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Published by André Le Roux
Constitutional Law and criminal Law

Criminal and Constitutional Law required reading
Constitutional Law and criminal Law

Criminal and Constitutional Law required reading

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Categories:Types, Research, Law
Published by: André Le Roux on Jun 16, 2009
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1993 SAJHR p477

Nico Steytler *
Torbjorn Vallinder * defines the judicialization of politics as

'1. the expansion of the province of the courts or the judges at the expense of the politicians and/or administrators, ie the transfer of decision-making rights from the legislature, the cabinet or the civil service to the courts or, at least, 2. the spread of judicial decision-making methods outside the judicial province proper.'

The first meaning refers to the expansion of the courts' power at the expense of the other two branches of government. The prime example of this process is the judicial review of legislation and executive acts. This form of judicialization is also called 'judicialization from without' * as it entails the imposition of judicial decisions on the legislature and the administration. The second form of judicialization, termed 'judicialization from within', * entails the introduction or increased use of judicial staff or judicial decision-making methods in making policy decisions in the state administration. *

The Namibian constitution of 1990 is a good example of how provision is made for the judicialization of politics from without and from within. Through judicial review and the method of appointment of judges, the power of the judiciary and the legal profession has been increased at the expense of the legislature and the executive. Moreover, the ombudsman, overseeing the administration, may introduce judicial decision-making methods to the civil service.

It will be argued that the judicialization of Namibian politics was one of the key devices for protecting minority interests, thereby facilitating Namibian independence under majority rule. Central to this device stands the justiciable bill of rights and the judges who will interpret it. It will be further argued that the unprecedented levels to which minority

1993 SAJHR p478

parties sought to judicialize politics, may in the end undermine the potency of this device. The absolute entrenchment of judicial review and the built-in institutional distance between the courts and the legislature and the executive, may lead to the breakdown of the constitutional order on which minority protection depends. The judicialization of politics was part of the political compromises that were made in order to effect independence, majority rule and national reconciliation.' * In this process the international community played a crucial role through the adoption in 1982 by the Security Council of the Principles Concerning the Constituent Assembly and the Constitution.


In 1978 the Security Council adopted Resolution 435, brokered by the five Western nations then in the Security Council (United Kingdom, United States, France, Canada, and West Germany - collectively known as the Contact Group). The Resolution entailed a detailed plan for the achievement of independence and was accepted by South Africa. It included the holding of free elections under United Nations supervision for a constituent assembly to draft a constitution. The Resolution was not implemented initially because South Africa, backed by the United States, insisted on linking Namibian independence with the withdrawal of Cuban troops from Angola. This issue was to delay the implementation of Resolution 435 for the next ten years.

In order to implement Resolution 435, the Contact Group sought to allay the fears of the internal parties. * An all-party conference for pre-implementation talks was organized in 1981 under the auspices of the United Nations where the internal parties could meet SWAPO. The conference failed to produce any results because it became apparent that the South African government and the internal parties would seek independence not through the United Nations, but unilaterally.

To implement Resolution 435 the Contact Group sought to give assurances to the internal parties about the future because the latter sensed that the implementation of Resolution 435 would reduce them to 'minority' parties. Within the context of the Cold War there were also deep-seated fears about SWAPO which was backed by the Soviet Union and its surrogate, Cuba. The perception was that 'there [were] few in the upper echelons of SWAPO with a taste for liberal, multi-party democracy

1993 SAJHR p479
and acceptance of externally defined normative restraint on freedom of executive
action.' *

The first attempt was the United States' proposal to draft a complete constitution before the first election. This plan was rejected out of hand by SWAPO. The next attempt was to formulate a set of principles which would guide both the procedure of drafting a constitution and its contents. This was achieved by the Principles Concerning the Constituent Assembly and the Constitution of 1982, contained in a letter from the Contact Group to the Security Council and which were eventually circulated as a document of the Security Council. * The Principles were accepted by both the South Africa government and SWAPO.

The Constitutional Principles provided that a constituent assembly should be elected by means of free and fair elections in terms of proportional representation. Such an assembly then had to adopt a constitution by a two thirds majority. The constitution, in turn, had to comply with a number of principles including the following:

'1. . .

2. The Constitution will be the supreme law of the state. It may be amended only by a designated process involving the legislature and/or votes cast in a popular referendum.

3. The Constitution will determine the organization and powers of all levels of government. It will provide for a system of government with three branches: an elected executive branch which will be responsible to the legislative branch; a legislative branch to be elected by universal and equal suffrage which will be responsible for the passage of all laws; and an independent judicial branch which will be responsible for the interpretation of the Constitution and for ensuring its supremacy and the authority of the law.

4. . .
5. There will be a declaration of fundamental rights. . . Aggrieved individuals
will be entitled to have the courts adjudicate and enforce these rights.
6. . .

7. Provision will be made for the balanced structuring of the public service, the police service and the defence services and for equal access by all to recruitment to these services. The fair administration of personnel policy in relation to these services will be assured by appropriate independent bodies.'

The objective of the Constitutional Principles was to place limits on majoritarian rule; the legislature and the executive would be subject to judicial review. Thus, the increase in powers of the courts at the expense of the legislature and the executive became 'part and parcel of the overall peace plan'. * For this very reason the Constitutional Principles have been criticized. Richardson comments that the Principles were 'more a

1993 SAJHR p480
balancing of outside interests than an expression of the constitutive expectations of
the people in the territory'. *

The Constitutional Principles received the support of SWAPO not only because of international pressure, but because the Principles were not inimical to SWAPO's stated policies and views on minorities. Already in 1975 the position was adopted in a Discussion Paper that a Namibian constitution should include 'a detailed and effective Bill of Rights'. * The enforcement of a bill of rights by a constitutional court was justified, inter alia, as 'the single most effective line of defence for any minority'. * This position was again reiterated by the United Nations Institute for Namibia (UNIN), then under the direction of Hage Geingob, who became Namibia's first prime minister in the SWAPO-government. In a publication on constitutional options, it was


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