Retracing the Footsteps of a Liberation Struggle Icon – “Where Others Wavered, the Autobiography of Sam Nujoma” [column]

The Constituent Assembly duly met in the old debating chamber of the Tintenpalast (Palace of Ink), the government buildings built by the German colonialists. One of our first actions was the proposal by Theo-Ben Gurirab that the Assembly adopt the 1982 Constitutional Principles as a framework for the Constitution, and so we agreed without argument that Namibia would be a multi-party democracy with an independent judiciary and a g Bill of Rights which would protect civil liberties and oppose “arbitrary expropriation of private property without justification”.

A Standing Committee, chaired by Comrade Hage Geingob and consisting of eleven SWAPO members and nine from other parties, was appointed to draft the rules of procedure, which was done, despite difficulties with the DTA, by the end of November 1989.

A number of procedural issues had already been resolved by the various parties through consultation, and published in the Constituent Assembly Proclamation of 6 November 1989, just before the elections. This proclamation dealt with preliminary issues such as the date of coming into force of the Constitution, the adoption of certain rules for the conduct of the Constituent Assembly meetings, and provisions to prevent defection by members of one party to another.

This proclamation also stipulated that the task of the Constituent Assembly was to draw up the Constitution of Namibia, to adopt the Constitution by a two-thirds majority, and to fix a date for the independence of Namibia. After the 1989 Constituent Assembly elections supervised and controlled by the United Nations, the Constituent Assembly duly met on 21 November 1989.

At its first meeting, the Constituent Assembly elected Comrade Geingob as Chairman. His task was not only to conduct the meetings but also to build confidence between diverse parties. He carried out both the tasks remarkably well. The first order of business for the Assembly was to constitute a Drafting Committee. SWAPO as the Majority party nominated 12 members to this committee DTA four members NNF, FCN, NPF, ACN and UDF one member each.

Of course, before and during the elections, certain perceptions had been created that SWAPO was a socialist organization and was not committed to such ideals as democracy, right to property, etc. Therefore, when Comrade Gurirab moved that the Constituent Assembly adopt the Contact Group’s 1982 Constitutional Principles, it came as a complete surprise to non-SWAPO members of the committee.

Before the process started, each party had prepared its own draft Constitution. The committee was to consider provisions of each draft on specific topics, and come up with a final version for inclusion in the Constitution. However, at that time, a very healthy development took place when, to the surprise of everyone, DTA chairman Dirk Mudge proposed that SWAPO’s draft should be accepted as the basis for drafting the Constitution.

The SWAPO draft had, of course, included provisions such as the protection of basic human rights, and commitment to democracy. All these provisions further facilitated the work of the committee.

Procedurally, the drafters first identified the areas they agreed upon, and set those aside. At the end of this exercise, we were left with those topics where there were material differences between the various parties. Specifically, three major differences had emerged: the type of executive, the type of legislature, and the type of electoral system.

On the question of the type of executive, SWAPO was committed to a g executive and a unitary system of government, while others preferred to have a loose federal system with a weak central government. As Comrade Geingob put it, they preferred a federal system because they were used to apartheid divisions, but SWAPO wanted a g, unitary central government to counter the damage done by apartheid. A federal system, we felt, would have only perpetuated the economically non-viable, divisive Bantustans. SWAPO sought unity in diversity, but others sought to perpetuate bantustanisation of the country.

Given the political principles of SWAPO, it stood its ground in demanding a g executive. However, in order to break the impasse and to avoid delaying independence, it was decided that negotiations should take place on the issue, in the spirit of ‘give and take’.

On the powers of the executive, after long discussions, we agreed that there should be ‘checks and balances’ on the powers of the President, that executive power be shared between the President and the Cabinet consisting of the Prime Minister and 16 Ministers, and that the President could be elected for two five-year terms. We also included in the Constitution a provision that the President would chair the Cabinet, and would address the parliament at the start of the budget session. In order to enhance transparency and accountability, the Constitution also stipulated that the President would answer questions posed to him after his address.

On the question of legislature, again, SWAPO and other parties were driven by very different principles. Given the small population of the country, SWAPO wanted a unicameral legislature elected on the basis of proportional representation, but others wanted a bicameral parliament. Their thinking was that SWAPO might win the popular vote throughout the country under proportional representation but would not be able to win elections in and control all the regions, and therefore the second legislature was required. Their perception was that the north would be just one constituency or one region, and in their calculations, SWAPO would win in the north, leaving the rest of the regions voting according to their tribal allegiance. Their perception was, however, flawed as it was based on the fact that constituencies would be created according to the size of the population in a given area, and not along the old Bantustan lines of tribes as created by South African apartheid policy.

Further, their thinking that SWAPO would win only in the north was also to be proved wrong when regional council elections took place in the thirteen regions. These were the issues that prompted non-SWAPO members of the Constituent Assembly to push for a bicameral legislature. As a compromise, SWAPO accepted the concept of a second house as the ‘house of regions’. Each one of the 13 regions – Ohanguena, Caprivi, Oshana, Omusati, Oshikoto, Kunene, Kavango and Otjozondjupa in the north Erongo, Omaheke and Khomas in the central region Hardap and Karas in the south – would elect two regional councillors as representatives in the National Council, the ‘house of review’. It was also agreed that Namibia would have a three-tier government, constituted in the central government, regional governments, and local authorities.

On the third question of what type of electoral system Namibia should adopt, after a long debate it was agreed that proportional representation would be used for the election of the National Assembly, and a ‘first past the post’ system would be used for the election of regional councillors.

With these three contentious issues out of the way, the members of the Drafting Committee turned their attention to drafting proper of the Constitution. It goes to their credit that they pulled off this difficult task in just 80 days. At least one author has dubbed this effort an “80 day miracle”. The final document, the Constitution of Namibia, was adopted on 9 February 1990. It would come into force on the day of the country’s independence.

Further, the Constituent Assembly designated 21 March 1990 as the day on which Namibia would become independent. This day, which is also United Nations Day, was chosen to emphasize international linkages of the people of Namibia during their long years of struggle.

Finally, the Constituent Assembly decided that its members would become the first National Assembly, and would put in place transition mechanisms, and mechanisms for the election of the first President by the National Assembly. The National Council was, however, to come later.

The Constitution of Namibia is, in many ways a unique document.

The oppressed, the disenfranchised who at last won their struggle for freedom, argued for the enshrining of the fundamental human rights in the Constitution. These rights cannot be diluted. Further, ours is perhaps the only Constitution that commits the government to environmental protection. We are proud that our Constitution has been applauded all over the world by scholars and politicians alike, and we are proud that during the first ten years of independence Namibia has lived up to the letter of this supreme law.

Source : New Era