- December 1, 2022
- |Law Everyday
Article 140 of the Constitution of Namibia provides that “subject to the provisions of this Constitution, all laws which were in force immediately before the date of Independence shall remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent Court”. In terms of Article 66, “both the customary law and the common law of Namibia in force on the date of Independence shall remain valid to the extent to which such customary or common law does not conflict with this Constitution or any other statutory law.”
This means that as of 21 March 1990, an independent Namibia was going to be governed, and its people were to conduct themselves, and be dealt with, in terms of a set of laws comprised of Acts of Parliament passed before independence by the Apartheid government, customary law practiced by the traditional communities of Namibia, and common law established over centuries by colonial masters, provided that such laws were not repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent Court or does not conflict with this Constitution or any other statutory law. New laws would, as a matter of course, be passed, developed, and interpreted in an independent Namibia to form part of the legal system which we have today.
My focus in this opinion piece is on the fact that the law has the power to shape society. Thus, when the constitutional drafters decided to insert Articles 140 and Article 66 in the Constitution, they basically set the tone for how a typical Namibian should behave, in compliance or non-compliance with the law, and how he/she/it would be dealt with, in enforcing such laws. This undoubtedly shapes a society in a certain way, as behavior becomes habits, habits become lifestyles and lifestyles become customs, and eventually the very things that a community of people is known for. Before I delve further into the point I want to make, l wish to state at this juncture that the Apartheid government had a complete legal system by the time Namibia gained independence. Having a ‘parliamentary sovereignty’, they passed laws at a faster rate to deal with almost every aspect of the life of its subjects, and these are the laws Article 140 says shall remain in force. I must also state
that the common law system was a complete system having been developed (and documented through case law) over centuries by the colonial masters, and, so were customary laws, albeit unwritten. It is also important to note that in line with the caveat placed on the continued application of such laws, a few laws have been repealed, amended, or declared unconstitutional after independence, albeit not at the rate at which the Apartheid government legislated!
The point is this, the law which continued to be in force after independence has over the past 32 years influenced the way we behave, and they will continue influencing our conduct for as long as they remain in force. This can be observed, in my opinion, from the fact that most people who hail from north of the red line, would prefer to get married there, even if they live elsewhere beyond the red line. This is partly because in terms of the Native Proclamation 15 of 1928, marriages north of the red line are automatically out of community of property, and marriages beyond the red line are in community of property (unless certain prior declarations are made). There could be other reasons, but do you realize that a decision to get married must be made intentionally and geographically? I am not saying all laws are bad, some are good laws. What I am saying is that whether the law is good or bad, it will have an influence on society for as long as it is in force. For example, before section 4(1) of the Squatters Proclamation of 1985 was declared unconstitutional in Shaanika & Others v Windhoek City Police & Others 23 years after independence, it was perfectly normal for owners of land to demolish and remove buildings or structures erected without their consent or contrary to legal requirements, without a court order. However, this also means that all the owner of the land needs now is a court order to demolish and remove such buildings or structures, as it appears to have been the case in respect of Lwanyanda demolitions at Katima Mulilo. This is against the backdrop of human rights guarantees in the Constitution.
Another example is the issue of homosexual relationships in Namibia. In 2001, the Supreme Court held in Chairperson of the Immigration Selection Board v Frank 2 that same-sex relationships are not legal in Namibia; that the right to family entrenched in article 14 of the Constitution also did not include same-sex relationships. But, in Digashu v Government of the Republic of Namibia and Seiler-Lilles v Government of the Republic of Namibia (20 January 2022), three judges of the High court stated that it was time to recognize that homosexuality is part and parcel of the fabric of society and that persons in homosexual relationships are worthy of being afforded the same rights as other citizens. In conclusion, the court held in the above matter that ‘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 irrationally and unjustifiably take away human rights of another segment of Namibian citizenry….amount[s] 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.’
Therefore, those who are in the business of making laws must be mindful that they have a bigger responsibility.
Download Law Everyday – Volume 7 of 2022
Fedden Mainga Mukwata – Legal Pundit