- January 18, 2022
- |Law Everyday
WHETHER THE LAW PROVIDES FOR PREFERENTIAL TREATMENT ON ACCOUNT OF PATRIOTIC CREDENTIALS?
Commenting on the Capitol riots of 6 January 2021, Trevor Noah, of The Daily Show posted ‘it’s so interesting how people were calling black people animals when the George Floyd protests were happening. But when the insurrections were [happening] in the [US] Capitol, Fox News was like “these brave Patriots are just expressing their frustration and standing up for American democracy”’. Tendi (2008): Patriotic History and Public Intellectuals Critical of Power, wrote “Patriotic history proclaims ZANU-PF as the alpha and omega of Zimbabwe’s past, present, and future. Zimbabweans are encouraged to be ‘patriotic’ which means supporting ZANU-PF. Anything short of this is considered ‘unpatriotic”.
Patriotism refers to deep love, the quality of being patriotic; devotion to and vigorous support for one’s country, or devoted love, support, and defence of one’s country; national loyalty. There is no doubt that immense sacrifices were made for the good cause of the independence of Namibia or any other country, and to that end, the Constitution recognizes in its Preamble that rights were for so long denied to the people of Namibia by colonialism, racism, and apartheid, and the people of Namibia having finally emerged victorious in the struggle against colonialism, racism, and apartheid:
➢ are determined to adopt a Constitution which expresses for ourselves and our children our resolve to cherish and protect the gains of our long struggle;
➢ desire to promote amongst all of us the dignity of the individual and the unity and integrity of the Namibian nation among and in association with the nations of the world;
➢ will strive to achieve national reconciliation and to foster peace, unity, and a common loyalty to a single state;
➢ …constitute the Republic of Namibia as a sovereign, secular, democratic, and unitary State securing justice, liberty, equality, and fraternity to all our citizens.
The Constitution pays homage to the past and at the same time provides for the present and the future. Most importantly, the Constitution promises provision for all citizens justice, liberty, equality, and fraternity. This simply means that we all should have equal protection and opportunity. The Constitution being the supreme law imposes this requirement on all the other laws, and any law that states otherwise would be unconstitutional. In that context, I would like to refer to the following extracts from two gallant Sons of the soil:
“In Namibia … we are clear … No exploitation of man by man.
That will not be allowed here.”
Sam Nujoma, during an interview (Nujoma 2003: XIII)
“The Policy of National Reconciliation has served our people well. Instead of retributions and backlash, we have created a stable society where our people work together for the achievement of our common goals of economic development and the improvement of the living standards of all our people.”
Hifikepunye Pohamba, in his address to the nation on the 17th anniversary of independence, 21 March 2007.
According to Melber (2007) Poverty, politics, power, and privilege: Namibia’s black economic elite formation, soon after taking office, President Pohamba used a rally in commemoration of Cassinga Day for ‘a national alert’ on corruption, asking for support for his government’s drive to root out graft. He claimed that those who fought for independence and freedom did not sacrifice their lives so that other Namibians could enrich themselves through corruption, but for the country to be developed for the benefit of all Namibians. He warned that greed had become akin to colonialism. Those guilty of corruption not only erode the national fabric but also loot resources that could be used to alleviate poverty and create jobs. In my opinion, we need to observe the areas where State resources are at play, such as land, resettlement, and the remuneration of managers in parastatals and municipalities who, according to Melber base their access to the country’s public purse on political or public sector offices and benefit from direct preferential treatment; access to loans at public lending entities; the fisheries sector, among others. In Chairperson of the Immigration Selection Board v Frank and Another 2001 NR107 SC, O’LINN AJA wrote:
“The [High] Court was clearly impressed by the assistance the applicant gave…in the pre-independence period and as a member of the anti-apartheid movement. The Court further stated:
“Despite a life-long dedication to the democratic cause of Namibia, its trials and tribulations, its struggles and its successes, the respondent repeatedly refused to grant first respondent permanent residence and refused to provide her with reasons for their decision.”
It seems that the Court expected the Board to give the applicant more favourable or preferential treatment on account of the aforesaid patriotic credentials. If the Board did so, it may have been accused by others of breaching the fundamental right to non-discrimination and equality before the law provided for in Article 10 of the Namibian Constitution. But even if the aforesaid patriotic past was a relevant consideration for the Board, it would have been in the Board’s discretion how to evaluate it and what weight to be given to it.”
If it is not legislated, thereby passing the Constitutional test, there is no basis in law for preferential treatment on account of patriotic credentials.
Fedden Mainga Mukwata – Legal Pundit