- May 18, 2022
- |Law Everyday
ENFORCE ALL LAWS, FOR SOVEREIGNTY’ SAKE
Article 1 of the Namibia Constitution establishes the Republic of Namibia as (1) a sovereign, secular, democratic, and unitary State founded upon the principles of democracy, the rule of law, and justice for all, of which (2) all power shall vest in the people who shall exercise their sovereignty through the democratic institutions of the State. The word ‘sovereign’ is used 6 times in the Constitution while ‘sovereignty’ is used 4 times, that’s 10 times in total. Whenever ‘sovereign’ or ‘sovereignty’ is used in the Constitution, it is in respect of power, authority, function, or rights that should be exercised by the State or its people, exclusively over the affairs of Namibia. For example:
a) The Preamble recognises that rights are most effectively protected under a sovereign State operating under a sovereign Constitution;
b) Article 21(2) places lawful restrictions on fundamental rights which are required in the interest of sovereignty and integrity of Namibia;
c) Article 30 requires the President-elect to take an oath or affirmation that they will protect the independence, sovereignty and integrity and the material and spiritual resources of Namibia;
d) Schedule 2, Part A requires the Vice-President, Prime Minister, and Deputy Prime Minister to take the same oath or affirmation above; and
e) Article 100 vests ownership of all natural resources in the State, unless such resources are lawfully owned by someone else.
According to Klinger, et al (2016), Namibia and the United Nations: A Turning Point in the Understanding of National Sovereignty) the United Nations’ response to the colonization of South West Africa represented a fundamental change in the traditional view of sovereignty that the sovereign ruler has the right to govern his own territory; to the modern view, that people have the sovereign right to self-determination. This shift is reflected in Articles 1(1) and (2) of the Namibian Constitution as it first established a sovereign State and then vested all power to exercise such sovereignty in the people. Sovereignty is the power and right, recognized or effectively asserted in respect of a defined territory, to govern in respect of that territory to the exclusion of other nations. Outside of this territory, a State is generally restricted to controlling the activities of its citizens and vessels or planes registered in its territory (Dr McGrath, 2018).
To me, this is the beginning and the end of a State as a State only exists because it set itself apart, in words and in deeds, from other nations, who recognize it as such, to exercise ultimate lawful control over its territory. One important manifestation of sovereignty is a state’s ability to make and enforce laws, he two giving effect to each other. In other words, a State cannot just make laws, it must be able to enforce them, equally so, because all persons shall be equal before the law (Article 10). For all intents and purposes, people/persons include natural and juristic persons, citizens, and non-citizens, subject to lawful limitations.
To bring the point home, Douglass (2001), A Framework of Norms: International Human Rights Law and Sovereignty defines sovereignty in its international dimension as, “the right of a state to rule itself and those who live within its territory, to choose its own constitution, form of government, and economic system; to write and enforce its own laws; to exercise a territorial monopoly on publicly sanctioned use of force through its police and military; to set its own taxes and allocate the spending of government revenues; to exercise police powers to regulate the economy and society, and to enter into agreements with other states. A state that can do all these things, unfettered by outside dictates or interference, enjoys full sovereignty; a state that is not free to exercise these powers is, to that degree, not sovereign.” (My emphasis).
Having referred to that, I wish to point out that, in my opinion, there is generally no problem in ‘using police and military force’ or in ‘exercising police powers to regulate the economy and society’, the problem lies in enforcing other laws that do not necessarily require police or military force, for example:
a) Immigration laws should be enforced by immigration officials and tribunals;
b) Labour laws should be enforced by Labour Inspectors (officials) and institutions that fall under the Ministry of Labour;
c) Social Protection should be enforced through the ministries responsible for Labour, Gender, Social Welfare and Poverty through officials and institutions under them;
d) Tax and financial laws should be enforced by the ministry responsible for Finance through institutions and officials under it; and
e) In the administration of justice space, it has been held that the courts can only exercise jurisdiction if it can also enforce its judgement – doctrine of effectiveness.
The list does not end there, suffice to say that all these are aspects of law enforcement without which the very sovereignty of a country would be cast in doubt. Therefore, there must be inexhaustible efforts to ensure that all laws are enforced, not just by the police or military, but by all those enjoined by the Constitution or Acts of Parliament to protect the sovereignty of this country. The lack of capacity to enforce laws in the aspects highlighted above undermines sovereignty internally and externally. Internally, it can promote lawlessness and a culture of taking the law in own hands. The phenomena of activists shutting down businesses, mass demonstrations and #LivesMatter movements can be attributed to this. Externally, a State will simply not be respected.
The other problem arises when the law is not enforced equally among subjects. I believe this equally undermines sovereignty. A full bench of the High Court had this to say in Digashu v GRN & Seiler-Lilles v GRN (20 January 2022):
‘In a functioning democracy, founded on a history such as our own, coming from a system of unreasonable and irrational discrimination, to obtain freedom and independence, and then to continue to take away human rights of another segment irrationally and unjustifiably of Namibian citizenry, simply because of their orientation – amounted to cherry-picking of human rights, and deciding whose rights are more “human”, and to be protected, more than others. This is not what our democracy was founded upon.’
As one friend wrote, “we have no lack of laws in Namibia, but enforcement is a huge problem” to which I must add that this huge problem is being reported every day. Therefore, it is incumbent on the State to ensure that all laws are enforced equally, for sovereignty’s sake.
Fedden Mainga Mukwata – Legal Pundit