FACULTY Faculty of Law

DEPARTMENT Public Law and Jurisprudence

SUBJECT Constitutional Law
SUBJECT CODE JCS 3510
STUDY MODE All
DUE DATE 8 August 2019
MARKS 85
STUDENT NAME Mishozi Madeleine Chikusi
STUDENT NUMBER 201707293
Table of contents
Summary of the case…………………………………………………………………1

Principles of constitutionalism found in the Namibian Constitution……………...2

The Rule of law according to the judgement……………………………………………….3

References…………………………………………………………………………….5
S v Hanse-Himarwa (CC 05-2018) [2019] NAHCMD 229 (08 July 2019)

Summary of the case

The accused is charged with a contravention of s 43(1) of the Anti-Corruption Act 8 of 2003.
It is alleged that the accused corruptly used her office or position corruptly in order to obtain
gratification for two of her relatives. The charge stems from an incident where the accused,
at the time as the Governor of the Hardap Region, caused the names of two persons to be
removed from the list and to be substituted with two of her family. The accused pleaded not
guilty by denying the allegation, claiming that she was not empowered to do so.
Furthermore, she alleged that she could not have a fair trial due to the manner in which the
investigating officers of the Anti-Corruption Commission conducted themselves by
influencing state witnesses to incriminate the accused, withholding evidence from the
Prosecutor-General during the stage of referral for possible prosecution. This is mainly
based on witness statements being similar in respect of the duplication of some words or
sentences used in some of the statements. The officers unduly influenced state witness by
applying pressure on them to incriminate the accused when making their statements.

The legal issue in this regard would be that whether or not the accused assumed power and
authority over the selection process when exerting her authority and that of her office as
Governor to compel the selection committee to amend the list of beneficiaries as per her
directive.

The Court held that the accused’s intervention, being a public officer, falls within the ambit of
the ordinary meaning attributed to act corruptly. It was then held that, in the present instance
the duplication in the statements only concerns peripheral matters limited to the selection
process not implicating the accused. The Court also held that the taking of notes by the
investigating officer during interviews with state witnesses and drafting of statements from
the notes did not constitute an irregularity.

Furthermore, the consolidation of the four statements into in of one of the state witnesses
was not irregular. The explanation by the investigating officer is reasonable as there was no
reason for the officer to hide the statements due to any irregular changes made thereto or to
withhold information favourable to the accused.

The Court then came to the conclusion that section 31 (1) of the Anti-Corruption Act 8 of
2003 had been complied with as there is no evidence about statements not forming part of
the docket when forwarded to the Prosecutor-General for consideration. Further that, the
evidence did not establish that any undue influence had been exerted by investigating
officers on state witnesses to align their statements in order to incriminate the accused.
Moreover that, though the selection process might not have satisfied the applicable criteria
and therefore reviewable in terms of Article 18 of the Constitution and no application made to
have the process reviewed, the court held that it is not the court’s function or duty during
criminal proceedings to make any finding in that regard. Further that, the accused was
correctly charged with a contravention of section 43(1) of the Anti-Corruption in that she
assumed power and authority over the selection process when exerting her authority and
that of her office as Governor to compel the selection committee to amend the list of
beneficiaries as per her directive. Further that, the accused’s intervention, being a public
officer, falls within the ambit of the ordinary meaning attributed to act corruptly. 1

Principles of constitutionalism found in the Namibian Constitution

1. Separation of Powers. The Namibian constitution creates three different branches of

government. Namely, the executive branch which consists of the President and
Cabinet; the legislative branch which consist of Parliament and the judicial branch
which consist of the Courts. The preamble of the Namibian constitution stipulates that
the executive branch of government is entirely separated from and is independent of
the legislature and judicial branches of government. The Separation of powers helps
protect the rights of the people of Namibia.
2. Judicial review of administrative action. Article 18 of the Namibian Constitution
provides that administrative bodies and administrative officials shall act fairly and
reasonably and shall comply with the requirements imposed upon such bodies and
officials by common law and any relevant legislation.2
3. The Rule of Law. The doctrine of the rule of law deals with governance according to
law and the protection of the fundamental rights of an individual. According to the
doctrine A.V Dicey which stipulates that no man is above the law whatever his rank
or condition is subject to the ordinary law of the realm and amended to the
jurisdiction of the ordinary tribunals. Under Chapter 3 of the Namibian Constitution
these fundamental rights and freedoms are enshrined and entrenched. Under Article
25 of the Namibian Constitution, the courts are given the power to declare any law or
any action of the Executive and agencies of the government that is inconsistent with
the provisions of Chapter 3, invalid.
4. Supremacy of the constitution. The Namibian constitution provides that the
constitution shall be the supreme law of Namibia. The implication of the Supremacy

1
S v Hanse-Himarwa (CC 05/2018) [2019] NAHCMD 229 (08 July 2019)

2
Amoo, S.K. 2008. An Introduction to Namibian Law. Namibia: MacMillan Education Namibia
Publishers (Pty) Ltd.
 clause is that any law enacted by the legislature or any action taken by the executive
must be in line with the constitution.
5. Irregularity subject to Review. According to the Namibian constitution and the law of
administration, any government activity such as in the form of a decision taken is
subject to review for the purpose of the lawfulness of a decision or action made by a
public official. It is a challenge to the way in which a decision was made rather than
the rights and wrongs of the conclusion reached.

In my opinion the accused was correctly charged with contravention of section 43 (1) of the
Anti-Corruption Act in that she assumed power and authority over the selection process
when exerting her authority and that of her office as Governor to compel the selection
committee to amend the list of beneficiaries as per her directive. The rule of law is the most
relevant principle of constitutionalism in my opinion.

The Rule of law according to the judgement.

The judgement is a clear illustration that no man is above the law and that no man no matter
what his condition or rank, is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals. The accused was subjected to a fair trial and
punishment and equality before the law and the provision of the enforcement of human
rights. It was outlined in the case of Pharmaceutical Manufacturers Association of South
Africa: Ex Parte President of the Republic of South Africa 2000 (1) SA 674 (CC) that
governmental powers can only be exercised in accordance with the law not arbitrarily or
capriciously. This means that every act of government or its officials must have a valid
foundation in the law and that in acting the government must not exceed its powers or act
without constitutional or statutory authority.3 The exercise of governmental acts must be
subject to review by the courts of law so that there must be access for ventilation of disputes
and grievances4.

The rule of law also stipulates that the law should conform to certain minimum standards of
justice both substantively and procedurally. Article 12 of the Namibian prescribes the
standard for the ascertainment of procedural justice whereas article 18 not only guarantees
standards of substantive governmental behaviour in relations between the administration
and the citizen but of procedural justice as well in those regards. 5 Without the rule of law,
people with the most money and power would be able to do what they want and as they
please. Police and government officials and powerful companies could act as they please.
3
Pharmaceutical Manufacturers Association of South Africa 2000 (1) SA 674 (CC)
4
Oliver. 1994. Constitutionalism in the new South Africa. South Africa’s Crisis of constitutional
Democracy
5
Erasmus, G. (2010). The Constitution: Its impact on Namibian statehood and politics. State, Society
and Democracy, 77-105.
This kind of society would be both unfair and unstable. People with money or higher
positions in society shouldn’t be allowed to buy their way out of trouble or into favour if the
rule of law is being followed. If a country has corrupt officials or corrupt courts the public
might stop respecting the law altogether.

Namibia is a three legged pot founded upon democracy, the rule of law and justice. The rule
of law also means that the laws of Namibia must be enacted through a fair and transparent
process. This is why parliament is open to the public and why all statutes enacted by
parliament are published in a bulletin called the Government Gazette which anyone can
read. The rule of law also requires respect for basic human rights that are acceptable. 6 The
High Court of Namibia has stated that the collapse of a rule of law in any country is the birth
of anarchy. A rule of law is a cornerstone of the existence of any democratic government
and should be guarded and protected.7

The principle in this regard is relevant to this judgement in the sense that all persons and
institutions including government officials must follow laws which are publicly known to
everyone, it must be applied fairly to everyone and enforced by a competent court. The
judge in this case held that in sentencing with regards to corruption the seriousness of the
offence dictates the interest of society to be given more emphasis however in sentencing the
court did not give into public expectation but rather to subject the accused to a fair trial,
being guided by the rule of law.8

In conclusion, as the above reasons illustrate that the court has reached a fair judgement
taking into consideration the mentioned principle of constitutionalism which is the rule of law
in Namibia. The Court acted fairly in the sense that accused alleged that the ACC agents
conspired with the state witnesses during the investigation stage as the statements were
similarly worded. The Similarity in witness statements was explained by the investigating
officer. Witnesses were reporting on same events. Statements drawn from notes made by
the investigating officer during interview with witnesses. The Investigating officer denied any
factual input on contents of statements and that the similarities concern issues unrelated to
the charge. Witnesses also denied alleged conspiracy and claimed ownership of their
respective statements9.

6
African Personnel Services v Government of the Republic of Namibia 2009 (2) NR 596
7
Sikunda v Government of the Republic of Namibia and Another (2) 2001 NR 86 (HC)
8
Amoo, S.K., & Skeffers, I. (2008). The rule of law in Namibia. Human rights and the rule of law in
Namibia. Windhoek: Macmillan Namibia, 17-38.
9
S v Hanse-Himarwa (CC 05/2018) [2019] NAHCMD 229 (08 July 2019)
References

Books

Amoo, S.K. 2008. An Introduction to Namibian Law. Namibia: MacMillan Education

Namibia Publishers (Pty) Ltd.

Amoo, S.K., & Skeffers, I. (2008). The rule of law in Namibia. Human rights and the
rule of law in Namibia. Windhoek: Macmillan Namibia, 17-38.

Case law

African Personnel Services v Government of the Republic of Namibia 2009 (2) NR

596

Pharmaceutical Manufacturers Association of South Africa: Ex Parte President of the

Republic of South Africa 2000 (1) SA 674 (CC)

S v Hanse-Himarwa (CC 05/2018) [2019] NAHCMD 229 (08 July 2019)

Sikunda v Government of the Republic of Namibia and Another (2) 2001 NR 86 (HC)

Statutes

Anti-Corruption Act 8 of 2003

Papers in journals

Oliver. 1994. Constitutionalism in the new South Africa. South Africa’s Crisis of
constitutional Democracy.

Erasmus, G. (2010). The Constitution: Its impact on Namibian statehood and politics.
State, Society and Democracy, 77-105.