Regulation 4 of the Act117 authorized arrest and indefinite detention if, in the opinion of
the Minister of Justice, a magistrate, or a police commissioned official, is desirable in the interest of the
public or detainee or public safety to do so. The condition of detention is to be determined by the Minister.
118
This regulation has tightened the rules even further and detainees were avoided to consult with their
legal advisor without the consent of the Minister. Detainee could not receive newspapers no magazines, no
books, no toilet requisites, no smoking requisites or food sent by their friends or relatives.119 In Rossouw v
Sachs 120 the issue was whether the detaining authorities could deprive a detainee of reading and writing
materials in addition to shutting him off from the outside world.
In 1963, the Parliament121 had enacted a “90-days Detention Law” of General Law Amendment Act.122 In
terms of this Act a commissioned police official was empowered to arrest and detain without a warrant any
person whom he suspected of committing an offence.123 In 1965, the 90-days law was suspended and a
“180-days law” in terms of section 125bis of the Criminal Procedure Act of 1955 was introduced. Section
125bis authorized detention in solitary confinement. This 180 –day’s law, was directed at persons who
commit treason, sedition, sabotage or terrorism. This previous laws were in line with the system during the
time of apartheid, but now that the new dispensation is in place detention of this kind is unconstitutional.
In 1966, the “Fourteen day Detention Law” of the “anti-terrorist” legislation measures was introduced.
This law empowered the police official of or above the rank of lieutenant colonel to arrest a person for
interrogation for a period of fourteen days.
This has led to the “Rabbie Report” of 1977. The report posts that, in 1977 the death, after 26 days in
detention, of the young Black Consciousness leader, Steven (Steve) Biko, caused an outcry in both South
Africa and in the international community against the wide-ranging nature of South Africa’s detention
without-trial laws, and the virtually unlimited power of the Security Police to detain persons almost at will
and interrogate them in secret.
Secret interrogation is in itself torture in the sense that isolating an individual for interrogation is not
transparent. Interrogation must be done openly even if it is not public. Independent review boards have to
be appointed if people are detained and detainees have the right to ask that their orders be reviewed and set
aside.124
115
Rudolph, R. 1984. Security, Terrorism and Torture: Detainee’s rights in South Africa and Israel – a comparison
study. Cape Town, JUTA & Co, Ltd.
116
Act 3 of 1953.
117
Ibid.
118
A full account of the progress of the emergency appears in1960Annual Survey of South African Law 40-5.
119
Regulation 30, introduced by Pro 167 GGE6452of 17May 1960 and rule 16, 17,18 and 19 of Act 3 of 1953.
120
1964 (2) SA545 (A).
121
South Africa, Act 108 of 1996.
122
Act 37 of 1963.
123
Arrest under Suppression of Communist Act 44 of 1960; or any offence the Unlawful Organization Act 34 of
1960.
124
Diescho J, 1994. The Namibian Constitution in Perspective, at 62.
The issue is that sometimes government or the executive is allowed a “margin of appreciation” in deciding
when the time is ripe, to take the emergency measures.125 The situation calling for a declaration of a state
of public emergency and the taking of measures that derogate from human rights 126 was left to the
discretion of the government of the day.
The “margin of appreciation” was once held in Greece v United Kingdom127 where acts of violation was
aimed to subvert the lawful government of Cyprus and destabilizing the country. In this case the European
Commission enunciated the concept of ‘margin of appreciation’ that: [t]he commission always has the
competence and the duty under Article 15 of the Commission to examine and pronounce upon
government’s determination of existence of a public emergency threatening the life of the nation, therefore
some discretion and some margin of appreciation must be allowed to a government, in determining
whether there exists a public emergency which threatens the life of the nation and which must be dealt
with by exceptional measures derogating from its normal obligations under the convention.
The government does not have a free hand, as it were, even if allowed a ‘margin of appreciation’ to take
any measures it deems necessary or reasonable required in dealing with an emergency.128 This means that
the power of the executive to take all-possible measures necessary during the state of emergency of
maintaining public, national security and public safety must be subject to
wide permissible condition, and that the measures being taken must not be out of proportion to the threatened
danger they are meant to avert, and the danger or the harm must be of an exceptional proportion.
The power of the courts must remains intact. This means that the exercise of discretion and ‘the margin of
appreciation’ allowed to the government must be subject to judicial control. Due to the wide discretion
given to administrative officials by Proclamation No. 23 and No.24, results in the loss of the innocent life
of a medical doctor, Dr Lukas Ilonga, on the 18th August 1999, at Katima Mulilo State Hospital as he was
rushing to attend to a medical emergency.129
The shooting of the doctor has been condemned
internationally and by the Windhoek-based National Society of Human Rights.130
There were also allegations that arrested people had been tortured and beaten. Geoffrey Mwilima, a former
parliamentarian, the highest suspect in the Caprivi secessionist case, claiming compensation of N$ 1, 5
million for being beaten by the security forces, which left his body scarred and a jaw broken.131 The
Council of Churches in Namibia (CCN) has expressed alarm at reports of human rights abuses, killings and
125
Collins A. 2002. Human Rights Law, at
Proclamations 23 under Proclamation 6 of 3 May 1992 and Proclamation 24 under Proclamation 23 of 2 August
1999.
127
Collins A. 2002. Human Rights law at 193.
128
Ibid
129
htt://www.Namibia.com.na./Focus/Caprivi/ilonga.htm;
130
BBC News. World: Africa; http://newsthls.bbc.co.uk/hienglish/world/afrikanewsid%5F423000/423023.stm.
131
The Namibia online, Tuesday, October 29, 2002.
126
attacks on the Namibians in the Caprivi region.132 As a signatory of the International Convention on
Human Rights, the CCN has appealed that the Government should ensure that perpetrators of the abuses
were brought to book, and tragic killing of Dr Ilonga must not be condoned.133
There was also another allegation that some of the detainees were secretly detained in the area of
Windhoek, which was contrary to the provision of Article 11 (3) and Article 10 of the Namibian
Constitution.134
The Council of Churches in Namibia, requested that clear accurate and concise information be furnished to
the people of this country, including the members of the security forces, as to what such a declared state of
emergency entails. This call is one of the most critical questions, which indicates that people really need to
be made aware before the state of emergency is declared. The only way to solve this problem is to enact a
law, which deals with emergency situation. Article 26 of the Namibian Constitution does not elaborate
everything in detail, because it only provides guidelines on state of emergency.
4.6. Non-derogable Rights
The provision guaranteeing human rights are entrenched and any amendment that would repeal, diminish
or detract from them is prohibited.135 Article 22136 provides that whenever the Constitution contemplates a
limitation of any fundamental rights, such as in time of national emergency, such limitation shall be of
general application and not directed at any individual but shall have a restricted effect so that the essential
content of the right is not negated and the ascertainable extent of the limitation and the lawful authority on
which it is based be specified.
The key role that the protection of human rights plays in the Namibia Constitution cannot be overstated.
Article 24 (3) and Article 26 (5) (b)137 provides that the majority of these rights entrenched in Chapter 3138
cannot be derogated from or suspended during the state of emergency, a state of national defence or the
existence of martial law. Article 24 (3)139 proclaims the non-derogative rights such as the right to life,140 the
right to dignity, including the freedom from torture or cruel inhuman or degrading treatment or
132
Crisis in the Caprivi Story Index: - Back Top (c) 1999 The Namibian August 23, 1999- Web posted at 09:23 a.m.
GMT.
133
The Leaders of the Council of Churches in Namibia. Htt:/www.Namibia.com.na/Focus/Caprivi/alarmed.htm,
August 5, 2000.
134
Act 1 of 1990.
135
Naldi G, 1995. The Constitutional in Namibia, at p31.
136
Namibian Constitution.
137
Ibid.
138
Ibid.
139
Ibid.
140
Article 6 of the Namibian Constitution, Act 1 of 1990.
punishment,141 freedom from slavery or forced labour,142 the right to equal treatment and freedom from
discrimination,143 the right to a fair trial and the presumption of innocence, 144 the right to a family,145 the
children’s rights,146 the right to administration of justice,147 the right to culture,148the right to freedom of
speech and expression, of though and conscience, of religion and association149 and the right of access to
lawyers and the courts.150 Although the Constitution has made provisions for inalienable rights and
freedoms this does not prevent the security forces to violates some of this rights and fundamental
freedoms.151
These explicit guarantees that certain rights and freedoms are ‘inalienable’ whatever the prevailing
circumstances constitute an invaluable protection, which is eminently preferable to the derogation of rights
under emergency powers in municipal law.’152 The Banjul Charter had made no provision for derogation
in times of emergency, but it makes extensive use of ‘claw-back’ clauses.
Article 10 (1) of the Charter is such one that states that: ‘[E]very person shall have the right to free
association provided that he abides by the law.’ Therefore, it is an internationally recognized fact that
there are certain human rights, which, due to their very nature and value, are non
derogable. The next chapter will investigate whether Namibia in adjudicating the state of emergency
should adhere to international law obligations.
Chapter 5
5. Namibia’s Obligation under International Law
5.1. Introduction
141
142
143
144
145
146
147
148
149
150
151
152
Ibid. Article 8.
Ibid. Article 9.
Ibid. Article 10.
Ibid. Article 12.
Ibid. Article 14.
Ibid. Article 15.
Ibid. Article 18
Article 19 of the Constitution of Namibia, Act 1 of 1990.
Ibid. Article 21.
Ibid. Article 24.
Geoffrey Muilima’s case above.
Naldi G, 1995. Constitutional Rights in Namibia, at p32.
The relationship between international law and national or municipal law troubles theorists as
manifestations of a single law, and therefore, municipal courts are obliged to apply international law
directly without the need for any Act, or adoption by the courts or transformation by legislation.
However, it is inconceivable that at state committed to compliance with international law, respects human
rights and the promotion of rule of law, under its constitutional order, would tolerate the violation of jus
cogens153, and or neglects its obligation under the erga omnes154. If Namibia is to be respected
internationally, it must upholds and protects basic human rights, its national and international obligations
not to violate human rights during the state of emergency and, or disaster period.
5.2.
Namibian’s International Treaty Obligations.
Namibia’s international obligations are provided for in the Constitution. Article 144 of the Namibian
Constitution, which provides that,’[u]nless otherwise provided by this Constitution or Act of Parliament, the
general rules of public international agreements binding upon Namibia under this Constitution shall form
part of the law of Namibia.’
Namibia’s obligation arises from its ratification of the International Covenant on Civil and Political Rights
(ICCPR). Namibia ratified the Covenant on 28 November 1994. Article 2 of the ICCPR provides that, ‘[e]
ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its
territory and subjects to its jurisdiction the rights recognized in the present Covenant, without distinctive of
any kind, such is race, colour, sex…birth or other status. This means that the courts can control the state of
emergency and can ensure that the Constitutional requirements are met.
153
A peremptory norm from which no derogation is permitted: Also Article 53 of the Vienna Convention on the Law
of Treaties of 1969.
154
The concept ergas omnes obligation was used as a response to ht South West Africa Cases 1966 IJC Report 6 on
the International Court of Justice denied legal standing to Ethiopia and Liberia to enforce an obligation owed the
international community by South Africa to promote to the fullest extent the material and moral well-being of the
people of South West Africa/ Namibia.
The courts jurisdiction cannot be ousted during an emergency period.155 Article 2 (2)156 obliges State Parties
to ensure that;
(a) persons whose rights and freedoms are violated have an effective remedy157:
(ii) such persons have a remedy that their rights be determined by a competent authority;158
(iii) and the competent authority enforce that remedy when granted.159
Article 26 of the Covenant160 provides that: ‘[A]ll persons are equal before the law and are entitled without
any discrimination, and guarantee to all persons equal before the law.’ In this respect the law shall prohibit
any discrimination and guarantee to all persons equal and protection against discrimination on any ground
such as race, colour, and sex…birth or other status. For this reason international human rights law is a
useful source of comparison when interpreting Article 26 of the Namibian Constitution.161
5.3. European Court of Human Rights (ECHR)
According to a decision of the European Court of Human Rights a state of emergency can be justified only
by ‘an exceptional situation of crisis which affects the whole population and constitutes a threat to the
organized life of the community of which the state is composed.162’ The ECHR had to be met before the
derogation section f the European Convention could be invoked: (a) the threat must be actual or imminent;
(b) its effect must involve the whole nation; (c) the continuance of the organized life of the nation must be
threatened; (d) the crises or danger must be exceptional, in that he normal measures or restrictions permitted
by the Convention for the maintenance of public safety, health and order are plainly inadequate. 163
International law outlaws his aggressive use of force in international relations164. The use of force is only
155
A characteristic feature of the apartheid state of emergency was the curtailment of judicial oversight over the
conduct of the emergency. This was achieved by ousting the jurisdiction of the courts to inquire into the validity of the
legislative and executive measures. Administrative discretion couched in subjective terms, so as to limit the power of
the courts to review decisions.
156
ICCPR
157
ICCPR
158
Article 25 of the Namibian Constitution.
159
See also Article 25 of Namibian Constitution.
160
Oraa’ J Human Rights in States of Emergency in International Law (1992).
161
Act 1 of 1990
162
Lawless Case ECHR Series A Vol 3 (1961) para 28.
163
Article 15 (measures derogating from human rights permissible’ in time of war or
other public emergency threatening the life of the nation.)’
164
Greek Case Yearbook X11 of the European Convention on Human Rights (1969) 72.
permissible in self-defence165 or as collective measures authorized by the Security Council of the United
Nations acting under Chapter 7 of the United Nations Charter.
In Republic of South Africa detention without trial, particularly during the state of emergency was one of
the trademark excess of apartheid rule. This matter is now regulated trough the emergency clause. 166
International humanitarian organization167 must have access to detainee in order to monitor the condition
under which they are detained. When a country is involved in an international armed conflict, captured, or
surrended foreign soldiers are held as prisoners of
war, and must be treated in accordance with the standard of international humanitarian law.168
The ‘lengthy period of interrogation could constitute an assault, because security police subjects detainees
to strenuous interrogations169.’ This was familiar to the Greeks and Romans, and that the right to torture has
not been questioned by Christ or His apostles, although Paul had apparently once claimed freedom
scourging under his privilege as a Roman citizen. Torture was a natural method of obtaining evidence by
which criminals convict themselves170.
5.4. The United Nations
Internationally, everyone has the right to liberty and security as a person. No one shall be subject to
arbitrary arrest or detention. No one shall be deprived of his liberty, except on such grounds and in
accordance with such procedures as are established by law.171 Training of law enforcement personnel and of
other officials who may be responsible for persons deprive of their liberty shall ensure that full account is
taken of the prohibition against torture and other cruel, inhuman or degrading treatment or punishment.172
165
Article 2(4) UN Charter; and General Assembly Resolution2625 (XXV) 1970. General Assembly
Resolution
3314 (XX1 X) 1974 on the Definition of Aggression.
166
Section 37 of the South African Constitution: Act 108 of 1996.
167
Geneva Convention of the International Committee of the Red Cross Society.
168
Namibia has experienced this, during the campaign in the Democratic Republic of Congo, when its soldiers we
recapture by the Ruandian Forces in 1998. This is also contained in the 1949 Geneva Convention and the 1977
thereto.
169
S v Modise (Unreported). See ‘Doctor: Lengthy Police Grilling is like an Assault’ The Star 26 August 1980.
170
Johannes Voet, a Roman writer, 1679, Commentaries and Pandectas. (Commentary and Pandects of Justinian).
171
Universal Declaration of Human Rights, adopted by the General Assembly of the United
Nations in 145. See also Article 2 of the United Nation International Convention on Civil and
Political Rights; ‘[A]ll persons deprived of their liberty shall be treated humanly and with
respect for the inherent dignity of the human person.’
172
Article 5 of the UN Declaration on the Protection of All Persons from torture
and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
This prohibition shall also, where appropriate, be included in such general rules or instructions as are issued
in regard to the duties and functions of anyone who may be involved in the custody or treatment of such
persons.
“[N]o law enforcement official may inflict, instigate or tolerate the act of torture or other cruel, inhuman or
degrading treatment or punishment, nor may any law enforcement official invoke superior orders or
exceptional circumstance such as a state of war or a threat of war, a threat to national security, internal
political instability or any other public emergency as justification of torture, or other cruel inhuman
treatment or punishment173.”
5.5.
Africa
‘[E]very individual shall have the right to the respect of the dignity inherent in a human being and to the
recognition of his or her legal status. All forms of exploitation and degrading of man particularly slavery.
Slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited174.’
5.6.
Europe
‘[S]ummary executions, torture or other forms inhuman or degrading treatment or punishment remains
prohibited in all circumstances. Law enforcement officials are under an obligation to disregard or disobey
any order or instruction involving such measures175.’
5.7. Islamic States
‘[N]o person shall be subjected to torture in mind or body, degrading, or threatened with injury either
himself or herself or to anyone related or held dear to him or her forcibly made to confess to the
commission of a crime or forced to consent to an act which is injurious to his interests176.
173
UN General Assembly Code of Conduct for Law Enforcement Officials, 1979.
The African Charter on Human Rights and Peoples Rights 1981. The Charter was unanimously approved by the
Heads of States of the Organization of African Unity at their meetings in Nairobi, July 1981. See also (1981) For the
Rule of Law: The Review: International Commission of Jurists 27.
175
The Parliamentary Assembly of the Council of Europe Resolution Relating to Law Enforcement Officials.
Resolution 690(1979). See Document4212of the Reports of the Legal Affairs Committee.
176
The Universal Islamic Declaration of Human Rights. The Islamic Council of Europe at the International Islamic
Conference held in Paris made the Declaration on 19 September 1981. See (1981) The Muslim World League Journal
174
5.8. Israel
In the case of fair trial the Israel Internal Security Amendment Act 74 of 1982, makes no provisions for the
detainee to be informed of specific allegations against him.177 Although the Internal Security Act allows a
detainee to be legally assisted in the preparation of his or her written representation to the review board,178 it
makes no provision for him or to be given legal assistance during the hearing.
Chapter 6
6. Conclusions and Recommendation
6.1. Conclusion
27.
177
Rudolph H, 1984. Security, Terrorism and Torture, JUTA & CO. Ltd. Article 12 of the Namibian Constitution:
Act 1 of 1990.
178
Barch Braca, ‘Restrictions of Personal Freedoms Without Due Process of the Law According to the Defence
(Emergency) Regulation 1945” (1978) 8 IYHR 295 at 306.
The issues of state of emergency brought by this research have been rarely brought to the fore in Namibia.
The observation of state of emergency in 1999 has arisen the question of the application and limitation of
human rights. Therefore, the task of this research is to suggest the state of emergency in Namibia.
The question is whether the measure taken in terms of the Proclamations and regulations made by the
President during the state of emergency in 1999, do in deed merit the violation of the rights and liberties of
the subjects, according to the maxim “salus republica suprima lex.”
The critical conclusion is that is that the only objectionable measure in this regard which is questionable is
the degrading of human dignity, inhuman treatment and ignoring rules of engagement, and the limits of a
state of emergency exceeded by the exercise of arbitrary state powers.
Churches and human rights instruments have come against the provisions of the state of emergency
regulations in the Caprivi region, although it is accepted that such security regulations is necessary in
maintaining law and order. The most crucial criticism is the wide discretion place in the hands of the
executive, or government organs and the fact that the concept of state of national defence, state of
emergency and martial law is not clearly circumscribed.
The normal revisionary procedures of the courts must be followed and that the state of emergency Act be
introduced, to limit the possible violation of human rights and liberties. All method of obtaining information
from detainees must have juridical limits. A code of conduct of security forces involved must be adhered to.
The Proclamations and regulations to be employed must not provide arbitrary or uncontrolled powers to
overstep norms of legal idea. Even, if it is in deed the function of the state to maintain law and order and to
stabilize the peaceful co-existence of the community, the subjects’ rights must not be over-emphasized.
The 1999 state of emergency regulations in Namibia has in many ways deviated from the acceptable
standards of an enlightened system of the law. Banning orders, restriction orders and detention decrees are
fundamentally the function of the judicial authority and should therefore not be entrusted to the executive
authority. There is a need that at least some of the controlling measures during the state of emergency be
controlled, and the exercise of absolute and uncontrolled powers of the executive can be counteracted. This
can only be solved if the state of emergency legislation is introduced. Human rights must be strictly
entrenched in such a way that the arbitrary detraction can be annihilated.
The plea for the introduction of the state of emergency Act into the Namibian laws is needed; to ensure the
establishment of a true material law regarding actions during the constitutional state of emergency is
enforced.
The key concept here is controlled government authority instead of arbitrary government authority. It is not
denied that human rights can be restricted during the existence of the state of emergency, or that
government authority can be absolute or be exercised without control. Therefore, the best manner of control
to ensure the existence of a true state of emergency law is when the courts of law can control government
during the emergency period, by determining whether the violations of human rights are necessary.
This is vital important because the absolute violation of human rights than necessary in the light of the
prevailing circumstances cannot be tolerated.
Finally, it is obvious that Article 26 of the Namibian Constitution is only a first step in the right direction of
providing directives and guidelines. Therefore, there is a need to encourage more research in this area.
6.2 Recommendation
The alleged beating of Geoffrey Mwilima and the killing of Dr Lukas Iilonga during the 1999 state of
emergency have alarmed the people of Namibia including international community. One cannot understand
as to where the problem lies, because the regulations did not provide such treatment. I, therefore,
recommend that legislators and or the government to enact separate legislation to create the state of
emergency Act. It will help eliminating inconvenience and or unlawful actions by the security forces.
7. Bibliography
Bukurura, S.H., 2002. Essay on Constitutionalism and the Administration of Justice in Namibia,
1990-2002, Windhoek, Out of Africa Publishers.
Collins P, 2002. Human Rights Law, Leicestershire, Upfront Publishing.
Currie I. and De Waal, J., 2005 (reprint). The Bill of Rights Handbook, (5th ed.), Cape Town,
JUTA & CO. Ltd.
Diescho J, 1994. Namibian Constitution in Perspective, Windhoek, Gamsberg Publishers.
Du Plessis et al, 1994. Understanding South African Traditional Bill of rights, Cape Town, JUTA
& CO Ltd.
Gromica D, 1993. Broadening the Frontiers of Human Rights, Scandinavia, and Scandinavian
University Press.
Jayawickrama N, 2002. The Judicial Application of Human Rights Law, United Kingdom,
Cambridge University Press.
Javid R, 2003. International Human Rights Law: Significant Principal Emergent From the ECHR,
England, Pearson Education Limited.
Kruger J. and Brian, C., 1994. Interpreting a Bill of Rights, Cape Town, JUTA & CO. Ltd.
Rudolph H, 1984. Security, Terrorism and Torture: Detainee’s right in South Africa and
Israel- A Comparison Study: Cape Town, JUTA & CO. Ltd.