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state v acheson revisited

state v acheson revisited

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Published by André Le Roux
Constitutional La and criminal Law

Criminal and Constitutional Law required reading
Constitutional La and criminal Law

Criminal and Constitutional Law required reading

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Published by: André Le Roux on Jun 16, 2009
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10/04/2013

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THE STATE VERSUS ACHESON REVISITED FOURTEEN YEARS LATER1
Dr. Nico Horn
1.
INTRODUCTION

The first government of the Republic of Namibia (1990 \u20131994) was possibly the most successful in post-colonial Africa. The transition from colonial rule2 was the most peaceful transition then known in Africa and the Constitution the most liberal.3

I use the term liberal era in this paper to describe the term of the first government of the Republic of Namibia (1990 \u2013 1994).4 This period was marked by a government taking ownership of the Constitution. The Constitution was the cornerstone of the new dispensation, a document by the people, for the people. The euphoria of independence and power was still high and the Constitution was seen as a victory over apartheid and its vicious oppressive structures.

The government and the people were proud of the Constitution, although they sometimes complained that is not always interpreted the way the majority wanted. Criticism was directed against the judges and the composition of the Bench was criticized, but not the Constitution. The Namibian leaders were intensely happy to be part of the international community. The Constitution was seen as the instrument that can be used to overcome racism and other forms of colonial inequalities.

The lack of black faces on the Bench was initially a bone of contention and was perceived as a reason for the conflict between the government and the judiciary.5 The ongoing insistence that the Bench must be sensitive to the will of the people, has often been raised when decisions went against government or when so-called enemies of the government got the best of a judgment:

Shortly after independence a few unorganized white right wingers were arrested while planning a coup d\u2019etat. They were badly organized and they had no sustainable structures, no support in society and hardly any weapons.

1 This article was written to coincide with the Second Anton Lubowski Memorial Lecture
presented by the Human Rights and Documentation Centre at the University of Namibia, 19
November 2003. It is dedicated to the memory of the late Anton Lubowski.
2 I use the term colonial rule in the broad sense of the word. Technically colonial rule ended in

1918 when Namibia became a South African mandate of the League of Nations. However, since South Africa soon exceeded the bounds of the mandate, Namibians saw South African occupation, especially after World War II, as an extension of colonial rule.

3 The South African Constitution is often heralded as \u201cthe best in Africa\u201d. It must, however be
remembered that Namibia prepared the way for the South African transition in many ways, not
least in having a constitutional example when Codesa II needed one.
4 I have elaborated more on the different periods of constitutional development in a as yet
unpublished paper read as guest lecturer at the Institute for Social Studies in The Hague,
January 2003. The Development in Constitutional Interpretation in Independent
Namibia.
5 This was, however, not only a problem for the government or lay interpreters of the

Constitution. See Steytler, N., The Judicialization of Namibian Politics, 1993, South African Journal for Human Rights, p. 477 ff., for a critical analysis of the constitutional compilation of the Judicial Service Commission, the Bench, and eventually its effect on society.

1
Consequently, although the accused were convicted, the sentences were
lenient.6

The SWAPO Party and other loyalists were \u201cshocked\u201d by the moderate sentence given to white conspirators against the government. Although the interpreters could possibly use several social or political elements as sources for deconstructing this judgment, the political interpreters chose the race card. It did not matter that Judge O\u2019 Linn was appointed in the transitional period with the approval of the SWAPO Party, that he had a history of defending Plan fighters and SWAPO sympathizers, etc.

While he was one of thecommunists andliberals7 of the apartheid regime, he was never a member of the SWAPO Party.8 And his history added the necessary spice to make ethnic deconstruction work: he was a police officer in South African before entering the legal profession!

But there is also the emotional element. While Judge O\u2019 Linn was a progressive politician and a human rights lawyer who fearlessly defended SWAPO members and PLAN fighters, he was still part of the old political order.9[9] He did not share the distrust of former political exiles and dissidents in all the structures of the old order.

On the other hand, the non-resident judges of the Supreme Court were much more critical of political powers of the old apartheid society. The critical approach of the non-residential Supreme Court towards the police \u2013 which still include traditional SWAPO enemies like the security police, Koevoet and former South African Police Force members \u2013 was more in line with SWAPO thinking.

However, the resistance against the Courts, and especially against Judge O\u2019 Linn, was the exception. And while Judge O\u2019 Linn called it a constitutional crisis,10 it did not lead to total disillusionment amongst the people or the government. During this period the Constitution reigned supreme. International academics accepted that Namibia was a constitutional

6 S v Kleynhans and Others, unreported case of the High Court of Namibia, sentence
delivered on 19 September 1991, coram, Justice O\u2019Linn.
7 While it is unthinkable to use the words communist and liberal interchangeable in ideological

terms, for the apartheid regime and its ideologists, it was two sides of the same coin. Depending on the mood, an opponent could on day one be a communist and the next a liberal.

8 See Judge O\u2019 Lin\u2019s comments in State versus Heita and Another 1992 (3) SA 785 NM on
786:

Two years ago some people called for my dismissal on the grounds of alleged sympathy with SWAPO. Now a SWAPO-leader and SWAPO- supporters ask for my dismissal, inter alia, on the ground of an alleged colonialist and anti-black mentality. According to them I have become irrelevant to black thinking in Namibia and I should not be on the High Court Bench at all.

9 Judge O\u2019 Linn lead a progressive internal political party in pre-independent Namibia that
campaigned for the implementation of Resolution 435, the return of SWAPO to Namibia and
the withdrawal of South African troops from Namibian Territory.
10See State versus Heita and Another, p. 786.
2

democracy11 and South African constitutionalists applauded the founding fathers and Namibian courts for laying a good foundation to be followed by a future democratic South Africa.

2
THE NAMIBIAN COURTS AFTER INDEPENDENCE: STATE versus
ACHESON12

The courts almost immediately established themselves in the new constitutional dispensation. The early judgments caught the attention of the international community. In Southern Africa it was praised as forerunners of constitutional interpretation in Southern Africa.

Initially the new spirit was clearly demonstrated in the criminal courts. In the well-known case of S v Acheson13 the High Court refused a postponement for the State in the highly emotional case against the alleged murder of SWAPO activist, Anton Lubowski, just before independence.

Acheson, an Irish citizen, was suspected to have killed Lubowski or assisted the South African covert Civil Co-operation Bureau (CCB) to do so. The State attempted in vain to get the CCB accessories in Namibia for trial and the acting Prosecutor-General, Hans Heyman, did not want to go to trial without CCB members Staal Burger and Chappie Mare in the dock with Acheson.14

Anton Lubowski was born in 1952, the son of Wilfred and Molly Lubowski. He initially grew up in Luderitz. When he reached high school, his parents sent him to Paul Roos Gymnasium in Stellenbosch, named after the first Springbok rugby captain, the most prestigious high school in the Western Cape.15

After school he went to Stellenbosch where he received his first degree. However, at that stage, while he was not really politically involved, the Afrikaner nationalism on Stellenbosch became too much for him and he moved to the University of Cape Town, where he completed his LLB.

Anton Lubowski was a leader from the outset. Apart from being a student leader in school and at university, he also became a commissioned officer in the South African Defence Force during his year as a conscript in 1971. When he joined SWAPO in 1984, he was dishonourably discharged and his commission taken away from him.16

Anton Lubowski returned to Namibia after his studies in 1978. He was a lawyer for a short time before he joined the bar. He soon became involved in political cases against SWAPO insurgents and local internal SWAPO leaders. He also became involved in labour disputes. He became extremely

11[ See Naldi, GJ, 1995. Constitutional Rights in Namibia, Juta, Johannesburg,

121991 (2) SA p. 805 (Nm)
13ibid.
14 ibid., p. 813
15 See Lubowski M. and Van der Vyfer, M., Anton Lubowski. Paradox of a Man, Queillerie,

Strand, undated, pp. 26 and 34.
16ib id., p 37
3

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