Constitutional Supremacy

The Constitution of the Republic of Namibia provides for the supremacy of the
Constitution over all other laws. Article 25(1) states that Parliament or any
subordinate legislative authority cannot make any law, and the Executive and the
agencies of Government cannot take any action which abolishes or abridges the
fundamental rights and freedoms conferred by this Chapter. Article 81 of the
Constitution allows Parliament to overturn or contradict rulings of the Supreme Court.
This paper attempts to address the conundrums of whether Article 81 makes
Parliament a final (judicial) authority with the powers to review and/or contradict
decisions rendered by the Supreme Court, and whether it is construed as a
constitutional instrument put in place to counter the so-called counter majoritarian
dilemma. It is the author’s opinion that, whilst the legislature is, by virtue of Article 81,
empowered to contradict the Supreme Court’s decisions, this process has to be
done lawfully and in line with other constitutional provisions. The Namibian
Constitution derives its authority and powers to contradict the Supreme Court’s
decisions from Article 81. This Article stipulates that a decision of the Supreme Court
shall be binding on all other Courts of Namibia and all persons in Namibia unless it is
reversed by the Supreme Court itself, or it is contradicted by an Act of Parliament
lawfully enacted. Article 81 is a codification of the stare decisis rule, a well-known
rule of the common law, which deals with the relevance and legal force of judicial
precedents. The Supreme Court is Namibia’s apex court in all legal disputes, and its
jurisdiction is ratione materiae. Decisions of the Supreme Court have binding force
until the conditions in Article 81 kick in. This paper argues that Parliament should
amend the Constitution to achieve constitutional supremacy. It also provides
examples of the difference between constitutional and non-constitutional disputes,
such as the application of the condictio sine qua non test for factual causation and
the application of rules stipulated in the Apportionment of Damages Act for delictual
disputes. It also looks at whether a legislative provision banning the practice of
labour brokering/hiring is unconstitutional, and whether the provisions of the
legislation unjustifiably limit the rights in the Bill of Rights.
The Constitution of Namibia has special rules for constitutional amendment, which
are outlined in Chapter 19 of the Constitution. These rules require substantive
reasoning and engagement in rightness or wrongness evaluations when interpreting
them. This approach to constitutional interpretation has been confirmed in numerous
Supreme Court judgments. It is important to note that constitutional amendment is
meant to be a cumbersome procedure and should not be viewed as mere rules, but
rather as an expression of the nation's commitment to the creation of a democratic
society based on respect for human dignity, protection of liberty, and the rule of law.
The Supreme Court of the South African Constitution is an important document that
distinguishes it from a mere statute and emphasizes its importance in interpreting the
Bill of Rights. In Government of the Republic of Namibia v Cultura 2000, the court
advocated a broad liberal and purposive approach to the interpretation of the
Constitution. Article 78(1) vests the judicial authority in the Judiciary, while Article
78(2) provides that the courts are to be independent and that the Cabinet and the
legislature should not interfere in judicial functions. Additionally, Article 79 indicates
the court’s jurisdiction ratione materiae. In pursuit of the apartheid policy, Parliament
passed the Separate Representation of Voter’s Act, but with a simple majority, which
was declared invalid by the Appellate Division (AD). Parliament responded by
passing the High Court of Parliament Act (HCPA), which allowed Parliament to set
aside any past or future decisions in which the AD had declared certain legislation
invalid. The Namibian Constitution recognizes the rule of law ideal as well as its
systemic aspects, namely the separation of powers and judicial review. This means
that Parliament can make and unmake any laws without any substantive constraints,
and all legal and political acts of government inconsistent with the Constitution are
invalid. The courts have the power to invalidate such action, as they are vindicating
constitutionalism and the rule of law. The Harris judgment was declared invalid by
Parliament, and the HCPA was declared invalid on the grounds that it was
Parliament disguising itself as a court in order to do, by simple majority, what it could
not do by special majority. The amendment to the legislation was duly passed, and a
challenge to invalidate it failed in the case of Collins v Minister of Interior.

Important Historical development and events with regards to the Constitution

The Namibian Constitution is a compromise document that was not fully negotiated
by the Constituent Assembly. It was an instrument to obtain sustainable peace and
was used by the South African government to pave the way for meaningful
negotiations and, eventually, the replacement of the apartheid-based society with a
democratic dispensation. The Constitution’s replacement was done in accordance
with the principle of inclusion, rather than an “exclusionary shadow”. This was seen
in the unbanning of the African National Congress (ANC), the South African
Communist Party (SACP), the Pan-Africanist Congress of Azania (PAC), the
Azanian People’s Organisation (AZAPO) and other movements, as well as the
release of Nelson Mandela on 1 February 1990. The smooth and peaceful elections
and the acceptance of a liberal Constitution with an entrenched Bill of Human Rights
broke new grounds for negotiations in South Africa. The dream of a community of
equal people, sharing resources equally, runs like a golden cord throughout the
document. The Namibian Constitution was established in accordance with the
Universal Declaration of Human Rights in 1978. Two important international
decisions, the UN Security Council Accepting Resolution 435 in 1978 and the
Western Contact Group drafting the Constitutional Principles in 1981, had a decisive
influence on the content of the Namibian Constitution. In 1978, the UN Security
Council accepted Resolution 435 as a basis for Namibia’s independence, which was
elaborated into an extensive plan including UN-supervised elections, the
disarmament of the South West African Territorial Force (SWATF) and the
confinement to base of the People’s Liberation Army of Namibia (PLAN). In 1981,
the UN sponsored the pre-implementation conference for Security Council
Resolution 435 in Geneva, where a South African delegation under the leadership of
the Administrator-General for South West Africa, Danie Hough, including 30
Namibian leaders from internal parties, met Sam Nujoma and a SWAPO delegation.
The election victory of the Zimbabwe African National Union – Patriotic Front (ZANU-
PF) under Robert Mugabe in Zimbabwe in March 1980 was a major shock to the
negotiations for Namibia’s independence. The Namibian Constitution was
established in the Transitional Government for National Unity (TGNU) in South
Africa. After a three-phase negotiation proposal on the Namibia question, the
process broke down when one of the internal parties, the Democratic Turnhalle
Alliance (DTA), presented the UN with a list of demands to stop its proSWAPO
approach. The WCG then worked on constitutional principles that would ease the
fears of whites and be acceptable to all parties involved, including a Bill of Rights as
part of the latter, an independent judiciary, and a multiparty democracy. Although
SWAPO initially rejected the Constitutional Principles, they eventually agreed that
the document could become the foundation for the independence process and the
Namibian Constitution. At the first meeting of the Constituent Assembly on 21
November 1989, Theo-Ben Gurirab of SWAPO proposed that the Assembly adopt
the Principles as a “framework to draw up a Constitution for South West
Africa/Namibia”, which was adopted unanimously.

The 1982 Principles of Namibia, included with Resolution 435, have remained part of
Namibian and international law even after the country's independence and the
implementation of the Constitution. They are a legally enforceable Resolution of the
Security Council that can be invoked by interested parties and UN member states.
The Principles became the precondition upon which the Namibian Constitution and
the institutions of state were to be founded when the Constituent Assembly adopted
them in 1982. According to Wiechers, the 1982 Principles cannot be changed or
amended, and any amendment to the Constitution that goes against the 1982
Principles is de facto unconstitutional. In the early years after Independence, the
status of the 1982 Principles was raised on a regular basis, with one of the major
tenets of the Principles, namely the independence of the judiciary, being interpreted
broadly to include the prosecutorial authority. The 1982 Principles of Namibia
included the protection of land and property rights, which was part of the settlement
agreement between South Africa and SWAPO in 1989. The High Court later relied
on the Principles, but stated that Wiechers’ position was questionable. The white
farmers often refer to the protection of property rights in Article 16 of the Constitution
as a settlement agreement between themselves and the new SWAPO government
at Independence. While the Constitution has become the basis for property rights,
the 1982 Principles will always feature in the background of the land issue, either to
motivate the thesis that foreign countries prevented Namibia from dealing with the
land issue in a responsible manner, or as part of the idea that the protection of
property rights was part of the settlement that led to independence. South Africa, the
DTA and its allies embraced the Constitutional Principles from the outset. The
Principles Concerning the Constituent Assembly and the Constitution for an
Independent Namibia were formed by the UN Security Council in 1982. SWAPO,
however, did not accept them immediately and was only reacting to the idea that
Western countries were prescribing the form of government in Africa. The idea of a
Bill of Rights as part of a future Namibian Constitution did not originate with the
WCG, but rather from the early 1970s. In response to the Turnhalle Conference,
SWAPO released a Discussion Paper on the Constitution of an independent
Namibia, which closely resembled the draft that SWAPO eventually took to the
Constituent Assembly after the UN-supervised elections in 1989. The document
opted for a unitary state and rejects any notion of “Bantustans masquerading as
federalism”.

The tension between judicial review and democracy is reconcilable, as the Namibian
Constitution endorses democracy and the rule of law. To discharge this duty, judges
must identify an interpretive theory that strikes a balance between the competing
principles of democracy and the rule of law. Ronald Dworkin's argument suggests
that the enforcement of constitutional principles by independent judges is a
necessary element of a legitimate democracy. The purposive approach has been
endorsed in various constitutional decisions. Article 81 of the Namibian Constitution
must be read in conjunction with other constitutional provisions to better understand
its content and essence. The Supreme Court ruling in the case of Africa Personnel
Services (Pty) Ltd v Government of the Republic of Namibia highlights the
importance of considering the intentions of the framers of the Constitution and both
teleological and purposive approaches of interpretation. The Africa Personnel
Services judgment is a constitutional judgment, as it turned on the scope and content
of Article 21(1)(j) of the Constitution. If Parliament wishes to lawfully prohibit labour
brokering, they will have to amend the Constitution to extricate the practice of labour
brokering from the content of Article 21(1)(j). However, even if Parliament does
amend the Constitution, the matter is still open for the argument that the freedom in
Article 21(1)(j) is beyond Parliament's reach.