‘Native’? Sorry, No Dried Peas

DRIED peas, sexually transmitted diseases, stray donkeys, obscene songs and Sundays are some of the topics included in a range of outdated laws that the Law Reform and Development Commission has recommended should be removed from Namibia’s law books.

The commission has recommended that 54 laws that remain in force in Namibia despite being outdated and unnecessary – and in some cases also racist, unconstitutional and illogical – should be repealed by parliament.

A report in which the outdated laws are listed and summarised and it is aised that they should be taken off the country’s law books, has been presented to the Minister of Justice, Utoni Nujoma, for further action to be taken.

The removal of obsolete laws from the statute books of Namibia is one of the tasks assigned to the Law Reform and Development Commission (LRDC), its chairperson, Sacky Shanghala, says in the foreword of the report. One would have thought that such a task would have been a top priority for the LRDC, but this has not been the case – and he now knows the reasons for that, Shanghala says.

One reason is that it has simply been difficult to figure out which legislation was operating in Namibia and to find the text of legislation “time frozen in the era that they were applicable”, without subsequent amendments that applied to South Africa and not Namibia as well, he indicates.

And when the LRDC’s team of researchers actually managed to find the laws they were looking for, one law led to another, “like peeling an onion, layer after layer it rewards you with more work from the dusty library books”.

The LRDC’s research into obsolete laws still in force in Namibia is not a completed task, Shanghala says: “Unfortunately, as the onion kept peeling, we found more andmore old laws to repeal and or look into.” As a result, the LRDC would probably have to repeat the same exercise one or two more times, he says.

In the meantime, “the Namibian statute books are in a state of disarray”, it is stated in the report. “There exists much confusion as to whether a particular statute does or does not find application in Namibia.”

ILLEGAL PEAS

One of the first obsolete laws discussed in the report is also one of the strangest. It dates from 1957, when the National Party was in power in South Africa and by extension also in Namibia, and when the apartheid system was being implemented in minute detail.

Racial discrimination and separation were so pervasive during that era that not even the humble pea could escape the attention of the apartheid ideologues who made the laws for Namibia. The result of this was the Dried Peas Control Ordinance of 1957, which prohibits the sale, delivery, supply or giving of dried peas to any ‘native’.

The Dried Peas Control Ordinance also decrees that no ‘native’ – which under apartheid was defined as people from the black indigenous population groups – is allowed to have dried peas in his or her possession, unless it was for proper therapeutic purposes upon a prescription by a qualified medical doctor, for the purpose of delivering the peas to ‘Europeans’ under a permit issued by a magistrate, or for vegetable gardening or agricultural purposes permitted in writing by a magistrate.

Any ‘native’ who received or possessed dried peas contrary to the ordinance would be guilty of an offence and could be fined up to 100 pounds or sent to prison for up to 6 months.

“Even though the Ordinance is technically still operative, it has no application whatsoever in our current dispensation,” it is stated in the LRDC’s report.

APARTHEID LAWS

The pervasive apartheid system was built step by step through numerous laws that were passed as the National Party tightened its grip on political power during the 1950s and 1960s. Some of those racially offensive laws still remain in force in Namibia and should be done away with, the LRDC recommends.

One of those laws is the Native Affairs Act of 1959, through which Native Councils and a Native Commission were created to administer what was termed ‘native affairs’. The Native Affairs Act is discriminatory and should be repealed, the LRDC says.

Another of those laws is the Development of Self-Government for Native Nations in South West Africa Act of 1968. That law was designed as a tool to implement the grand apartheid plan of dividing Namibia into nearly a dozen separate ethnic homelands, with each governed by its own legislative council.

In Namibia’s contemporary constitutional set-up there is no room for ‘native nations’, given that the Constitution established Namibia as a unitary state which is not divided along ethnic, racial or tribal lines, it is stated in the LRDC’s report.

Other laws that were meant to establish separate ethnic authorities and homelands in Namibia also still remain on the country’s statute books and should likewise be repealed, it is recommended. These laws include the Ovamboland Affairs Proclamation of 1929, which was intended to set aside the former Ovamboland as a reserve for the sole use and occupation of ‘natives’, the Caprivi Zipfel Affairs Proclamation of 1930, the Okavango Native Territory Affairs Proclamation of 1937, the Reservation of State Land for Natives Ordinance of 1967, and the Namaland Consolidation and Administration Act of 1972.

STDs, SUNDAYS

Namibia’s previous rulers were not only obsessed with racial matters, though. They also appear to have been sticklers for discipline and order, but some of the laws they left behind in that regard have also outlived their usefulness.

One of these is the Venereal Diseases Prevention Proclamation of 1919, which makes it the duty of medical doctors who know of someone who is infected with a sexually transmitted disease to inform a military magistrate, who in turn was authorised to order people infected with STDs to obtain medical treatment.

The Constitution guarantees everybody’s right to privacy, it is pointed out in the report, which states: “Today, no individual is obliged to disclose hisher status in relation to venereal diseases. Receiving treatment is considered an individual choice.”

Another law that the LRDC recommends should be repealed is the Trespass of Donkeys Proclamation of 1941, which authorises the owner of land on which an unmarked donkey has been trespassing for more than two weeks to treat the donkey as his own property. A section of the Animal Health Act of 2011 sufficiently deals with the issue of stray animals, it is said in the report.

The Sunday Trading Proclamation of 1919, which limits business hours on Sundays, and the Lord’s Day Observance Proclamation of 1921 should also be repealed, the LRDC says.

The 1921 proclamation makes it an offence – punishable by up to six months’ imprisonment or a fine of up to 50 pounds – to gamble or have races on Sundays. It also makes it an offence to have any “place of public amusement or entertainment” open on a Sunday for any performance or exhibition – unless the Administrator has given permission for such entertainment and “only in case it shall in no respect be of an indecent character or calculated to bring ridicule, contempt or disrespect upon religion or morality”.

The Public Offences Proclamation of 1920, which the LRDC says should also be repealed, provides evidence of the former rulers of Namibia’s dislike of disorderly or rude behaviour.

It makes it an offence to sing “any obscene song or ballad”, or to write or draw or show “any indecent or obscene word, figure, or representation in any public street or place”, to unnecessarily clap wagon whips in any public place or street, to swear or use obscene, abusive, insulting or threatening language in any street or public place, and to allow “any night-soil or other offensive matter” to be spilt or thrown on any road or public place.

“Wantonly or mischievously ringing any public bell” is also not allowed, and neither is “furiously driving any vehicle, horse, or cattle” or “furiously riding any animal” in any street.

All of these offences can be punished with up to 30 days in prison or a fine of two pounds.

The obsolete laws identified by the LRDC are anachronistic and ill-suited to a constitutional democracy based on the rule of law, but since they have not been repealed they remain legally in force in Namibia, the report says. The reason for that is that the Constitution specifically states that all laws that were in force immediately before the date of Namibia’s independence remain in force until they have been repealed or changed by parliament or declared unconstitutional by a competent court.

Source : The Namibian