Our Best Shield 24 Years On [opinion]

THE EXPRESSION “the rule of law” is generally credited to the late Vinerian Professor of English law at Oxford, Professor AV Dicey. In his text, “An introduction to the Study of the law of the Constitution”, Dicey gave three meanings to the rule of law.

More pertinently, however, Dicey argued that a constitution is pervaded by the rule of law on the grounds that the general principles of the constitution are with us the result of judicial decisions determining the rights of private persons in particular cases, brought before the courts. He likened the rule of law to the predominance of the legal spirit.

The editor of The Namibian newspaper, Tangeni Amupadhi, in the op-ed pages some few weeks ago argued for the preponderance and preservation of the rule of law. However, when I saw the editorial being bandied on national television almost as if it was a canard, my interest was further piqued. I went back to read the op-ed pages again, but all I observed was an eloquent and magisterially penned editorial in defense of the Namibian Constitution. I found nothing enfeebling the Namibian state in the editorial. It was a reminder of the foundational values of the Namibian Constitution, amongst others, that Namibia is a secular state.

Namibia has since 1990 become a signatory to many international legal instruments of high standing. The Universal Declaration of Human Rights of 1948, is embedded in our Constitution. The Namibian Constitution is imbued with references to the rule of law. The drafters of the Namibian Constitution, when declaring the values on which the Constitution is founded, list the supremacy of the Constitution and the rule of law.

When the Constituent Assembly under the chairmanship of Prime Minister Hage Geingob, an ardent constitutionalist, adopted the Constitution, implicit in that was that Namibia is henceforth a law-governed state, akin to what is known as a Rechtsstaat in Germany or the “Etat de droit” in France.

More plainly, the preamble to the Constitution provides that Namibia is a secular state. Chapter 1, article 1 reads: “The Republic of Namibia is hereby established as a sovereign, secular, democratic state founded upon the principles of democracy, the rule of law and justice for all.” The Constitution itself repeats, for emphasis, that the Republic of Namibia is a “secular state”. It is what we signed up for in 1990.

There is no denying that gender-based violence and other types of crimes have reached endemic proportions. We have become prisoners in our own homes. There has been various calls made (including a return to the death penalty) in order to ostensibly arrest the rise in these sorts of crimes, in particular gender-based violence. The founding father called for men who kill women to be “buried alive.” Perhaps, displaying in that a sense of pragmatism, to wit action must be taken.

In part, the president of the republic, called on the nation to embrace and turn to prayer, a theme which dominated for the past few weeks. Almost everyone I know was praying with many being marshalled to the Sam Nujoma stadium in Katutura for mass prayer. The caveat being that religion and morality are different things. The two cores presented stark opposites. Moreover, they are conceptually not constitutionalist positions.

The views propounded by the Minister of Labour and Social Welfare, Doreen Sioka, some days after the president’s prayer day appeared more seductive. For, other than identifying many of the causes, Sioka aised the recipients of bursaries from the Social Security Commission to essentially value education and pursue education as a pathway to a better life. This was sobering, for it was Plato who argued that education create moderate men. In that sense men or women who are prone to reason.

There is nothing wrong with prayer at home or at church and so forth. After all, this has equal protection in the Namibian Constitution. The exception being that it is not the space of a responsible government in a republic to articulate religious fervour.

I invoke here, David Friedrich Strauss’s epoch-making study “Das Leben Jesu kritisch bearbeitet” (The life of Jesus critically examined). Now, before Strauss the assumption had been that the gospel possessed a factual basis. What is more, primitive man ascribed to supernatural forces the natural phenomena he did not understand. Namibia is not the State of Prussia where at some point the king had declared it to be a Christian state.

The reiteration being that Namibia is a rational state, the bedrock of which is the law. The hallmarks of regimes which flouts the rule of law are, alas, too ghastly to contemplate – the midnight knock at the door, the Sobukwe clause, the sudden disappearance of men and women. The list has no end. John Locke captured it more elegantly in 1690 when he said that “wherever law ends, tyranny begins.”

Our best shield 24 years after independence, is one of the best crafted constitutions in the world, the Namibian Constitution and we therefore must remain faithful to it.

*Unanisa Alfonso Hengari is a member of the Johannesburg Bar and the Society of Aocates of Namibia. He holds B Iuris and LLB degrees (UWC) and has completed a Masters of Laws at the University of the Witwatersrand.

Source : The Namibian