Professional Documents
Culture Documents
Marinus Wiechers
F
or almost two decades, constitution From mandated territory
making lay at the heart of Namibia’s to independent state
peacebuilding and national recon-
Namibia, the League of Nations,
ciliation initiatives. In many other countries
and the United Nations
ravaged by internal and external strife, or ha-
rassed by a prolonged struggle for indepen- After World War I and Germany’s defeat, the
dence from colonial or foreign rule, consti- allied powers established the erstwhile Ger-
© Copyright by the Endowment of
tution making came almost as an appendix
to the final peace agreement and settlement
man colony of South West Africa as a man-
date under the supervision of the League of
81
82 Marinus Wiechers
sor in law to the League of Nations, South light to the Trusteeship Council to receive
Africa approached it in 1945, asking to have petitions directly from the inhabitants of the
the mandated territory officially incorporated territory. The court’s opinions, although of
into South Africa. The request was denied, great persuasive authority, had no binding
and South Africa was instructed to place the force, and South Africa refused to give effect
territory under the supervision of the Gen- to them.
eral Assembly and its Trusteeship Council. In 1960, Liberia and Ethiopia, two former
South Africa refused, leading to a prolonged members of the League of Nations, insti-
feud in the United Nations and one of the tuted action against South Africa, request-
most protracted legal battles in the Interna- ing the court to declare the forfeiture of the
tional Court of Justice (the World Court). mandate on the grounds that South Africa,
by applying its apartheid policies in the terri-
tory, had betrayed its sacred trust of promot-
The South West Africa/Namibia Cases
ing the material and moral well-being of the
in the World Court territory’s inhabitants. It was hoped that, this
A full explanation of the weighty legal issues time, a court judgment with binding force
raised in the South West Africa/Namibia would compel South Africa to relinquish its
cases is beyond the scope of this chapter. Suf- claims to the territory, or at least comply with
fice it to say that in many respects, the advi- UN demands.3 In 1962, the court judged the
sory opinions, judgments, and separate opin- preliminary issues and found that it had com-
ions of individual judges of the World Court petence to hear the case. But in 1966, with its
regarding the case influenced and shaped in- president casting the deciding vote, the court
ternational law on such fundamental issues held that the applicants had failed to prove
as the succession and powers of international a legal right and interest in the matter and
organizations, international peacekeeping, declined to give judgment. The result of the
the jurisdiction of the court, and the inter- judgment was far-reaching. Whereas South
national protection of human rights. Since Africa hailed the outcome of the case as a le-
the court’s involvement supplied the legal gal victory and immediately went ahead with
1950s and 1960s, not only internationally but the various ethnic groups were convened to
also in the territory itself. The South West debate the constitutional future of their coun-
African People’s Organization (SWAPO), try. SWAPO refused to participate, however,
the Ovambo-based liberation force in the and the United Nations—both the Security
territory, started with military operations on Council and the General Assembly—con-
the northern borders; with Cuban support, demned this exercise in constitution making
this led to a low-intensity war that continued as an unauthorized act of unilateral indepen-
almost to the end of the peace process.5 dence. Notwithstanding the fierce opposition
In the mid-1970s, South Africa realized it provoked, the Turnhalle conference consti-
that with growing international pressure and tuted a landmark in the processes of Namib-
a multitude of UN resolutions calling for its ian constitutional development and politi-
withdrawal from the territory, as well as the cal emancipation. Conference leaders were
insurgency on the northern borders, the time taken to the United States, United Kingdom,
had come to prepare the territory for inde- and Europe, where they met unofficially with
pendence. However, South Africa still hoped members of government and leaders of polit-
that the territory would adopt a kind of ical parties. In the territory itself, as well as in
apartheid system of government that would South Africa, the conference and its deliber-
ensure the white population a predominant ations received much publicity and exposure.
position by assigning black and colored pop- Mainly through the leadership, charisma, and
ulation groups to ethnic homelands, where foresightedness of Clemens Kapuuo, chief of
they would enjoy the benefits, albeit limited the Hereros, and Dirk Mudge, member of the
in some important respects, of citizenship white delegation and chairman of the confer-
without being able to exercise direct power ence, a new political alliance of eleven ethnic
in the central government.6 This no doubt political parties was formed; it was called the
explains why the South African government Democratic Turnhalle Alliance (DTA).8 To-
frequently interfered in the Namibian con- ward the beginning of 1978, the Turnhalle
stitutional processes in the years before inde- conference adopted a constitution for an in-
pendence, especially when it perceived that terim government,9 which was promulgated
ing support in the countrywide elections held and especially because of the activities of the
later in that same year. Seventy-eight percent Turnhalle conference and the DTA, there
of voters supported the constitution for the was a growing awareness among some Secu-
interim government, which was soon after rity Council members that South Africa, af-
installed by an act of the South African par- ter all, was not as intransigent as it previously
liament.10 Needless to say, neither the United seemed to be, and that a negotiated settle-
Nations nor SWAPO recognized the interim ment on Namibia could well be attempted.
government. This awareness led to the formation of the
so-called Western contact group, an unofficial
body of representatives of the governments of
A South African Administrator-General
the United States, France, the United King-
With the installation of the interim govern- dom, Canada, and West Germany. In 1978,
ment in Namibia, the South African govern- the contact group managed to win the sup-
ment abolished white representation for Na- port of the South African government and
mibians in its own parliament and appointed all the Namibian political parties, including
an administrator-general with wide-ranging SWAPO, for a comprehensive peace and
legislative and administrative powers to pre- independence process. The Western contact
pare Namibia for eventual independence. group’s negotiated agreement was endorsed
The newly appointed administrator imme- by the Security Council as Resolution 435
diately abolished some of the most offen- (1978); in the ensuing years, this resolution
sive apartheid legislation applicable in the would form the basis for the entire political
territory11 and remained in Namibia until transition up to the elections and indepen-
independence. As representative of his gov- dence. However, South Africa (backed by
ernment, he played a most important role in the United States) refused to have Resolu-
preparing the transition. It was with him that tion 435 implemented as long as the Cubans
the special representative of the United Na- maintained their presence in Angola. At
tions, Martti Ahtisaari, concluded the agree- that time, the fear of communist intrusion
ments of the final phases of the peacekeep- into Africa was not farfetched, and on these
cluding military, were almost 200. UNTAG’s The DTA defeated SWAPO in many south-
task was of a considerable magnitude and ern districts.
is described by Martii Ahtisaari, the Spe- Immediately after the elections, the UN
cial Representative of the UN Secretary- special representative declared them to be
General, as follows:15 free and fair in accordance with Resolution
The [peace] process would move step-by-step,
435, and a seventy-two-member constit-
from a cease-fire in a long and bitter war, to the uent assembly convened for its first session on
final moment of transition, that of indepen- November 21, 1989. According to principles
dence. Each aspect—cease-fire, confinement to of proportional representation and based on
the base, demobilization, withdrawal of troops, the outcome of the elections, SWAPO held
the continuous process of supervising the con- forty-one seats, the DTA twenty-one seats,
duct of the local police, the release of political
prisoners,16 the repeal of discriminatory laws,
and the other five smaller parties ten seats.
the adoption of the general amnesty and the re-
turn of many thousands of Namibian refugees;
then the process of registration for elections,
The Constituent Assembly and Constitutional
the political campaign, the voting itself—all Proposals of the Political Parties
had to be completed to my satisfaction, as the Before describing constitutional develop-
Representative of the Secretary-General of the
United Nations, and in accordance with the Se-
ments after the elections, it is important
curity Council’s mandate.17 to note preceding events that relate to the
role of the constitutional council established
in 1985. In November 1983, six political
The 1989 Elections parties—excluding SWAPO, the Damara
council, and other minor parties—assem-
Elections for the constituent assembly were bled as a multiparty conference to draft a
held from November 7 to November 11, so-called permanent constitution. On April
1989.18 Altogether, 701,483 voters registered 18, 1984, the multiparty conference reached
for the election and 670,830—just over 97 agreement on a bill of fundamental rights
percent—cast their votes. During the elec- and objectives, which, together with other
the bill were made justiciable, a number of achieve unanimous support for its draft, as
major human rights judgments resulted, both four of the eighteen participant parties re-
in the Namibian courts and the South Af- fused to give their assent. With its clear re-
rican appellate division, which remained the jection of any form of institutionalized ethnic
final court of appeal for Namibia at that time. categories, the draft constitution also failed
The task laid upon the South African court to meet the South African government’s ap-
to judge human rights issues was extremely proval, and was therefore never implemented.
challenging and certainly presented a most The administrator-general abolished the sec-
important learning experience, especially in ond interim government shortly after that,
light of things to come in South Africa itself. when the DTA withdrew.
At that stage, South Africa had no justiciable After convening in November 1989, the
bill of rights and the measuring of laws and newly elected constituent assembly imme-
governmental acts against the provisions of a diately invited the participant political par-
bill of rights, was completely foreign to South ties—that is, all parties that had gained seats
African law and experience. It is remarkable in the seventy-two-member assembly—to
that the South African human rights deci- submit constitutional proposals. The parties
sions that emanated from appeals from Na- all submitted more or less complete constitu-
mibia proved, in some cases, to be of major tional drafts. The proposals of two of the mi-
significance, serving as precedents for post- nority parties, the United Democratic Front
1994 South African legal practice as well as and the National Patriotic Front, expressly
judgments for the situation at hand. The dis- referred to the binding nature and applica-
tinction between the legal treatment of hu- bility of the 1982 constitutional principles.
man rights in Namibia and South Africa was The DTA proposals were virtually the same
partly a result of UN oversight in Namibia, as the draft constitution developed by the
but also largely a result of South Africa’s real- previous constitutional council, and, as the
ization that the protection of minorities and council kept to the 1982 principles, the DTA
individuals in Namibia—especially whites, proposal conformed to them as well.19 The
most of whom also had South African citi- constitutional proposals of the two predomi-
draft provided for the judicial protection of own proposals in the SWAPO draft and
some basic human rights, but with strong were quite content to treat the document as a
qualifications and extensive governmental working paper without having to accept it as
powers of derogation and limitation. emanating from SWAPO alone. Ironically,
Officially, the original SWAPO proposals this meant that SWAPO, although the vic-
never saw the light of day; with the fall of the torious political party with support from 60
Berlin Wall and the overwhelming signs of a percent of the voters, officially had no consti-
crumbling communist empire, the East Euro- tutional proposals on the table. The SWAPO
pean inspiration for these proposals suddenly initiative was no doubt a most valuable con-
became extremely suspect. SWAPO then tribution to the assembly’s work, as it con-
hastily had to convene a drafting committee solidated elements of most of the other pro-
to draw up new proposals. The proposals even- posals, albeit in a somewhat crude and untidy
tually submitted to the constituent assembly form. Moreover, general awareness that the
were contained in a rather untidy document working document emanated from SWAPO
that included almost verbatim many of the produced among SWAPO supporters a per-
proposals of the other participant parties, ception of credibility and legitimacy for the
especially those of the DTA. SWAPO’s pro- assembly’s work.
posed bill of rights almost literally conformed Having lived through an extremely stress-
to the 1984 bill of fundamental rights and ful year, and having been engaged in a hard
objectives of the previous multiparty con- election campaign, assembly members were
ference, which drew its inspiration from the not in the mood to tackle the working docu-
UN Universal Declaration of Human Rights ment immediately and undertake the ardu-
and the European Convention for the Pro- ous task of thrashing out the particulars of
tection of Human Rights and Fundamental a new constitution. The December holidays
Freedoms. The only element of the original gave them time to absorb the outcome and
SWAPO proposals that remained related effect of the elections, especially among those
to the rather extensive list of nonjusticiable population groups, such as Herero tradition-
government principles on socioeconomic and alists and whites, who found it emotionally
It is an intriguing question why the con- related mainly to states of emergency and
stituent assembly, notwithstanding the fact national defense, powers of the president,
that an abundance of constitutional exper- and, particularly, matters concerning local
tise was offered to it from all parts of the and regional government. An entire chapter
world, decided to appoint three South Afri- on the second house of parliament, the na-
can lawyers of whom two were Afrikaners— tional council, its composition, and its powers
the Afrikaners being popularly perceived as of review also had to be drawn up. In addi-
the original perpetrators of apartheid. On tion, and apart from necessary transitional
a purely practical level, the answer to this provisions regarding the application of exist-
question was quite simple: Assembly mem- ing laws and regulations, provision had to be
bers knew that a future Namibian constitu- made for implementing the new constitution,
tion would have its roots in the South Af- especially as far as election of the national as-
rican legal system since the common law of sembly and the president was concerned. In
the two countries remained the same. Also, the latter regard, the drafters proposed that
the constitutional law and traditions of both the members of the constituent assembly be-
countries were similar. On a deeper level, the come the members of the new national as-
choice of South African lawyers might well sembly, which should elect the first head of
have been the result of rather strong suspi- state. After the first term of office, the presi-
cions toward the “outside world.” In particu- dent would be elected directly by popular
lar, the turmoil in Eastern Europe after the vote. In conjunction with the constitutional
fall of the Berlin Wall created the sentiment draft, the drafters compiled a memorandum
that the Namibian constitution should not to explain precisely the scope and meaning of
be the product of some foreign experiment. each article and provision of their draft. This
Assembly members conveyed to this author memorandum was submitted to the assembly
the view that “we should rather have some together with the draft constitution.
of our own people, and South Africans and
we are family.” It should also not be forgot-
The Constitutional Committee
ten that Afrikaans was and still is the lingua
draft on February 9, 1990. The work of the to contradict their other SWAPO colleagues.
constitutional committee was carried out in It was apparent that SWAPO members were
camera without any direct press coverage. The not burdened with fixed party directives,
reason for this secrecy, no doubt, was to aid which lent much openness to the discussions.
the members in reaching consensus. Wide- In only one matter the SWAPO members
ranging behind-the-scenes negotiations took expressed their views in concert and clearly
place during the committee’s deliberations, under a party directive, namely that the fu-
as it was felt that public exposure at such a ture president should not be a member of the
sensitive stage could jeopardize the process. national assembly.
However, there was extensive press coverage Having discussed and approved every
of the debates in the constituent assembly, article and provision of the draft constitu-
and the proceedings were open to the public. tion, on January 22, 1990, the constitutional
Given that all the political parties were repre- committee unanimously approved the draft
sented in the constitutional committee, very as a whole and referred it to the constituent
little debate and certainly no major disagree- assembly.31
ment occurred in the assembly; unanimous
support for the draft was reached without any
Adoption of the Constitution and Independence
difficulty.28 When the constituent assembly
met in February 1990 for the final adoption After a discussion of the constitutional com-
of the constitution, it had no fixed timetable. mittee’s draft constitution, the constituent as-
However, because consensus was reached in sembly unanimously approved Namibia’s con-
the constitutional committee, it took little stitution on February 9. Amendments to the
more than a week for the assembly to adopt draft in the assembly related mainly to gram-
the final constitution. More important was matical and editorial matters and did not in
that the assembly already had decided on the any way alter the substance. With the new
day for Namibia’s independence—March 21, constitution meticulously tested against the
1990—which assuredly made drawn-out de- 1982 constitutional principles, the secretary-
bates in the assembly impossible. general of the United Nations reported to the
fundamental freedoms may not be dimin- it influence South Africa’s own constitution-
ished or detracted from. An electoral system making and peace-building processes?
of proportional representation underpinned
the universally elected executive presidency
as well as the national assembly. A prime The Central Role of Constitution
minister became elected by the national as- Making in Conflict Resolution
sembly from its own members, and a cabinet in Namibia
of ministers was appointed by the president The effect of the Namibian constitution-
from members of parliament. Decentralized making process in resolving both internal and
government was instituted in the form of re- external conflict and in facilitating a peaceful
gional councils, the members of which were transition to independence must be viewed in
also elected proportionally within defined its particular Namibian context of past sys-
constituencies. A national council, elected by tems of government, the land, and its people.
members of the regional councils, would in In colonial times, the entire country fell
the future form the upper house of parlia- directly under the authority and powers of
ment. Other important institutions created a German governor. German administra-
by the constitution were the ombudsman, tion, however, did not extend fully over the
a public service commission, and a security territory; the northern parts of Ovambo,
commission. Finally, the constitution safe- Kovango, and Caprivi fell above the so-
guarded the independence of the judiciary. called red line, which meant that there were
On the strength of the November 1989 elec- no settler farms and very little colonial ad-
tions, SWAPO gained 62 percent of the seats ministration in those parts. When South
in parliament. President Njoma became the Africa took up its mandate in 1919, more
first head of state, also elected by the national or less the same administrative arrangement
assembly. The transitional provisions of the was retained. In 1924, the territory was given
constitution that converted the constituent a constitution, drawn up and passed by the
assembly into the first national assembly (the South African parliament, which provided
number of seats in both assemblies being the for limited self-rule under the overall sov-
situation changed drastically in 1978 when, To grasp the impact of the Namibian
in preparation for eventual independence, constitution-making processes, a few ex-
the 1968 constitution was repealed, the planatory remarks on the land and its peo-
administrator-general was appointed to take ples should also be added. Namibia is a vast,
direct control, and Namibian representa- largely arid and desert country. It is sparsely
tion in the South African parliament was populated, with fewer than two million peo-
terminated. ple.39 The majority of its inhabitants live in
In short, it can be deduced that apart from the northern parts of Ovambo, Kavango, and
its unofficial constitutional processes, Na- the Caprivi—the regions that fell outside
mibia had its fair share of constitutional vi- the original field of German government
cissitudes. However, population groups other administration and to this day consist of
than the whites had little or no experience of tribal land with no commercial farming. For
these constitutional arrangements and ma- many years, Ovambo workers moved to the
nipulations since, for the most part, their south as laborers on farms and in the fish-
homeland governments were under the direct ing industry under former migrant worker
authority of commissioners-general who were regulations. The Hereros constitute another
South African-appointed officials. Although dominant traditional group, mainly in the
some members of the homeland govern- central parts of Namibia; they are fiercely
ments were elected,35 most of these members traditional and led the war against the Ger-
were traditional leaders. It could be said that mans, who severely reduced their numbers in
until the advent of the Turnhalle conference, these military clashes. The Damara, probably
formal political life among the peoples of the one of the oldest groups in the territory, were
territory was extremely underdeveloped, ex- subjugated mainly by the Hereros, and in the
cept, of course, among the white population. process lost their original language. Inter-
On the other hand, informal political or- estingly enough, they form a heterogeneous
ganization in the territory was alive and well. group that had much contact with and an
These political organizations and activities understanding of most of the other groups.
were, in the main, directed against the South The Tswana are a small group who originally
In the context of Namibia’s history, politics, making is a valid and important means of
peoples, and progress to independence, the achieving peace and creating conditions for
process of conflict resolution and peacebuild- stability and national reconciliation. From
ing in that country went hand in hand with this, it flows naturally that such participants
constitutional reform and constitution mak- must know what a constitution and its im-
ing; the latter processes were the means and, pact on the affairs of state are. This does not
in essence, the vehicles for conflict resolution, mean that members of constitution-making
peacebuilding and national reconciliation. Of bodies should all be constitutional experts; it
course, some issues could not be resolved by is important to have trusted constitutional
constitution making alone and had to be dealt advisers and expert committees to support
with conjunctively to sustain and strengthen and guide the constitution-making process
the peacebuilding process. The termination and also formulate agreements and deci-
of the border war and the conclusion of a sions in constitutional terms, without forcing
peace agreement were of vital importance, their ideas on the constitution-making body
and the abovementioned trilateral agreement or manipulating the process. In this respect,
among Angola, Cuba, and South Africa to the Turnhalle Constitutional conference of
withdraw Cuban forces created the neces- 1975–78 provided valuable lessons. In that
sary conditions for constitution-making to conference, excepting the members of the
proceed. The creation of these conditions for white legislative assembly, who through their
peace, although not directly related to con- training and experience in that body had con-
stitution making, was not entirely divorced siderable knowledge of constitutions, almost
from it; the political parties engaged in the all the other members were from ethnic au-
making of the constitution were constantly thorities with little or no knowledge of con-
informed of these developments and indeed stitutions and constitution making, as their
attended some of the meetings at which the homeland constitutions had been drawn up
termination of the war was discussed. for them by the South African government.
Another issue that could not have been re- The Bushmen delegates had absolutely no
solved by constitution making alone was the experience because there was no homeland
selves, admittedly, in the beginning, with the the initiatives of the Damara and Tswana
tacit consent of the conference conveners, delegations. Soon after the constitutional
the white legislative assembly.43 The consti- committee’s work commenced, these delega-
tutional advisers had regular meetings with tions presented the conference with a draft
their respective delegations and drew up constitution for an independent Namibia,
proposals for them. They did not participate comprising a bill of rights and providing for
directly in conference deliberations, but fol- universal franchise and judicial review of all
lowed the proceedings through microphones governmental laws and practices. Instead of
in an adjoining venue. ethnic governments, it proposed a federation
A major breakthrough occurred in the of northern and southern regions with two
Turnhalle conference’s first week, when it autonomous legislatures and governments
adopted a declaration of intent in which the for each of these two regions, as well as a cen-
delegations declared themselves to be the true tral government composed of representatives
representatives of the Namibian people and of the two regional legislatures and govern-
took it upon themselves to exercise their right ments. The Damara and Tswana proposals
of self-determination by adopting a constitu- met with outrage on the part of some of the
tion for their country. A constitutional com- white delegates,45 but had the overall effect
mittee of representatives of all the delegations of diverting plans for a federation based on
was elected under the chairmanship of Dirk ethnic systems of government.
Mudge. In the following two years, however, Eventually, when the Turnhalle constitu-
the full conference assembled only sporadi- tion was adopted in 1978, it contained the
cally, and the constitutional committee car- Tswana and Damara proposal for a bill of
ried out the main work and deliberations. rights, but found a compromise in proposing
There is every reason to believe that the second-tier governments, not to be exclu-
Pretoria government and some members of sively territorially based, for the various eth-
the host body, the white legislative assembly nic groups. These governments would have
of South-West Africa, had previously drawn exclusive jurisdiction over the so-called spe-
up a draft constitution. This constitution, cial affairs of each ethnic group. What con-
ference and also in later years, engaged in a dopted, including for Dirk Mudge’s Repub-
serious debate among themselves and other lican Party. This parallel process of develop-
delegations on the meaning and importance ing party charters was of significance to the
of a democratic constitution. Evening lec- later official constitution-making process be-
tures, seminars, discussions, and workshops cause it emphasized the normative and over-
were held on a wide range of topics pertain- riding force of constitutions in regulating
ing to constitutions and constitution mak- matters of governance. In addition, the char-
ing, as well as many substantive issues such ters required the creation of political party
as the opinions and judgments of the World manifestos, in which participation in the offi-
Court, systems of government, the role of cial constitution making for a future democ-
political parties in a multiparty democracy, racy was contained as a clear goal. In other
the international protection of human rights, words, all the political party charters pre-
the role of the United Nations in Namibian pared the parties for the constitution-making
affairs, and many other subjects. As a result, process.
in the conference debates, members of these In the years following Turnhalle, consti-
delegations expertly discussed constitutional tutional debate pervaded the political scene
matters, even when some members of the and influenced all political developments.
white delegation wanted to exasperate them The place and importance of a constitution
with seemingly superior knowledge of these in a democratic system, as well as the vital
matters. When the Tswana and Damara del- elements for its protection, were constant
egations released their constitutional draft, themes in the 1978 elections and all the po-
they held an international press conference litical campaigns leading to the final elec-
at which they discussed and explained their tions in 1989. In the debates and decisions
proposals, on their own, with considerable of the 1985 constitutional council, constitu-
knowledge, understanding, and insight. The tion making was the central issue, and the
infusion of constitutional expertise into the local press regularly reported on constitution
debates tremendously enhanced the level of making and constitutional issues.47
discussion. It was most encouraging and in- In the DTA’s election campaigns and party
ciples that relate to the binding force of the on making the process successful. SWAPO
constitution, the organization and powers of not only supported the constitution-making
all levels of government, the electoral sys- process wholeheartedly, but simultaneously
tem, the protection of human rights, and the pushed for its timely conclusion because it
structuring of public services and local and knew that the coming into operation of an
regional government,48 the constituent as- independence constitution was a prerequisite
sembly had to ask itself constantly whether for SWAPO’s entry into government. Once
a specific proposal would serve the goal of a date for independence was set, a prolonged
founding a democratic state. This constant and protracted process of constitution mak-
questioning found practical application, for ing would have been extremely perilous, as it
instance, when the tenure of the head of state would have been perceived as a means of de-
was discussed and it was unanimously agreed liberately obstructing SWAPO’s accession to
that a life presidency or a presidency for more power. The minority parties also understood
than two terms of office would be contrary the benefits that successful constitution mak-
to the tenets of democracy. The 1982 consti- ing would hold for them, namely, a system of
tutional principles were the guiding star of government under which political freedom
the assembly’s deliberations. They came to be would be assured. Adopting a binding and
known as the “holy cow” in the deliberations justiciable bill of rights would safeguard the
of both the assembly and the constitutional personal liberty and security of all the minor-
committee. Each time it was perceived that ity parties’ supporters in the face of possible
a proposal would offend the “holy cow,” the abuse of power by the majority.50
chairperson would immediately rule the pro- The constitution contained two other ele-
posal out of order. ments that attracted support for it from most
Another rather obvious but essential citizens and assured its legitimacy among the
element of the success of the Namibian broad population; these elements made the
constitution-making process was that all population feel that it was their constitution.
participants expected the process to benefit The first was the constitution’s express affir-
their parties and themselves in some way. mative action article, which provided that,
times, but on the whole, these political events ern leadership, transcended pure traditional
infused the country with social activity never leadership and achieved elite political stature.
before experienced on that scale. In addition, The DTA—and more particularly, the white
advanced communication systems spread po- alliance party of Dirk Mudge, the Republi-
litical messages over the whole land. In pre- can Party—was the major factor in broaden-
independence days, SWAPO conducted a ing the basis of the Namibian elite among
network of radio services from outside Na- the other population groups by drawing their
mibia’s borders. SWAPO was never banned leaderships into the alliance. Without this
formally in the years leading up to the 1989 broadening of the Namibian elite, the final
elections, but its leaders were constantly ha- phase of the constitution-making process
rassed and even imprisoned, making political would not have had its successful outcome.
life and open participation extremely diffi- Though it might have become politically
cult, if not impossible. Overall, the Namib- incorrect to acknowledge the crucial role of
ian population was saturated with political some of the white elite, the success of the
propaganda and information, much of the Namibian constitution-making process must
latter relating to constitutional matters and to a large measure also be ascribed to Mudge
the content of a future constitution for an and his followers, who not only wholeheart-
independent Namibia. edly immersed themselves in the liberation
The process of constitution making must movement, but also created the opportunities
be driven by elites. It cannot be conducted for many other political leaders to join in the
and successfully concluded solely by popular class of Namibian elites.
initiative and mass movements. Elites have Receiving information surely also consti-
to plan, conduct, and conclude the process of tutes a form of public participation, albeit a
constitution making, although, admittedly, more passive one. The Namibian media and
this process must, for its ultimate legitimacy, particularly its press played an important role
be continuously sustained by popular support. in this regard. Over the years, Namibia had a
Because political parties in Namibia were the well-developed radio system, and radio sta-
major actors in planning and conducting the tions operated in the languages of the various
early years, was fiercely partisan, but after in- sition of the assembly and public respect for
dependence, it became more neutral without that body made an additional act of ratifica-
entirely losing its character of being, if not in tion seem superfluous.
direct opposition, then rather critical of gov- One proposal, considered by the committee
ernment. Television service became available and rejected, has some potential relationship
in the country toward the end of the 1970s with public participation: that the constitu-
and was a forceful instrument in informing tion be subjected to a periodic review process.
the population about political developments. Some authorities have suggested that such
In the period leading up to the elections a procedure could be the occasion for pub-
of 1989 and during the time of implement- lic participation on an ongoing basis, which
ing Resolution 435, UNTAG also provided in some cases could offer opportunities for
extensive information services. A total of participation over and above that associated
forty-two regional and district centers were with adopting the final text. The proposal was
established and provided the necessary in- rejected because the committee feared that
formation network to assist in the process of such a procedure would create the impres-
reconciliation. In addition, the UNTAG in- sion that the constitution was a precarious
formation service produced 32 television pro- document that needed to be amended and
grams and 201 radio programs in thirteen lan- changed. The committee feared that the cre-
guages; it also distributed 600,000 UNTAG ation of such an impression might encroach
shirts, buttons, stickers, pamphlets, and post- on the fundamental character of the text.
ers. UNTAG regional and district officials
spoke to local opinion formers, political par-
ties, churches, and farmers, and directly con- Democratic Representation
tacted the people. Admittedly, the UNTAG In Namibia, the question of democratic
information campaign was not about constitu- representation in the constituent assembly
tion making, but it reinforced the constitution- was not a bone of contention. It was simply
making process tremendously in that it prop- agreed during the peace negotiations that
agated the idea of free and fair elections for the various political parties would be repre-
a factor that saved the Namibian constitu- process. This is understandable, as Resolu-
tion from many complications and burdens tion 435 was the concrete outcome of a long
of political ideology. and complex process of peacebuilding, inter-
Second, the prolonged process of Namibian national diplomacy, negotiation, and agree-
constitution making no doubt gave internal ment. Put very succinctly, it could be said
parties much opportunity to activate political that a country in transition, for its constitu-
life and strengthen and position themselves. It tion making, ideally should have some type
must be emphatically stated that a multiparty of road map such as Resolution 435.
democracy in Namibia would have been im- Sixth, Namibia had its fair share of interim
possible if internal parties were not afforded constitutions and notwithstanding their im-
these opportunities, as a political culture of perfections and lack of acceptance, they were
multiparty democracy does not come easily, crucial in all the phases leading up to the fi-
especially in African countries. nal constitution making. The effect and over-
Third, the final phase of constitution mak- all value of these interim arrangements speak
ing in Namibia was remarkably quick. The from the above.
speed with which the process was concluded Finally, the role of the internal parties in
must be ascribed to the host of internal and Namibia during the time when the conflict
external factors described above, and was not was still raging and the international dis-
achieved merely because, at a given point, in- putes continued unabated proved to have
terested parties agreed to draft a constitution been of the utmost importance. Attempts at
for an independent Namibia. constitution making in the 1970s were initial
Fourth, the final Namibian constitution efforts that exercised a beneficial influence in
emanated from a single draft, drawn from the final phase. The Namibian case demon-
the constitutional proposals of the various strates the potential benefits for a country in
parties—which was possible because the pro- transition of beginning the process of con-
posals contained considerable points of con- stitution making as early as possible, even
vergence. In a very real sense, the elections though such early constitution making may
for the constituent assembly served three be rather hesitant and rudimentary.
the territory. What should not be forgotten can regime. This, of necessity, could severely
is that, before independence, Namibia repre- damage relations with the Third World and
sented the last vestige of colonial rule in Af- nonaligned countries. All these reasons ex-
rica. This raised much emotion among Third plain why the Western contact group was so
World countries in the UN General Assem- concerned to have Resolution 435 accepted
bly, especially among African members. To by all interested parties and be put into op-
them, what was infinitely worse was South eration. Namibia, certainly, was not a country
Africa’s continued occupation of Namibia, of major importance, but the political impli-
widely labeled as illegal after the revocation cations of the dispute there were immense
of the mandate. The South African govern- and had international dimensions.
ment itself became branded as “colonialism Fortunately for Namibia, the involvement
of a special kind.” Also, the buildup of the of the organized international community ul-
Cold War after World War II increased and timately was spearheaded not by the General
intensified the Namibian conflict. Support Assembly—with its at times disproportion-
for the Namibian cause became the yardstick ate political emotions—but by the Security
against which East and West identification Council and, more particularly, the Western
with anticolonial movements and causes was contact group. The Contact Group’s even-
measured. handed and diplomatic treatment of the Na-
In those years, and especially in General mibian problem was to a large measure the
Assembly debates, South Africa’s presence in reason for its successful outcome. Similarly,
the territory and obduracy in the matter were the role of the then secretary-general of the
constantly branded as threats to world peace. United Nations and his balanced way of deal-
This was certainly far-fetched, but it has to ing with the obstacles as they arose deserve
be understood in the context of the United credit. Namibia’s former international status
Nations. The UN’s peacekeeping powers are as a dependent territory was terminated at
well defined in its Charter and mainly re- the time of independence when the country
served for the Security Council. Over the acceded to its new international status, that
years, however, the General Assembly be- of a sovereign independent state and full
conducting of free and fair elections were resolve acute economic and social malaise.
all constitutionally ensured and safeguarded. A third term of office for the president in
Most important, it laid the foundations for 2000 was manifestly unconstitutional and
a multiparty democracy. In this respect, the calls up the horrifying threat of an African
people themselves, probably for the first time life presidency.59 It is said all is well that ends
in Africa, totally rejected the concept of a well. This is surely true as far as the Namib-
one-party state. Namibians are proud of their ian constitution-making process was con-
constitution and the values it contains. What cerned; whether it is true for the continued
is more, the Namibian constitution-making application and role of the constitution itself
process, in many respects, gave invaluable remains to be seen.
guidance and provided some important les- After more than sixteen years of inde-
sons for South Africa’s constitution making pendence, the Namibian Constitution still
in the 1990s. Perhaps the most important les- holds good. Notwithstanding the misgivings
son was that a rigid apartheid regime could expressed, political party life is still active.
peacefully evolve into a fully democratic A small but vibrant opposition party—the
system. On a practical level, Namibian con- Namibia Democratic Party, which emerged
stitution making taught South Africa the from SWAPO ranks—and other political
importance of having a set of constitutional parties still enjoy all their constitutional
principles in the making of a constitution. rights and freedoms. Most comforting, there
The South African constitutional principles, are no signs of the constitution being side-
adopted at the time of the drafting of the in- stepped or parts of it being suspended. In
terim constitution, were accepted by all the its years of independence, Namibia has not
parties as a solemn pact and provided the ba- known any state of emergency or undergone
sic tenets of the final constitution. any serious political upheavals.
Yet there are disconcerting elements in The final word here belongs to Bryan
the evolution of the Namibian constitutional O’Linn, staunch opponent of apartheid, sea-
practice. A democracy should constantly be soned politician, and esteemed judge of the
vigilant and guard against unconstitutional Namibian High Court:
2. There is a wealth of literature on Namibia, recommended that the territory should be divided
its history, geography, peoples, politics, etc. Probably into homelands for the various ethnic groups and
one of the most comprehensive and authoritative be governed on exactly the same apartheid lines as
works remains John Dugard’s The SWA/Namibia in South Africa. After that, the recommendations
Dispute (Lansdowne: Juta, 1973). of the commission were vigorously applied in the
3. At the same time, the court’s condemna- territory.
tion of South Africa’s apartheid policies in the ter- 7. The Turnhalle is an old historical build-
ritory would have had the much broader effect of ing in Windhoek that was a gymnasium in German
giving the United Nations a legal basis for attack- colonial times.
ing the application of these policies in South Africa 8. Chief Clemens Kapuuo was assassinated
as well. As it speaks for itself that should the court on March 27, 1978. To this day, his murder is un-
have declared apartheid policies detrimental to the solved. After independence, President Sam Njoma
material and moral well-being of the inhabitants of acknowledged Dirk Mudge, a white farmer and
the territory, the same argument would hold against member of the ruling white legislative assembly, to
South Africa, where identical policies were in place. have been one of two white leaders who contrib-
A clear condemnation of its governmental policies uted most to the peace process in Namibia. Mudge,
could have led to a questioning of the legitimacy of a leading member of the ruling white Nationalist
the South African regime, as happened in the ensu- Party—in all respects an offspring of the ruling Na-
ing years when the South African regime became tionalist Party in South Africa—realized that his
branded as “colonialism of a special kind.” party would never win broad support among the
4. For a criticism of the legal grounds for the other population groups, and decided on March 18,
revocation of the Mandate, see Marinus Wiechers, 1977, to break away and form the Republican Party,
“South West Africa: The Background, Content, and founded on the express premise of joining the other
Significance of the Opinion of the World Court of ethnic parties and forming the Democratic Turn-
21 June 1971,” South Africa Journal of Foreign and halle Alliance (DTA). The breakaway by Mudge
Comparative Law, vol. 5 (1975), pp. 123–70. and his followers created deep animosities among
the Afrikaner community; it is only recently, years
5. SWAPO, although not exclusively after independence, that these rifts have closed. For
Ovambo, draws its main support from that popu- an excellent account of the life and political career
lation group. The Ovambo, who constitute more of Dirk Mudge, see At van Wyk, Dirk Mudge Reën-
than half of the Namibian population, live mainly maker van die Namib (Pretoria: JL van Schaik Pub-
in the northern part of the territory. The colonial lishers, 1999) (in Afrikaans).
border between South West Africa and Angola, as
9. The making of the 1978 interim consti-
Africa’s name should be changed to Namibia. In force was removed when the constituent assembly, at
the minds of these members, the name Namibia its first meeting, took it upon itself to adopt them.
was synonymous with UN interference and implied 14. That the South African parliament ad-
support for SWAPO, as during those years, the UN opted the Recognition of the Independence of
General Assembly (but not the Security Council), Namibia Act 34 of 1990 is proof, constitutionally
came to regard SWAPO as the “sole and true repre- speaking, of the evolutionary nature of Namibian
sentatives of the people of Namibia.” Eventually, the independence and the transfer of sovereignty. In
conflict was resolved when the conference opted for international law, transfer of sovereignty to an in-
the name South West Africa/Namibia. This name dependent Namibia posed a problem. As a result of
remained until independence. the revocation of the mandate in 1966, South Africa
10. The elections, which gave the vote to all ceased to exercise legal authority over the territory.
adult Namibians, were hurriedly organized with- Thus, strictly speaking, South Africa’s emancipatory
out proper voter registration and other necessary power to confer sovereignty to an independent Na-
safeguards. There is every reason to believe that the mibia also ended. The United Nations also did not
78 percent was inflated and even manipulated. have such authority under its charter. This problem
However, the elections were important in that in was solved by Resolution 435, under which it was
fluential religious leaders supported them and that agreed that South Africa’s de facto administration
all Namibians, for the first time in history, were of the territory would be recognized for the purpose
given the opportunity to have a voice in their own of transferring sovereignty. However, it was also
destiny. The result was that the masses flocked to agreed that the Namibian constitution would not
the voting polls notwithstanding the opposition by mention South Africa’s bestowing of sovereignty
the United Nations and SWAPO. and independence. Looking at the process from
11. For instance, the laws prohibiting mixed a constitutional law perspective, it can well be de-
marriages and sexual relations between the races. scribed as evolutionary rather than revolutionary.
15. Martii Ahtisaari, “Foreword,” South Afri-
12. The dissolution of the interim govern-
can Yearbook of International Law, vol. 15 (1989–90),
ment was a result of deep-seated differences be-
p. ix.
tween Dirk Mudge, the chairman of the interim
cabinet, and the then–South African president P.W. 16. The administrator-general released all but
Botha. Whereas Mudge wanted more autonomy for sixteen political prisoners; after reconsideration by
his interim government, Botha insisted on a definite an independent arbiter, Professor Norgaard, another
entrenchment of the rights of the white popula- nine were released. See Gerhard Erasmus, “Namib-
tion. In those years, especially with the rise of white ian Independence and the Release of Political Pris-
oners,” South African Yearbook of International Law,
also gathered and disseminated valuable informa- their own justiciable bills of rights. During my years
tion regarding exiles, political prisoners, and socio- of active participation, I drew up several charters
economic conditions in Namibia generally. of human rights for implementation by the busi-
21. For instance, in these original proposals, ness communities and other organizations. During
it was foreseen that political parties would have the these years, I also had frequent informal contact
authority to recall their disobedient members in with SWAPO and ANC leaders; because I was a
the legislature. Such a proposal was dropped from teacher of constitutional law at the University of
the final SWAPO proposals. South Africa, the world’s pioneering university for
22. On matters such as emergency powers as distance teaching, it happened that SWAPO and
well as the powers of the executive, regional, and lo- ANC leaders in exile or prison knew my writings
cal governments, the SWAPO proposals were very and teachings, as many of them, including Nelson
cursory, no doubt because the proposals had to be Mandela, were my students.
produced in such a very short time. 27. It was rumored at that time that some
23. Constituent Assembly Resolution of No- members of the constituent assembly felt that the
vember 21, 1989. panel of drafters, in drafting a complete constitu-
tion, went beyond the limits of their mandate. This
24. The only members with serious misgiv-
author, however, could never discover the grounds
ings about the SWAPO proposals and the decision
for their objections. It is presumed that some mem-
to use them as a working document were the repre-
bers—especially those of the minority opposition
sentatives of the two white minority parties. On the
parties who previously had positions of power and
other hand, they realized that their objection would
influence—hoped that the constitution-making pro-
have no effect, as resolutions of the constituent as-
cess would take much longer so that they could
sembly, in accordance with Resolution 435, were to
settle their affairs under the existing regime. The
be taken with a two-thirds majority.
promptness with which the panel of drafters pre-
25. In fact, on November 20, 1989, the Her- sented them with a fully-fledged constitutional draft
ero council issued a statement that it was not pre- certainly took them by surprise.
pared to accept an Ovambo government.
28. During its first meeting in November
26. Justice Chaskalson is one of South Af- 1989, the constituent assembly resolved to have
rica’s most prominent and respected lawyers; for the constitution adopted by a two-thirds majority.
years he excelled as a human rights lawyer and was However, since complete consensus was reached,
a leader in the field of legal aid movements. He applying this resolution became unnecessary.
gained a reputation as one of the country’s staunch-
29. This was most remarkable, as at the com-
est opponents of apartheid, and in the 1950s and
may be discriminated against on the grounds of sex, the 1960s to 1989 and was elected by the assembly
race, colour, ethnic origin, religion, creed or social or as Namibia’s first head of state.
economic status.” Discrimination on the ground of 39. There are eleven ethnic groups in Na-
sex was mentioned first and foremost because the mibia: the Ovambo, Kovango, Caprivians, Hereros,
only woman member of the committee felt strongly Damara, Tswana, Nama, Coloureds, the Basters (a
that discrimination on the ground of sex was worse small group of mixed European and indigenous
than any other kind of discrimination. The other origin), the Bushmen, and the Whites. Being such
members of the committee, all males, agreed. In the a small population, Namibians were familiar with
committee, individual personalities were significant, the leadership of the various groups. It was amazing
and again, it was Dirk Mudge who gave direction at the time of constitution making how well those
and guidance in many respects. It was clear that no leaders knew each other, even though some of them
proposal would get full support, not even among all spent years in exile.
SWAPO members, if Mudge himself did not sup-
40. Whites in Namibia became greatly at-
port it.
tached to their new country over the years, which
32. S/20967/add 2. SC Document. explains why, after independence, there was no sig-
33. It was considered inappropriate and po- nificant exodus of whites from the country. More-
litically incorrect that the new president should be over, many of the white leaders, especially those who
sworn in by the South African head of state, as such joined the DTA, regarded themselves as very much
an act would have created the impression that Na- part of the independence processes. This, however,
mibia was a former colony of South Africa. does not deny that for many years, the majority of
34. The 1968 constitution was also an act of whites in Namibia strongly supported the National
defiance in the face of the UN General Assembly, Party of South Africa and were loyal members of
which unilaterally revoked the mandate in 1966. the National Party of South West Africa, which was
35. The elections for homeland governments in all respects a daughter party of the South African
were poorly supported, especially when resistance party. This also explains why the rift in the party
to the application of these South African apartheid that occurred when the DTA was formed was such
policies grew. The political formations that partici- a traumatic and bitter experience for many whites.
pated in these homeland elections were generally 41. As a result of South Africa’s war efforts
very rudimentary and, for the most part, organized on the northern borders, the transport and commu-
and funded by the South African government in nication systems in the northern outreaches became
Pretoria. very advanced. This factor, namely the development
36. In those earlier years, the Herero regu- of an excellent infrastructure, served the election
arranged. This is mentioned to demonstrate con- The Constitution will determine the organi-
cretely that not all the conference participants were zation and powers of all levels of government. It
paid puppets of the South African government, as will provide for a system of government with three
SWAPO averred in the years to come. branches: a legislative branch to be elected by uni-
44. The direct inspiration for this political versal and equal suffrage which will be responsible
move was the 1974 report of the special UN del- for the passage of all laws; and an independent ju-
egate, Dr. Esscher, and his recommendation that fu- dicial branch which will be responsible for the in-
ture independence of the territory should be worked terpretation of the Constitution and for ensuring its
out by the people themselves in the exercise of their supremacy and the authority of the law. The execu-
right to self-determination. See O’Linn, Namibia, tive and legislative branches will be constituted by
p. 82. The South African government always insisted periodic and genuine elections which will be held
that their apartheid and homeland policies were in- by secret vote.
tended to afford other ethnic groups the opportunity The electoral system will seek to ensure fair
to give effect to their right to self-determination. representation in the Constituent Assembly to dif-
ferent political parties which gain substantial sup-
45. When open conflict between members
port in the election.
occurred and it seemed that the conference itself
There will be a declaration of fundamental
was in jeopardy, recourse would be had to prayer.
rights, which will include the rights to life, personal
After praying, members were more pacified and
liberty and freedom of movement; to freedom of
the debate could continue on a more conciliatory
conscience; to freedom of expression, including
note. Traditionally in Namibia, all official meet-
freedom of speech and a free press; to freedom of
ings as well as party political rallies, gatherings, and
assembly and association, including political par-
proceedings were opened by prayer. The Namibian
ties and trade unions; to due process and equality
population is overwhelmingly Christian, and the
before the law; to protection of arbitrary depriva-
churches wielded much influence in political affairs,
tion of property or deprivation of private property
with church leaders often assuming party political without just compensation; and to freedom from
roles. Pastor Cornelis Njoba, who was assassinated racial, ethnic, religious or sexual discrimination.
in 1985, was president of the DTA. The declaration of rights will be consistent with the
46. Bushmen members of the DTA remained provisions of the Universal Declaration of Human
in politics, and two of them eventually became Rights. Aggrieved individuals will be entitled to
members of the independent Namibian legislature. have the courts adjudicate and enforce these rights.
The history of the Bushmen’s role in the Namibian It will be forbidden to create criminal offences
constitutional process proves how strongly emanci- with retrospective effect or to provide for increased
bill of rights would afford to them convinced the when the right-wing white parties and Zulu-based
former National Party members of the constitu- Inkatha Freedom Party initially refused to join or
tional assembly to vote for adopting the constitu- later threatened to withdraw from the process.
tion, notwithstanding the severe reservations they 56. South Africa, perhaps justifiably, main-
had in many other respects. As it turned out, these tained that Walvis Bay was never included in the
very same members, after independence, fulfilled mandated territory and therefore fell outside UN
valuable roles as part of the opposition to the gov- jurisdiction. The constitution, in a sense, preempted
ernment, and were—and still are—held in high gov- the whole matter, including in art. 1(4) the Walvis
ernment and public regard. Bay enclave in its identification of Namibian state
51. Immediately after the elections, there were territory. After independence, South Africa and Na-
rumors of malpractices and election fraud. This was mibia, through agreement and international conven-
to be expected, as the elections evoked much fervor tion, settled the matter and the Walvis Bay enclave
and raised many expectations. However, the special was incorporated into Namibia.
representative’s certification ended these rumors, 57. Art. 144 of the constitution, therefore,
and during the process of actual constitution mak- does away with the requirement of express incorpo-
ing, the distribution of power among the parties that ration by act of parliament. See Gerhard Erasmus,
resulted from the elections was never contested. “The Namibian Constitution and the Application
52. See Ahtisaari, “Foreword,” p. xi: “As for of International Law,” South African Yearbook of In-
South-African co-operation, mutual suspicion was ternational Law, vol. 15 (1989–90), p. 90.
prevalent at the beginning, but there was a steady 58. See Wiechers, “Namibia,” p. 17.
relaxation, especially, I believe, as the objectivity and 59. This clear breach of the constitution was
professionalism of UNTAG became accepted. At a justified on the ground that the president’s first
number of levels, the co-operation was excellent.” election was not by direct popular suffrage, but by
53. Art. 145(2) of the constitution. the new national assembly, whereas the constitu-
54. For instance, Captain Hendrik Witbooi tion prescribed two terms of office by virtue of di-
of the Namas was vice-president of SWAPO, and rect, popular suffrage. This clearly goes against the
both the later prime minister (Mr. Geingob) and original intent. Surely, a presidential term of office
minister of foreign affairs (Mr. Ben-Guriab) were is a term of office, notwithstanding the method of
Damara. election.
55. In a real sense, this is what happened in 60. O’Linn, Namibia, p. 390.
the South African constitution-making process