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NAMIBIA CONSTITUTION
{ Adopted on: Feb 1990 }
{ ICL Document Status: Feb 1990 }
Preamble
Whereas recognition of the
inherent dignity and the equal and inalienable rights of all
members of the human family is indispensable for freedom, justice and peace;
Whereas the said rights include the right of the individual to life, liberty
and the pursuit of happiness, regardless of race, colour {color},
ethnic origin, sex, religion, creed or social or economic status; Whereas the
said rights are most effectively maintains and protected in a democratic
society, where the government is responsible to freely elected
representatives of the people, operating under a sovereign constitution and a
free and independent judiciary;
Whereas these rights have for so long been denied to the people of Namibia by
colonialism, racism and apartheid;
Whereas we the people of Namibia -
have finally emerged victorious in our struggle against colonialism, racism
and apartheid;
are determined to adopt a Constitution which expresses for ourselves and our
children our resolve to cherish and to 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;
committed to these principles, have resolved to constitute the Republic of
Namibia as a sovereign, secular, democratic and unitary State securing to all
our citizens justice, liberty, equality, and fraternity.
Now therefore, we the people of Namibia accept and adopt this Constitution as the
fundamental law of our Sovereign and Independent Republic.
Chapter I The Republic
Article 1
[Establishment of the Republic of Namibia and Identification of its
Territory]
(1) The Republic of Namibia is hereby established as a sovereign, secular,
democratic and unitary State founded upon the principles of democracy, the
rule of law and justice for all.
(2) All power shall vest in the people of Namibia who shall exercise their sovereignty through the
democratic institutions of the State.
(3) The main organs of the State shall be the Executive, the Legislature and
the Judiciary.
(4) The national territory of Namibia shall consist of the whole of the territory
recognised by the international community through the organs of the United
Nations as Namibia, including the enclave, harbour and port of Walvis Bay, as well as the off-
shore islands of Namibia, and its southern boundary shall extend to the
middle of the Orange River.
(5) Windhoek shall be the seat of central Government.
(6) This Constitution shall be the Supreme Law of Namibia.
Article 2 [National
Symbols]
(1) Namibia shall have a National Flag, the description of
which is set out in Schedule 6.
(2) Namibia shall have a National Coat of Arms, a National Anthem
and a National Seal to be determined by Act of
Parliament, which shall require a two-thirds majority of all the members of
the National Assembly for adoption and amendment.
(3)(a) The National Seal of the Republic of Namibia shall show the Coat of Arms circumscribed with the word
"NAMIBIA" and the motto of the country, which
shall be determined by Act of Parliament as aforesaid.
(b) The National Seal shall be in the custody of the President or such person
whom the President may designate for such purpose and shall be used on such
official documents as the President may determine.
Article 3 [Language]
(1) The official language of Namibia shall be English.
(2) Nothing contained in this Constitution shall prohibit the use of any
other language as a medium of instruction in private schools or in schools
financed or subsidised by the State, subject to compliance with such
requirements as may be imposed by law, to ensure proficiency in the official
language, or for pedagogic reasons.
(3) Nothing contained in Paragraph (1) shall preclude legislation by
Parliament which permits the use of a language other than English for
legislative, administrative and judicial purposes in regions or areas where
such other language or languages are spoken by a substantial component of the
population.
Chapter II Citizenship
Article 4 [Acquisition
and loss of Citizenship]
(1) The following persons shall be citizens of Namibia by birth:
a) those born in Namibia before the date of Independence whose fathers or
mothers would have been Namibian citizens at the time of the birth of such
persons, if this Constitution had been in force at that time; and
b) those born in Namibia before the date of Independence, who are not
Namibian citizens under Paragraph (a), and whose fathers or mothers were
ordinarily resident in Namibia at the time of the birth of such persons:
provided that their fathers or mothers were not then persons:
aa) who were enjoying diplomatic immunity in Namibia under any law relating
to diplomatic privileges; or
bb) who were career representatives of another country; or
cc) who were members of any police, military or security unit seconded for
service within Namibia by the Government of another country: provided further
that this paragraph shall not apply to persons claiming citizenship of
Namibia by birth if such persons were ordinarily resident in Namibia at the
date of Independence and had been so resident for a continuous period of not
less than five (5) years prior to such date, or it the fathers or mothers of
such persons claiming citizenship were ordinarily resident in Namibia at the
date of the birth of such persons and had been so resident for a continuous
period of not less than five (5) years prior to such date;
c) those born in Namibia after the date of Independence whose fathers or
mothers are Namibian citizens at the time of the birth of such persons;
d) those born in Namibia after the date of Independence who do not qualify
for citizenship under Paragraph (c), and whose fathers or mothers are
ordinarily resident in Namibia at the time of the birth of such persons:
provided that their fathers or mothers are not then persons:
aa) enjoying diplomatic immunity in Namibia under any law relating to
diplomatic privileges; or
bb) who are career representatives of another country; or
cc) who are members of any police, military or security unit seconded for
service within Namibia by the Government of
another country; or
dd) who are illegal immigrants:
provided further that Paragraphs (aa), (bb), (cc) and (dd) will not apply to
children who would otherwise be stateless.
(2) The following persons shall be citizens of Namibia by descent:
a) those who are not Namibian citizens under Paragraph (1) and whose fathers
or mothers at the time of the birth of such persons are citizens of Namibia
or whose fathers or mothers would have qualified for Namibian citizenship by
birth under Paragraph (1), if this Constitution had been in force at that
time; and
b) who comply with such requirements as to registration of citizenship as may
be required by Act of Parliament: provided that nothing in this Constitution
shall preclude Parliament from enacting legislation which requires the birth
of such persons born after the date of Independence to be registered within a
specific time either in Namibia or at an embassy, consulate or office of a
trade representative of the Government of Namibia.
(3) The following persons shall be citizens of Namibia by marriage:
a) those who are not Namibian citizens under Paragraph (1) or (2) and who:
aa) in good marry a Namibian citizen or, prior to the coming into force of
this Constitution, in good faith married a person who would have qualified
for Namibian citizenship if this Constitution had been in force; and
bb) subsequent to such marriage have ordinarily resided in Namibia as the
spouse of such person for a period of not less than two (2) years; and
cc) apply to become citizens of Namibia;
b) for the purposes of this paragraph (and without derogating from any effect
that it may have for any other purposes) a marriage by customary law shall be
deemed to be a marriage: provided that nothing in this Constitution shall
preclude Parliament from enacting legislation which defines the requirements
which need to be satisfied for a marriage by customary law to be recognised
as such for the purposes of this paragraph.
(4) Citizenship by registration may be claimed by persons who are not
Namibian citizens under Paragraph (1), (2) or (3) and who were ordinarily
resident in Namibia at the date of Independence, and had been so resident for
a continuous period of not less than five (5) years prior to such
date:provided that application for Namibian citizenship under this paragraph
is made within a period of twelve (12) months from the date of Independence,
and prior to making such application, such persons renounce the citizenship
on any other country of which they are citizens.
(5) Citizenship by naturalisation may be applied for by persons who are not
Namibian citizens under Paragraphs (1), (2), (3) or (4) and who:
a) are ordinarily resident in Namibia at the time when the application for
naturalisation is made; and
b) have been so resident in Namibia for a continuous period of not less than
five (5) years (whether before or after the date of Independence); and
c) satisfy any other criteria pertaining to health, morality, security or
legality of residence as may be prescribed by law.
(6) Nothing contained herein shall preclude Parliament from authorizing by
law the conferment of Namibian citizenship upon any fit and proper person by
virtue of any special skill or experience or commitment to or services
rendered to the Namibian nation either before or at any time after the date
of Independence.
(7) Namibian citizenship shall be lost by persons who renounce
their Namibian citizenship by voluntarily signing a formal declaration to
that effect.
(8) Nothing in this Constitution shall preclude Parliament from enacting
legislation providing for the loss of Namibian citizenship by persons who,
after the date of Independence:
a) have acquired the citizenship of any other country by any voluntary act;
or
b) have served or volunteered to serve in the armed or security forces of any
other country without the written permission of the Namibian Government; or
c) have taken up permanent residence in any other country and have absented
themselves thereafter from Namibia for a period in excess of two (2) years
without the written permission of the Namibian Government:
provided that no person who is a citizenship of Namibia by birth or descent
may be deprived of Namibian citizenship by such legislation.
(9) Parliament shall be entitled to make further laws not inconsistent with
this Constitution regulating the acquisition or loss of Namibian citizenship.
Chapter III Fundamental
Human Rights and Freedoms
Article 5 [Protection
of Fundamental Rights and Freedoms]
The fundamental rights and freedoms enshrined in this chapter shall be
respected and upheld by the Executive, Legislature and Judiciary and all
organs of the Government and its agencies and, where applicable to them, by
all natural and legal persons in Namibia, and shall be enforceable
by the Courts in the manner hereinafter prescribed.
Article 6 [Protection
of Life]
The right to life shall be respected and protected. No law may prescribe death
as a competent sentence. No Court or Tribunal shall have the power to impose
a sentence of death upon any person. No executions shall take place in Namibia.
Article 7 [Protection
and Liberty]
No persons shall be deprived of personal liberty except according to
procedures established by law.
Article 8 [Respect for
Human Dignity]
(1) The dignity of all persons shall be inviolable.
(2)(a) In any judicial proceedings or in other proceedings before any organ
of the State, and during the enforcement of a penalty, respect for human
dignity shall be guaranteed.
(b) No persons shall be subject to torture or to cruel, inhuman or degrading
treatment or punishment.
Article 9 [Slavery and
Forced Labour {Labor}]
(1) No persons shall be held in slavery or servitude.
(2) No persons shall be required to perform forced labour {labor}.
(3) For the purposes of this article, the expression "forced
labour" shall not include:
a) any labour required in consequence of a sentence or order of a Court;
b) any labour required of persons while lawfully detained which, though not
required in consequence of a sentence or order of a Court, is reasonably
necessary in the interests of hygiene;
c) any labour required or members of the defence force, the police force and
the prison service in pursuance of their duties as such or, in the case of
persons who have conscientious objections to serving as members of the
defence force, any labour which they are required by law to perform in place
of
such service;
d) any labour required during any period of public emergency or in the event
of any other emergency or calamity which threatens the life and well-being of
the community, to the extent that requiring such labour is reasonably
justifiable in the circumstances of any situation arising or existing during
that period or as a result of that other emergency or calamity, for the
purpose of dealing with that situation;
e) any labour reasonably required as part of reasonable and normal communal
or other civic obligations.
Article 10 [Equality
and Freedom from Discrimination]
(1) All persons shall be equal before the law.
(2) No persons may be discriminated against on the grounds of sex, race,
colour {color}, ethnic origin, religion, creed or social or economic
status.
Article 11 [Arrest and
Detention]
(1) No persons shall be subject to arbitrary arrest or detention.
(2) No persons who are arrested shall be detained in custody without being
informed promptly in a language they understand of the grounds for such
arrest.
(3) All persons who are arrested and detained in custody shall be brought
before the nearest Magistrate or other judicial officer within a period of
forty-eight (48) hours of their arrest or, if this is not reasonably
possible, as soon as possible thereafter, and no such persons shall be
detained in custody beyond such period without the authority of a Magistrate
or other judicial officer.
(4) Nothing contained in Paragraph (3) shall apply to illegal immigrants held
in custody under any law dealing with illegal immigration: provided that such
persons shall not be deported from Namibia unless deportation is authorised by a Tribunal
empowered by law to give such authority.
(5) No persons who have been arrested and held in custody as illegal
immigrants shall be denied the right to consult confidentially legal
practitioners of their choice, and there shall be no interference with this
right except such as is in accordance with the law and is necessary in a
democratic society in the interest of national security or for public safety.
Article 12 [Fair Trial]
(1)(a) In the determination of their civil rights and obligations or any
criminal charges against them, all persons shall be entitled to a fair and
public hearing by an independent, impartial and competent Court or Tribunal
established by law: provided that such Court or Tribunal may exclude the
press and/or the public from all or any part of the trial for reasons of
morals, the public order or national security, as is necessary in a
democratic society.
(b) A trial referred to in Paragraph (a) shall take place within a reasonable
time, failing which the accused shall be released.
(c) Judgments in criminal cases shall be given in public, except where the
interests of juvenile persons or morals otherwise require.
(d) All persons charged with an offence shall be presumed innocent until
proven guilty according to law, after having had the opportunity of calling
witnesses and cross-examining those called against them.
(e) All persons shall be afforded adequate time and facilities for the preparation
and presentation of their defence, before the commencement of and during
their trial, and shall be entitled to be defended by a legal practitioner of
their choice.
(f) No persons shall be compelled to give testimony against themselves or
their spouses, who shall include partners in a marriage by customary law, and
no Court shall admit in evidence against such persons testimony which has
been obtained from such persons in violation of Article 8 (2)(b).
(2) No persons shall be liable to be tried, convicted or punished again for
any criminal offence for which they have already been convicted or acquitted
according to law: provided that nothing in this paragraph shall be construed
as changing the provisions of the common law defence of "previous
acquittal" and "previous conviction".
(3) No persons shall be tried or convicted for any criminal offence or on
account of any act or omission which did not constitute a criminal offence at
the time when it was committed, nor shall a penalty be imposed exceeding that
which was applicable at the time when the offence was committed.
Article 13 [Privacy]
(1) No persons shall be subject to interference with the privacy of their
homes, correspondence or communications save as in accordance with law and as
is necessary in a democratic society in the interests of national security,
public safety of the economic well-being of the country, for the protection
of health or morals, for the prevention of disorder or crime or for the
protection of the rights or freedoms of others.
(2) Searchers of the person or the homes of individuals shall only be
justified:
a) where these are authorised by a competent judicial officer;
b) in cases where delay in obtaining such judicial authority carries with it
the danger or prejudicing the objects of the search or the public interest,
and such procedures as are prescribed by Act of Parliament to preclude abuse
are properly satisfied.
Article 14 [Family]
(1) Men and women of full age, without any limitation due to race, colour {color},
ethnic origin, nationality, religion, creed or social or economic status
shall have the right to marry and to found a family. They shall be entitled
to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the
intending spouses.
(3) The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State.
Article 15 [Children's
Rights]
(1) Children shall have the right from birth to a name, the right to
acquire a nationality and, subject to legislation enacted in the best
interests of children, as far as possible the right to know and be cared for
by their parents.
(2) Children are entitled to be protected from economic exploitation and
shall not be employed in or required to perform work that is likely to be
hazardous or to interfere with their education, or to be harmful to their
health or physical, mental, spiritual, moral, or social development. For the
purposes of this paragraph children shall be under the age of sixteen (16)
years.
(3) No children under the age of fourteen (14) years shall be employed to
work in any factory or mine, save under conditions and circumstances
regulated by Act of Parliament. Nothing in this paragraph shall be construed
as derogating in any way from Paragraph (2).
(4) Any arrangement or scheme employed on any farm or other undertaking, the
object or effect of which is to compel the minor children of an employee to
work for or in the interest of the employer of such employee, shall for the
purposes of Article 9 be deemed to constitute an arrangement or
scheme to compel the performance of forced labour {labor}.
(5) No law authorising preventive detention shall permit
children under the age of sixteen (16) years to be detained.
Article 16 [Property]
(1) All persons shall have the right in any part on Namibia to acquire, own
and dispose of all forms of immovable and movable property
individually or in association with others and to bequeath their property to
their heirs or legatees: provided that Parliament may be legislation prohibit
or regulate as it deems expedient the right to acquire property by persons
who are not Namibian citizens.
(2) The State or a competent body or organ authorised by law may expropriate
property in the public interest subject to the payment of just compensation,
in accordance with requirements and procedures to be determined by Act of
Parliament.
Article 17 {...}
Article 18
[Administrative Justice]
Administrative bodies and administrative officials shall act fairly and
reasonably and comply with the requirements imposed upon such bodies and
officials by common law and any relevant legislation, and persons aggrieved
by the exercise of such acts and decisions shall have the right to seek
redress before a competent Court or Tribunal.
Article 19 [Culture]
Every person shall be entitled to enjoy, practice, profess, maintain and
promote any culture, language, tradition or religion subject to the terms of
this Constitution and further subject to the condition that the rights
protected by this article do not impinge upon the rights of others or the
national interest.
Article 20 [Education]
(1) All persons shall have the right to education.
(2) Primary education shall be compulsory and the State shall provide
reasonable facilities to render effective this right for every resident
within Namibia, by establishing and maintaining State schools at which
primary education will be provided free of charge.
(3) Children shall not be allowed to leave school until they have completed
their primary education or have attained the age of sixteen (16) years,
whichever is the sooner, save in so far as this may be authorised by Act of
Parliament on grounds of health or other considerations pertaining to the
public interest.
(4) All persons shall have the right, at their own expense, to establish and
to maintain private schools, or colleges or other institutions of tertiary
education: provided that:
a) such schools, colleges or institutions of tertiary education are
registered with a Government department in accordance with any law
authorising and regulating such registration;
b) the standards maintained by such schools, colleges or institutions of
tertiary education are not inferior to the standards maintained in comparable
schools, colleges or institutions of tertiary education funded by the State;
c) no restrictions of whatever nature are imposed with respect to the
admission of pupils based on race, colour {color} or creed; d) no
restrictions of whatever nature are imposed with respect to the recruitment
of staff based on race or colour {color}.
Article 21 [Fundamental
Freedoms]
(1) All persons shall have the right to: a) freedom of speech and expression,
which shall include freedom of the press and other media; b) freedom of
thought, conscience and belief, which shall include academic freedom
in institutions of higher learning; c) freedom to practice any religion
and to manifest such practice; d) assemble peaceably and without arms;
e) freedom of association, which shall include freedom to form and join
associations or unions, including trade unions and political parties; f)
withhold their labour {labor} without being exposed to criminal
penalties; g) move freely throughout Namibia;
h) reside and settle in any part of Namibia;
i) leave and return to Namibia;
j) practice any profession, or carry on any occupation, trade or business.
(2) The fundamental freedoms referred to in Paragraph (1) shall be exercised
subject to the law of Namibia, in so far as such law imposes reasonable
restrictions on the exercise of the rights and freedoms conferred by the said
Paragraph, which are necessary in a democratic society and are required in
the interests of the sovereignty and integrity of Namibia, national security,
public order, decency or morality, or in relation to contempt of court, defamation
or incitement to an offence.
Article 22 [Limitation
upon Fundamental Rights and Freedoms]
Whenever or wherever in terms of this Constitution the limitation of
any fundamental rights or freedoms contemplated by this chapter is
authorised, any law providing for such limitation shall: a) be of general
application, shall not negate the essential content, and shall not be aimed
at a particular individual;
b) specify the ascertainable extent of such limitation and identify the
article or articles on which authority to enact such limitation is claimed to
rest.
Article 23 [Apartheid
and Affirmative Action]
(1) The practice of racial discrimination and the practice and ideology of
apartheid from which the majority of the people of Namibia have suffered for
so long shall be prohibited and by Act of Parliament such practices, and the
propagation of such practices, may be rendered criminally punishable by the
ordinary Courts by means of such punishment as Parliament deems necessary for
the purposes of expressing the revulsion of the Namibian people at such
practices.
(2) Nothing contained in Article 10 shall prevent Parliament from enacting
legislation providing directly or indirectly for the advancement of persons
within Namibia who have been socially, economically or educationally
disadvantaged by past discriminatory laws or practices, or for the
implementation of policies and programmes aimed at redressing social,
economic or educational imbalances in the Namibian society arising out of
past discriminatory laws or practices, or for achieving a balanced
structuring of the public service, the police force, the defence force, and
the prison service.
(3) In the enactment of legislation and the application of any policies and
practices contemplated by Paragraph (2), it shall be permissible to have
regard to the fact that women in Namibia have traditionally suffered special
discrimination and that they need to be encouraged and enabled to play a
full, equal and effective role in the political, social, economic and
cultural life of the nation.
Article 24 [Derogation]
(1) Nothing contained in or done under the authority of Article 26 shall be held to be inconsistent with or in
contravention of this Constitution to the extent that it authorises the
taking of measures during any period when Namibia is in a state of national
defence or any period when a declaration of emergency under this Constitution
is in force.
(2) Where any persons are detained by virtue of such authorization as is
referred to in Paragraph (1), the following provisions shall apply:
a) they shall, as soon as reasonably practicable and in any case not more
than five (5) days after the commencement of their detention, be furnished
with a statement in writing in a language that they understand specifying in
detail the grounds upon which they are detained and, at their request, this
statement shall be read to them;
b) not more than fourteen (14) days after the commencement of their
detention, be furnished with a statement in writing in a language that they
understand specifying in detail the grounds upon which they are detained and,
at their request, this statement shall be read to them; c) not more than one
(1) month after the commencement of their detention and thereafter during
their detention at intervals of not more than three (3) months, their cases
shall be reviewed by the Advisory Board referred to in Article 26 (5)(c), which shall order their release
from detention if it is satisfied that it is not reasonably necessary for the
purposes of the emergency to continue the detention of such persons; d) they
shall be afforded such opportunity for the making of representations as may
be desirable or expedient in the circumstances, having regard to the public
interest and the interests of the detained persons.
(3) Nothing contained in this article shall permit a derogation from or
suspension of the fundamental rights or freedoms referred to in Articles 5, 6, 8, 9, 10, 12, 14, 15, 18, 19 and 21
(1)(a), (b), (c), and (e), or the denial of access by any persons to legal
practitioners or a Court of law.
Article 25 [Enforcement
of Fundamental Rights and Freedoms]
(1) Save in so far as it may be authorised to do so by this Constitution,
Parliament or any subordinate legislative authority shall not make any law,
and the Executive and the agencies of Government shall not take any action
which abolishes or abridges the fundamental rights and freedoms conferred by
this chapter, and any law or action in contravention thereof shall to the
extent of the contravention be invalid; provided that:
a) a competent Court, instead of declaring such law or action to be invalid,
shall have the power and the discretion in an appropriate case to allow
Parliament, any subordinate legislative authority, or the Executive and the
agencies of Government, as the case may be, to correct any defect in the
impugned law or action within a specified period, subject to such conditions
as may be specified by it. In such event and until such correction, or until
the expiry of the time limit set by the Court, whichever be the shorter, such
impugned law or action shall be deemed to be valid;
b) any law which was in force immediately before the date of Independence
shall remain in force until amended, repealed or declared unconstitutional,
it may either set aside the law, or allow Parliament to correct any defect in
such law, in which event the provisions of Paragraph (a) shall apply.
(2) Aggrieved persons who claim that a fundamental right or freedom guaranteed
by this Constitution has been infringed or threatened shall be entitled to
approach a competent Court to enforce or protect such a right or freedom, and
may approach the Ombudsman to provide them with such legal assistance or
advice as they require, and the Ombudsman shall have the discretion in
response thereto to provide such legal or other assistance as he or she may
consider expedient.
(3) Subject to the provisions of this Constitution, the Court referred to in
Paragraph (2) shall have the power to make all such orders as shall be
necessary and appropriate to secure such
applicants the enjoyment of the rights of freedoms conferred on them under
the provisions of this Constitution, should the Court come to the conclusion
that such rights or freedoms have been unlawfully denied or violated, or that
grounds exist for the protection of such rights or freedoms by interdict.
(4) The power of the Court shall include the power to award monetary
compensation in respect of any damage suffered by the aggrieved persons in
consequence of such unlawful denial or violation of their fundamental rights
and freedoms, where it considers such an award to be appropriate in the
circumstances of particular cases.
Chapter IV Public
Emergency, State of National Defence and Martial
Law
Article 26 [State of
Emergency, State of National Defence and Martial Law]
(1) At a time of national disaster or during a state of national defence or
public emergency threatening the life of the nation or the constitutional
order, the President may by Proclamation in the Gazette declare that a state
of emergency exists in Namibia or any part thereof.
(2) A declaration under Paragraph (1), if not sooner revoked, shall cease to
have effect:
a) in the case of a declaration made when the National Assembly is sitting or
has been summoned to meet, at the expiration of a period of seven (7) days
after publication of the declaration; or
b) in any other case, at the expiration of a period of thirty (30) days after
publication of the declaration;
unless before the expiration of that period, it is approved by a resolution
passed by the National Assembly by a two-thirds majority of all its members.
(3) Subject to the provisions of Paragraph (4), a declaration approved by a
resolution of the National Assembly under Paragraph (2) shall continue to be
in force until the expiration of a period of six (6) months after being so
approved or until such earlier date as may be specified in the resolution:
provided that the National Assembly may, by resolution by a two-thirds
majority of all its members, extend its approval of the declaration for
periods of not more than six (6) months at a time.
(4) The National Assembly may by resolution at any time revoke a declaration
approved by it in terms of this article.
(5)(a) During a state of emergency in terms of this article or when a state
of national defence prevails, the President shall have the power by
Proclamation to make such regulations as in his or her opinion are necessary
for the protection of national security, public safety and the maintenance of
law and order.
(b) The powers of the President to make such regulations shall include the
power to suspend the operation of any rule of the common law or statute or
any fundamental right or freedom protected by this Constitution, for such
period and subject to such conditions as are reasonably justifiable for the
purpose of dealing with the situation which has given rise to the emergency:
provided that nothing in this paragraph shall enable the President to act
contrary to the provisions of Article 24.
(c) Where any regulation made under Paragraph (b) provides for detention
without trial, provision shall also be made for an Advisory Board, to be appointed
by the President on the recommendation of the Judicial Service Commission,
and consisting of no more than five (5) persons, of whom no fewer than three
(3) persons shall be Judges of the Supreme Court or the High Court or
qualified to be such. The Advisory Board shall perform the function set out
in Article 24 (2)(c).
(6) Any regulations made by the President pursuant to the provisions of
Paragraph (5) shall cease to have legal force if they have not been approved
by a resolution of the National Assembly within fourteen (14) days from the
date when the
National Assembly first sits in session after the date of the commencement of
any such regulations.
(7) The President shall have the power to proclaim or terminate martial law.
Martial law may be proclaimed only when a state of national defence involving
another country exists or when civil war prevails in Namibia: provided that any proclamation of martial law
shall cease to be valid if it is not approved within a reasonable time by a
resolution passed by a two-third majority of all the members of the National
Assembly.
Chapter V The President
Article 27 [Head of
State and Government]
(1) The President shall be the Head of State and of the Government
and the Commander-in-Chief of the Defence Force.
(2) The executive power of the Republic of Namibia shall vest in the President and the Cabinet.
(3) Except as may be otherwise provided in this Constitution or by law, the
President shall in the exercise of her functions be obliged to act in
consultation with the Cabinet.
Article 28 [Election]
(1) The President shall be elected in accordance with the provisions of this
Constitution and subject thereto.
(2) Election of the President shall be:
a) by direct, universal and equal suffrage; and
b) conducted in accordance with principles and procedures to be determined by
Act of Parliament: provided that no person shall be elected as President
unless he or she received more than fifty (50) per cent of the votes cast and
the necessary number of ballots shall be conducted until result is reached.
(3) Every citizen of Namibia by birth of descent, over the age of thirty-five
(35) years, and who is eligible to be elected to office as a member of the
National Assembly shall be eligible for election as President.
(4) The procedures to be followed for the nomination of candidates for
election as President, and for all matters necessary and incidental to ensure
the free, fair and effective election of a President, shall be determined by
Act of Parliament: provided that any registered political party shall be
entitled to nominate a candidate, and any person supported by a minimum
number of registered voters to be determined by Act of Parliament shall also
be entitled to be nominated as a candidate.
Article 29 [Term of
Office]
(1)(a) The President's term of office shall be five (5) years unless he or
she dies or resigns before the expiry of the said term or is removed from
office.
(b) In the event of the dissolution of the National Assembly in the
circumstances provided for under Article 57 (1), the President's term of office shall
also expire.
(2) A President shall be removed from office if a two-thirds majority of all
the members of the National Assembly, confirmed by a two-thirds majority of
all the members of the National Council, adopts a resolution impeaching the
President on the ground that he or she has been guilty of a violation of the
Constitution or guilty of a serious violation of the laws of the land or
otherwise guilty of such gross misconduct or ineptitude as to render him or
her unfit to hold with dignity and honour {honor} the office of
President.
(3) A person shall hold office as President for not more than two terms.
(4) If a President dies, resigns or is removed from office in terms of this
Constitution, the vacant office of President shall
be filled for the unexpired period thereof as follows: a) if the vacancy
occurs not more than one (1) year before the date on which Presidential
elections are required to be held, the vacancy shall be filled in accordance
with the provisions of Article 34;
b) if the vacancy occurs not more than one (1) year before the date on which
Presidential elections are required to be held, an election for the President
shall be held in accordance with the provisions of Article 28 within a period of ninety (90) days from
the date on which the vacancy occurred, and pending such election the vacant
office shall be filled in accordance with the provisions of Article 34.
(5) If the President dissolves the National Assembly under Article 32 (3)(a) and _57 (1), a new election for President shall be
held in accordance with the provisions of Article 28 within ninety (90) days, and pending such
election the President shall remain in office, and the provisions of Article 58 shall be applicable.
(6) If a person becomes President under Paragraph (4), the period of time
during which he or she holds office consequent upon such election or
succession shall not be regarded as a term for the purposes of Paragraph (3).
Article 30 [Oath or
Affirmation]
Before formally assuming office, a President-elect shall make the following
oath or affirmation which shall be administered by the Chief Justice or a
Judge designated by the Chief Justice for this purpose:
"I, ..., do hereby swear/solemnly affirm,
That I will strive to the best of my ability to uphold, protect and defend as
the Supreme Law the Constitution of the Republic of Namibia, and faithfully
to obey, execute and administer the laws of the Republic of Namibia;
That I will protect the independence, sovereignty, territorial integrity and
the material and spiritual resources of the Republic of Namibia; and
That I will endeavour {endeavour} to the best of my ability to ensure
justice for all the inhabitants of the Republic of Namibia.
(In the case of an oath:) So help me God."
Article 31 [Immunity
from Civil and Criminal Proceedings]
(1) No person holding the office of President or performing the functions of
President may be sued in any civil proceedings save where such proceedings
concern an act done in his or her official capacity as President.
(2) No person holding the office of President shall be charged with any
criminal offence or be amenable to the criminal jurisdiction of any Court in
respect of any act allegedly performed, or any omission to perform any act,
during his or her tenure of office as President.
(3) After a President has vacated that office:
a) no Court may entertain any action against him or her in any civil
proceedings in respect of any act done in his or her official capacity as
President;
b) a civil or criminal Court shall only have jurisdiction to entertain
proceedings against him or her, in respect of acts of commission or omission
alleged to have been perpetrated in his or her personal capacity whilst
holding office as President, if Parliament by resolution has removed the
President on the grounds specified in this Constitution and if a resolution
is adopted by Parliament resolving that any such proceedings are justified in
the public interest notwithstanding any damage such proceedings might cause
to the dignity of the office of President.
Article 32 [Functions,
Powers and Duties]
(1) As the Head of State, the President shall uphold, protect and defend the
Constitution as the Supreme Law, and shall perform with dignity and
leadership all acts necessary, expedient, reasonably and incidental to the
discharge of the executive functions of the Government, subject to the
overriding terms of this Constitution and the laws of Namibia, which he or
she is constitutionally obliged to protect, to administer and to execute.
(2) In accordance with the responsibility of the executive branch of
Government to the legislative branch, the President and the Cabinet shall
each year during the consideration of the official budget attend Parliament.
During such session the President shall address Parliament on the state of
the nation and on the future policies of the Government, shall report on the
policies of the previous year and shall be available to respond to questions.
(3) Without derogating from the generality of the functions and powers
contemplated by Paragraph (1), the President shall preside over meetings of
the Cabinet and shall have the power, subject to this Constitution to: a)
dissolve the National Assembly by Proclamation in the circumstances provided
for in Article 57 (1);
b) determine the times for the holding of special sessions of the National
Assembly, and to prorogue such sessions;
c) accredit, receive and recognise ambassadors, and to appoint ambassadors,
plenipotentiaries, diplomatic representatives and other diplomatic officers,
consuls and consular officers;
d) pardon or reprieve offenders, either unconditionally or subject to such
conditions as the President may deem fit;
e) negotiate and sign international agreements, and to delegate such power;
f) declare martial law or, if it is necessary for the defence of the nation,
declare that a state of national defence exists: provided that this power
shall be exercised subject to the terms of Article 26 (7);
g) establish and dissolve such Government departments and ministries as the
President may at any time consider to be necessary or expedient for the good
government of Namibia; h) confer such honours {honors} as the
President considers appropriate on citizens, residents and friends of Namibia
in consultation with interested and relevant persons and institutions; i)
appoint the following persons:
aa) the Prime Minister;
bb) Ministers and Deputy-Ministers;
cc) the Attorney-General;
dd) the Director-General of Planning;
ee) any other person or persons who are required by any other provision of
this Constitution or any other law to be appointed by the President.
(4) The President shall also have the power, subject to this Constitution, to
appoint:
a) on the recommendation of the Judicial Service Commission:
aa) the Chief Justice, the Judge-President of the High Court and other Judges
of the Supreme Court and the High Court;
bb) the Ombudsman;
cc) the Prosecutor-General;
b) on the recommendation of the Public Service Commission:
aa) the Auditor-General;
bb) the Governor and the Deputy-Governor of the Central Bank;
c) on the recommendation of the Security Commission:
aa) the Chief of the Defence Force;
bb) the Inspector-General of Police;
cc) the Commissioner of Prisons.
(5) Subject to the provisions of this Constitution dealing with
the signing of any laws passed by Parliament and the promulgation and
publication of such laws in the Gazette, the President shall have the power
to:
a) sign and promulgate any Proclamation which by law he or she is entitled to
proclaim as President;
b) initiate, in so far as he or she considers it necessary and expedient,
laws for submission to and consideration by the National Assembly;
c) appoint as members of the National Assembly but without any vote therein,
not more than six (6) persons by virtue of their special expertise, status,
skill or experience.
(6) Subject to the provisions of this Constitution or any other law, any
person appointed by the President pursuant to the powers vested in him or her
by this Constitution or any other law may be removed by the President by the
same process through which such person was appointed.
(7) Subject to the provisions of this Constitution and of any other law of
application in this matter, the President may, in consultation with the
Cabinet and on the recommendation of the Public Service Commission:
a) constitute any office in the public service of Namibia not otherwise
provided for by any other law;
b) appoint any person to such office;
c) determine the tenure of any person so appointed as well as the terms and
conditions of his or her service.
(8) All appointments made and actions taken under Paragraph (3), (4), (5),
(6) and (7) shall be announced by the President by Proclamation in the
Gazette.
(9) Subject to the provisions of this Constitution and save where this
Constitution otherwise provides, any action taken by the President pursuant
to any power vested in the President by the terms of this article shall be
capable of being reviewed, reversed or corrected on such terms as are deemed
expedient and proper should there be a resolution proposed by at least
one-third of all the members of the National Assembly and passed by a
two-thirds majority of all the members of the National Assembly disapproving
any such action and resolving to review, reverse or correct it.
(10) Notwithstanding the review, reversal or correction of any action in
terms of Paragraph (9), all actions performed pursuant to any such action
during the period preceding such review, reversal or correction shall be
deemed to be valid and effective in law, until and unless Parliament
otherwise enacts.
Article 33
[Remuneration]
Provision shall be made by Act of Parliament for the payment out of the State
Revenue Fund of remuneration and allowances for the President, as well as for
the payment of pensions to former Presidents and, in the case of their
deaths, to their surviving spouses.
Article 34 [Succession]
(1) If the office of President becomes vacant or if the President is
otherwise unable to fulfil the duties of the office, the following persons
shall in the order provided for in this paragraph act as President for the
unexpired portion of the President's term of office or until the President is
able to resume office, whichever is the earlier:
a) the Prime Minister;
b) the Deputy-Prime Minister;
c) a person appointed by the Cabinet.
(2) Where it is regarded as necessary or expedient that a person deputise for
the President because of a temporary absence from the country or because of
pressure of work, the President shall be entitled to nominate any person
enumerated in Paragraph (1) to deputise for him or her in respect of such
specific occasions
or such specific matters and for such specific periods as in his or her
discretion may be considered wise and expedient, subject to consultation with
the Cabinet.
Chapter VI The Cabinet
Article 35
[Composition]
(1) The Cabinet shall consist of the President, the Prime Minister
and such other Ministers as the President may appoint from the members of the
National Assembly, including members nominated under Article 46 (1)(b), for the purposes of administering
and executing the functions of the Government.
(2) The President may also appoint a Deputy-Prime Minister to perform such
functions as may be assigned to him or her by the President of the Prime
Minister.
(3) The President or, in his or her absence, the Prime Minister or other
Minister designated for this purpose by the President, shall preside at
meetings of the Cabinet.
Article 36 [Functions
of the Prime Minister]
The Prime Minister shall be the leader of Government business in Parliament,
shall co-ordinate the work of the Cabinet and shall advise and assist the
President in the execution of the functions of Government.
Article 37
[Deputy-Ministers]
The President may appoint from the members of the National Assembly,
including members nominated under Article 46 (1)(b), and the National Council such
Deputy-Ministers as he or she may consider expedient, to exercise of perform
on behalf of Ministers any of the powers, functions and duties which may have
been assigned to such Ministers.
Article 38 [Oath of
Affirmation]
Before assuming office, a Minister or Deputy-Minister shall make and
subscribe to an oath or solemn affirmation before the President or a person
designated by the President for this purpose, in the terms set out in
Schedule 2.
Article 39 [Vote of No
Confidence]
The President shall be obliged to terminate the appointment of any member of
the Cabinet, if the National Assembly by a majority of all its members
resolves that it has no confidence in that member.
Article 40 [Duties and
Functions]
The members of the Cabinet shall have the following functions:
a) to direct, co-ordinate and supervise the activities of Ministries and
Government departments including para-statal enterprises, and to review and
advise the President and the National Assembly on the desirability and wisdom
of any prevailing subordinate legislation, regulations or orders pertaining
to such para-statal enterprises, regard being had to the public interest;
b) to initiate bills for submission to the National Assembly;
c) to formulate, explain and assess for the National Assembly the budget of
the State and its economic development plans and to report to the National
Assembly thereon;
d) to carry out such other functions as are assigned to them by law or are
incidental to such assignment;
e) to attend meetings of the National Assembly and to be available for the
purposes of any queries and debates pertaining to the legitimacy, wisdom,
effectiveness and direction of Government policies; f) to take such steps as
are authorised by law to establish such economic organisations {organizations},
institutions and para- statal enterprises on behalf of the State as are
directed or authorised by law;
g) to formulate, explain and analyze for the members of the National Assembly
the goals of Namibian foreign policy and its relations with other States and
to report to the National Assembly thereon;
h) to formulate, explain and analyze for the members of the National Assembly
the directions and content of foreign trade policy and to report to the
National Assembly thereon;
i) to assist the President in determining what international agreements are
to be concluded, acceded to or succeeded to and to report to the National
Assembly thereon;
j) to advise the President on the state of national defence and the
maintenance of law and order and to inform the National Assembly thereon;
k) to issue notices, instructions and directives to facilitate the
implementation and administration of laws administered by the Executive,
subject to the terms of this Constitution or any other law;
l) to remain vigilant and vigorous for the purposes of ensuring that the
scourges of apartheid, tribalism and colonialism do not again manifest
themselves in any form in a free and independent Namibia and to protect and
assist disadvantaged citizens of Namibia who have historically been the
victims of these pathologies.
Article 41 [Ministerial
Accountability]
All Ministers shall be accountable individually for the administration of
their own Ministries and collectively for the administration of the work of
the Cabinet, both to the President and to Parliament.
Article 42 [Outside
Employment]
(1) During their tenure of office as members of the Cabinet, Ministers may
not take up any other paid employment, engage in activities inconsistent with
the positions as Ministers, or expose themselves to any situation which
carries with it the risk of a conflict developing between their interests as
Ministers and their private interests.
(2) No members of the Cabinet shall use their positions as such or use
information entrusted to them confidentially as such members of the Cabinet,
directly or indirectly to enrich themselves.
Article 43 [Secretary
to the Cabinet]
(1) There shall be a Secretary to the Cabinet who shall be appointed by the
President and who shall perform such functions as may be determined by law
and such functions as are from time to time assigned to the Secretary by the
President or the Prime Minister. Upon appointment by the President, the
Secretary shall be deemed to have been appointed to such office on the
recommendation of the Public Service Commission.
(2) The Secretary to the Cabinet shall also serve as a depository of the
records, minutes and related documents of the Cabinet.
Chapter VII The
National Assembly
Article 44 [Legislative
Power]
The legislative power of Namibia shall be vested in the National Assembly
with the power to pass laws with the assent of the President as provided in
this Constitution subject, where applicable, to the powers and functions of
the National Council as set out in this Constitution.
Article 45
[Representative Nature]
The members of the National Assembly shall be representative of all the
people and shall in the performance of their duties be guided by the
objectives of this Constitution, by the public interest and by their
conscience.
Article 46
[Composition]
(1) The composition of the National Assembly shall be as follows: a)
seventy-two (72) members to be elected by the registered voters by general,
direct and secret ballot. Every Namibian citizen who has the qualifications
described in Article 17 shall be entitled to vote in the elections
for members of the National Assembly and, subject to Article _47, shall be eligible for candidature as a
member of the National Assembly; b) not more than six (6) persons appointed
by the President under Article 32 (5)(c), by virtue of their special
expertise, status, skill or experience: provided that such members shall have
no vote in the National Assembly, and shall not be taken into account for the
purpose of determining any specific majorities that are required under this
Constitution or any other law.
(2) Subject to the principles referred to in Article 49, the members of the National Assembly
referred to in Paragraph (1)(a) shall be elected in accordance with
procedures to be determined by Act of Parliament.
Article 47
[Disqualification of Members]
(1) No persons may become members of the National Assembly if they:
a) have at any time after Independence been convicted of any offence in
Namibia, or outside Namibia if such conduct would have constituted an offence
within Namibia, and for which they have been sentenced to death or to imprisonment
of more than twelve (12) months without the option of a fine, unless they
have received a free pardon or unless such imprisonment has expired at least
ten (10) years before the date of their election; or
b) have at any time prior to Independence been convicted of an offence, if
such conduct would have constituted an offence within Namibia after
Independence, and for which they have been sentenced to death or to
imprisonment of more than twelve (12) months without the option of a fine,
unless they have received a free pardon or unless such imprisonment has
expired at least ten (10) years before the date of their election: provided
that no person sentenced to death or imprisonment for acts committed in
connection with the struggle for the independence of Namibia shall be
disqualified under this paragraph from being elected as a member of the
National Assembly; or
c) are unrehabilitated insolvents; or
d) are of unsound mind and have been so declared by a competent Court; or
e) are remunerated members of the public service of Namibia; or
f) are members of the National Council, Regional Councils or Local
Authorities.
(2) For the purpose of Paragraph (1):
a) no person shall be considered as having been convicted by any Court until
any appeal which might have been noted against the conviction or sentence has
been determined, or the time for noting an appeal against such conviction has
expired;
b) the public service shall be deemed to include the defence force, the
police force, the prison service, para-statal enterprises, Regional Councils
and Local Authorities.
Article 48 [Vacation of
Seats]
(1) Members of the National Assembly shall vacate their seats:
a) if they cease to have the qualifications which rendered them eligible to
be members of the National Assembly;
b) if the political party which nominated them to sit in the National
Assembly informs the Speaker that such members are no longer members of such
political party;
c) if they resign their seats in writing addressed to the Speaker;
d) if they are removed by the National Assembly pursuant to its rules and
standing orders permitting or requiring such removal for good and sufficient
reasons;
e) if they are absent during sittings of the National Assembly for ten (10)
consecutive sitting days, without having obtained the special leave of the
National Assembly on grounds specified in its rules and standing orders.
(2) If the seat of a member of the National Assembly is vacated in terms of
Paragraph (1), the political party which nominated such member to sit in the
National Assembly shall be entitled to fill the vacancy by nominating any
person on the party's election list compiled for the previous general
election, or if there be no such person, by nominating any member of the
party.
Article 49 [Elections]
The election of members in terms of Article 46 (1)(a) shall be on party lists and in
accordance with the principles of proportional representation as set out in
Schedule 4.
Article 50 [Duration]
Every National Assembly shall continue for a maximum period of five (5)
years, but it may before the expiry of its term be dissolved by the President
by Proclamation as provided for in Article 32 (3)(a) and 57 (1).
Article 51 [Speaker]
(1) At the first sitting of a newly elected National Assembly, the National
Assembly, with the Secretary acting as Chairperson, shall elect a member as
Speaker. The National Assembly shall then elect another member as
Deputy-Speaker. the Deputy-Speaker shall act as Speaker whenever the Speaker
is not available.
(2) The Speaker or Deputy-Speaker shall cease to hold office if he or she
ceases to be a member of the National Assembly. The Speaker or Deputy-Speaker
may be removed from office by resolution of the National Assembly, and may
resign from office or from the National Assembly in writing addressed to the
Secretary of the National Assembly.
(3) When the office of Speaker or Deputy-Speaker becomes vacant the National
Assembly shall elect a member to fill the vacancy.
(4) When neither the Speaker nor the Deputy-Speaker is available for duty,
the National Assembly, with the Secretary acting as Chairperson, shall elect
a member to act as Speaker.
Article 52 [Secretary
and other Officers]
(1) Subject to the provisions of the laws pertaining to the public service
and the directives of the National Assembly, the Speaker shall appoint a
person (or designate a person in the public service made available for that
purpose), as the Secretary of the National Assembly, who shall perform the
functions and duties assigned to such Secretary by this Constitution or by
the Speaker.
(2) Subject to the laws governing the control of public monies, the Secretary
shall perform his or her functions and duties under the control of the
Speaker.
(3) The Secretary shall be assisted by officers of the National
Assembly who shall be persons in the public service made available for that
purpose.
Article 53 [Quorum]
The presence of at least thirty-seven (37) members of the National Assembly
entitled to vote, other than the Speaker or the presiding member, shall be
necessary to constitute a meeting of the National Assembly for the exercise
of its powers and the performance of its functions.
Article 54 [Casting
Vote]
In the case of an equality of votes in the National Assembly, the Speaker or
the Deputy-Speaker or the presiding member shall have and may exercise a
casting vote.
Article 55 [Oath or
Affirmation]
Every member of the National Assembly shall make and subscribe to an oath or
solemn affirmation before the Chief Justice or a Judge designated by the
Chief Justice for this purpose, in the terms set out in Schedule 3.
Article 56 [Assent to
Bills]
(1) Every bill passed by Parliament in terms of this Constitution in order to
acquire the status of an Act of Parliament shall require the assent of the
President to be signified by the signing of the bill and the publication of
the Act in the Gazette.
(2) Where a bill is passed by a majority of two-thirds of all the members of
the National Assembly and has been confirmed by the National Council the
President shall be obliged to give his or her assent thereto.
(3) Where a bill is passed by a majority of the members of the National
Assembly but such majority consists of less than two-
thirds of all the members of the National Assembly and has been confirmed by
the National Council, but the President declines to assent to such bill, the
President shall communicate such dissent to the Speaker.
(4) If the President has declined to assent to a bill under Paragraph (3),
the National Assembly may reconsider the bill and, if it so decides, pass the
bill in the form in which it was referred back to it, or in an amended form
or it may decline to pass the bill. Should the bill then be passed by a
majority of the National Assembly it will not require further confirmation by
the National Council but, if the majority consists of less than two-thirds of
all the members of the National Assembly, the President shall retain his or
her power to withhold assent to the bill. If the President elects not to
assent to the bill, it shall then lapse.
Article 57
[Dissolution]
(1) The National Assembly may be dissolved by the President on the advice of
the Cabinet if the Government is unable to govern effectively.
(2) Should the National Assembly be dissolved a national election for a new
National Assembly and a new President shall take place within a period of
ninety (90) days from the date of such dissolution.
Article 58 [Conduct of
Business after Dissolution]
Notwithstanding the provisions of Article 57:
a) every person who at the date of its dissolution was a member of the
National Assembly shall remain a member of the National Assembly and remain
competent to perform the functions of a member until the day immediately
preceding the first polling day for the election held in pursuance of such
dissolution;
b) the President shall have power to summon Parliament for the
conduct of business during the period following such dissolution, up to and
including the day immediately preceding the first polling day for the
election held in pursuance of such dissolution, in the same manner and in all
respects as if the dissolution had not occurred.
Article 59 [Rules of
Procedure, Committees and Standing Orders]
(1) The National Assembly may make such rules of procedure for the conduct of
its business and proceedings and may also make such rules for the
establishing, functioning and procedures of committees, and formulate such
standing orders, as may appear to it to be expedient or necessary.
(2) The National Assembly shall in its rules of procedure make provision for
such disclosure as may be considered to be appropriate in regard to the
financial or business affairs of its members.
(3) For the purpose of exercising its powers and performing its functions any
committee of the National Assembly established in terms of Paragraph (1)
shall have the power to subpoena persons to appear before it to give evidence
on oath and to produce any documents required by it.
Article 60 [Duties,
Privileges and Immunities of Members]
(1) The duties of the members of the National Assembly shall include the
following:
a) all members of the National Assembly shall maintain the dignity and image
of the National Assembly both during the sittings of the National Assembly as
well as in their acts and activities outside the National Assembly;
b) all members of the National Assembly shall regard themselves as servants
of the people of Namibia and desist from any conduct by which they seek
improperly to enrich themselves or alienate themselves from the people.
(2) A private members' bill may be introduced in the National Assembly if
supported by one-third of all the members of the National Assembly.
(3) Rules providing for the privileges and immunities of members of the
National Assembly shall be made by Act of Parliament and all members shall be
entitled to the protection of such privileges and immunities.
Article 61 [Public
Access to Sittings]
(1) Save as provided in Paragraph (2), all meetings of the National Assembly
shall be held in public and members of the public shall have access to such
meetings.
(2) Access by members of the public in terms of Paragraph (1) may be denied
if the National Assembly adopts a motion supported by two-thirds of all its
members excluding such access to members of the public for specified periods
or in respect of specified matters. Such a motion shall only be considered if
it is supported by at least one-tenth of all the members of the National
Assembly and the debate on such motion shall not be open to members of the
public.
Article 62 [Sessions]
(1) The National Assembly shall sit:
a) at its usual place of sitting determined by the National Assembly, unless
the Speaker directs otherwise on the grounds of public interest, security or
convenience;
b) for at least two (2) sessions during each year, to commence and terminate
on such dates as the National Assembly from time to time determines;
c) for such special sessions as directed by Proclamation by the President from
time to time.
(2) During such sessions the National Assembly shall sit on such days and
during such times of the day or night as the
National Assembly by its rules and standing orders may provide.
(3) The day of commencement of any session of the National Assembly may be
altered by Proclamation by the President, if the President is requested to do
so by the Speaker on grounds of public interest or convenience.
Article 63 [Functions
and Powers]
(1) The National Assembly, as the principal legislative authority
in and over Namibia, shall have the power, subject to this Constitution, to
make and repeal laws for the peace, order and good government of the country
in the best interest of the people of Namibia.
(2) The National Assembly shall further have the power and function, subject
to this Constitution: a) to approve budgets for the effective
government and administration of the country; b) to provided for revenue and
taxation;
c) to take such steps as it considers expedient to uphold and defend this
Constitution and the laws of Namibia and to advance the objectives of
Namibian independence;
d) to consider and decide whether or not to succeed to such international
agreements as may have been entered into prior to Independence by
administrations within Namibia in which the majority of the Namibian people
have historically not enjoyed democratic representation and participation; e)
to agree to the ratification of or accession to international agreements
which have been negotiated and signed in terms of Article 32 (3)(e);
f) to receive reports on the activities of the Executive, including
para-statal enterprises, and from time to time to require any senior official
to appear before any of the committees of the National Assembly to account
for and explain his or her acts and programmes; g) to initiate, approve or
decide to hold a referendum on matters of national concern; h) to
debate and to advise the President in regard to any matters which by this
Constitution the President is authorised to deal with;
i) to remain vigilant and vigorous for the purpose of ensuring that the
scourges of apartheid, tribalism and colonialism do not again manifest
themselves in any form in a free and independent Namibia and to protect and
assist disadvantaged citizens of Namibia who have historically been the
victims of these pathologies;
j) generally to exercise any other functions and powers assigned to it by
this Constitution or any other law and any other functions incidental
thereto.
Article 64 [Withholding
of Presidential Assent]
(1) Subject to the provisions of this Constitution, the President shall be
entitled to withhold his or her assent to a bill approved by the National
Assembly if in the President's opinion such bill would upon adoption conflict
with the provisions of this Constitution.
(2) Should the President withhold assent on the grounds of such opinion, he
or she shall so inform the Speaker who shall inform the National Assembly
thereof, and the Attorney-General, who may then take appropriate steps to
have the matter decided by a competent Court.
(3) Should such Court thereafter conclude that such bill is not in conflict
with the provisions of this Constitution, the President shall assent to the
said bill if it was passed by the National Assembly by a two-thirds majority
of all its members. If the bill was not passed with such majority, the
President may withhold his or her assent to the bill, in which event the
provisions of Article 56 (3) and (4) shall apply.
(4) Should such Court conclude that the disputed bill would be in conflict
with any provisions of this Constitution, the said bill shall be deemed to
have lapsed and the President shall not be entitled to assent thereto.
Article 65 [Signature
and Enrolment of Acts]
(1) When any bill has become an Act of Parliament as a result of its having
been passed by Parliament, signed by the President and published in the Gazette,
the Secretary of the National Assembly shall promptly cause two (2) fair
copies of such Act in the English language to be enrolled in the office of
the Registrar of the Supreme Court and such copies shall be conclusive
evidence of the provisions of the Act.
(2) The public shall have the right of access to such copies subject to such
regulations as may be prescribed by Parliament to protect the durability of
the said copies and the convenience of the Registrar's staff.
Article 66 [Customary
and Common Law]
(1) 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.
(2) Subject to the terms of this Constitution, any part of such common law or
customary law may be repealed or modified by Act of Parliament, and the
application thereof may be confined to particular parts of Namibia or to
particular periods.
Article 67 [Requisite
Majorities]
Save as provided in this Constitution, a simple majority of votes cast in the
National Assembly shall be sufficient for the passage of any bill or
resolution of the National Assembly.
Chapter VIII The
National Council
Article 68
[Establishment]
There shall be a National Council which shall have the powers and functions
set out in this Constitution.
Article 69
[Composition]
(1) The National Council shall consist of two (2) members from each region
referred to in Article 102, to be elected from amongst their members
by the Regional Council for such region.
(2) The elections of members of the National Council shall be conducted
according to procedures to be prescribed by Act of Parliament.
Article 70 [Term of
Office of Members]
(1) Members of the National Council shall hold their seats for six (6) years
from the date of their election and shall be eligible for re-election.
(2) When a seat of a member of the National Council becomes vacant through
death, resignation or disqualification, an election for a successor to occupy
the vacant seat until the expiry of the predecessor's term of office shall be
held, except in the instance where such vacancy arises less than six (6) months
before the expiry of the term of the National Council, in which instance such
vacancy need not be filled. Such election shall be held in accordance with
the procedures prescribed by the Act of Parliament referred to in Article 69 (2).
Article 71 [Oath or
Affirmation]
Every member of the National Council shall make and subscribe to an oath or
solemn affirmation before the Chief
Justice, or a Judge designated by the Chief Justice for this purpose, in the
terms set out in Schedule 3.
Article 72
[Qualifications of Members]
No person shall be qualified to be a member of the National Council if he or
she is an elected member of a Local Authority, and unless he or she is
qualified under Article 47 (1)(a) to (e) to be a member of the
National Assembly
Article 73 [Chairperson
and Vice-Chairperson]
The National Council shall, before proceeding to the dispatch of any other
business, elect from its members a Chairperson and a Vice-Chairperson. The
Chairperson, or in his or her absence the Vice-Chairperson, shall preside
over sessions of the National Council. Should neither the Chairperson nor the
Vice-
Chairperson be present at any session, the National Council shall elect from
amongst its members a person to act as Chairperson in their absence during
that session.
Article 74 [Powers and
Functions]
(1) The National Council shall have the power to: a) consider in terms of
Article 75 all bills passed by the National Assembly;
b) investigate and report to the National Assembly on any subordinate
legislation, reports and documents which under law must be tabled in the
National Assembly and which are referred to it by the National Assembly for
advice;
c) recommend legislation on matters of regional concern for submission to and
consideration by the National Assembly;
d) perform any other functions assigned to it by the National Assembly or by
an Act of Parliament.
(2) The National Council shall have the power to establish committees and to
adopt its own rules and procedures for the exercise of its powers and the
performance of its functions. A committee of the National Council shall be
entitled to conduct all such hearings and collect such evidence as it
considers necessary for the exercise of the National Council's powers of
review and investigations, and for such purposes shall have the powers
referred to in Article 59 (3).
(3) The National Council shall in its rules of procedure make provision for
such disclosure as may be considered to be appropriate in regard to the
financial or business affairs of its members.
(4) The duties of the members of the National Council shall include the
following:
a) all members of the National Council shall maintain the dignity and image
of the National Council both during the sittings of the National Council as
well as in their acts and activities outside the National Council;
b) all members of the National Council shall regard themselves as servants of
the people of Namibia and desist from any conduct by which they seek improperly
to enrich themselves or alienate themselves from the people.
(5) Rules providing for the privileges and immunities of members of the
National Council shall be made by Act of Parliament and all members shall be
entitled to the protection of such privileges and immunities.
Article 75 [Review of
Legislation]
(1) All bills passed by the National Assembly shall be referred by the
Speaker to the National Council.
(2) The National Council shall consider bills referred to it under Paragraph
(1) and shall submit reports thereon with its recommendations to the Speaker.
(3) If in its report to the Speaker the National Council confirms a bill, the
Speaker shall refer it to the President to enable the President to deal with
it under Articles 56 and 64.
(4) (a) If the National Council in its report to the Speaker recommends that
the bill be passed subject to amendments proposed by it, such bill shall be
referred by the Speaker back to the National Assembly.
(b) If a bill is referred back to the National Assembly under Paragraph (a),
the National Assembly may reconsider the bill and may make any amendments
thereto, whether proposed by the National Council or not. If the bill is
again passed by the National Assembly, whether in the form in which it was
originally passed, or in an amended form, the bill shall not again be
referred to the National Council, but shall be referred by the Speaker to the
President to enable it to be dealt with under Article 56 and 64.
(5) (a) If a majority of two-thirds of all the members of the National
Council objects to the principle of a bill, this shall be mentioned in its
report to the Speaker. In that event, the report shall also indicate whether
or not the National Council proposes that amendments be made to the bill, if
the principle of the bill is confirmed by the National Assembly under
Paragraph (b), and if amendments are proposed, details thereof shall be set
out in the report.
(b) If the National Council in its report to the principle of the bill, the
National Assembly shall be required to reconsider the principle. If upon such
reconsideration the National Assembly reaffirms the principle of the bill by
a majority of two-thirds of all its members, the principle of the bill shall
no longer be an issue. If such two-thirds majority is not obtained in the
National Assembly, the bill shall lapse.
(6) (a) If the National Assembly reaffirms the principle of the bill under
Paragraph 5(b) by a majority of two-thirds of all its members, and the report
of the National Council proposed that in such event amendments be made to the
bill, the National Assembly shall then deal with the amendments proposed by
the National Council, and in that event the provisions of Paragraph 4(b)
shall apply mutatis mutandis.
(b) If the National Assembly reaffirms the principle of the bill under
Paragraph 5(b) by a majority of two-thirds of all its members, and the report
of the National Council did not propose that in such event amendments be made
to the bill, the National Council shall be deemed to have confirmed the bill,
and the Speaker shall refer the bill to the President to be dealt with under
Articles 56 and 64.
(7) Paragraphs (5) and (6) shall not apply to bills dealing with the levying
of taxes or the appropriation of public monies.
(8) The National Council shall report to the Speaker on all bills dealing
with the levying of taxes or appropriations of public monies within thirty
(30) days of the date on which such bills were referred to it by the Speaker,
and on all other bills within three (3) months of the date of referral by the
Speaker, failing which the National Council will be deemed to have confirmed
such bills and the Speaker shall then refer them promptly to the President to
enable the President to deal with the bills under Articles 56 and 64.
(9) If the President withholds his or her assent to any bill under Article 59 and the bill is then dealt with in terms of
that article, and is again passed by the National Assembly in the form in
which it was originally passed or in an amended from, such bill shall not
again be referred to the National Council, but shall be referred by the Speaker
directly to the President to enable the bill to be dealt with in terms of
Articles 56 and 64.
Article 76 [Quorum]
The presence of a majority of the members of the National Council shall be
necessary to constitute a meeting of the
National Council for the exercise of its powers and the performance of its
functions.
Article 77 [Voting]
Save as is otherwise provided in this Constitution, all questions in the
National Council shall be determined by a majority of the votes cast by
members present other than the Chairperson, or in his or her absence the
Vice-Chairperson or the member presiding at that session, who shall, however,
have and may exercise a casting vote in the case of an equality of votes.
Chapter IX The
Administration of Justice
Article 78 [The
Judiciary]
(1) The judicial power shall be vested in the Courts of Namibia,
which shall consist of: a) a Supreme Court of Namibia;
b) a High Court of Namibia;
c) Lower Courts of Namibia.
(2) The Courts shall be independent and subject only to this
Constitution and the law.
(3) No member of the Cabinet or the Legislature or any other person shall interfere
with Judges or judicial officers in the exercise of their judicial functions,
and all organs of the State shall accord such assistance as the Courts may
require to protect their independence, dignity and effectiveness, subject to
the terms of this Constitution or any other law.
(4) The Supreme Court and the High Court shall have the inherent jurisdiction
which vested in the Supreme Court of South-West Africa immediately prior to
the date of Independence, including the power to regulate their own procedures
and to make court rules for that purpose.
Article 79 [The Supreme
Court]
(1) The Supreme Court shall consist of a Chief Justice and such
additional Judges as the President, acting on the recommendation of the
Judicial Service Commission, may determine.
(2) The Supreme Court shall be presided over by the Chief Justice and shall
hear and adjudicate upon appeals emanating from the High Court, including
appeals which involve the interpretation, implementation and upholding of
this Constitution and the fundamental rights and freedoms guaranteed
thereunder. The Supreme Court shall also deal with matters referred to it for
decision by the Attorney-General under this Constitution, and with such other
matters as may be authorised by Act of Parliament.
(3) Three (3) Judges shall constitute a quorum of the Supreme Court when it
hears appeals or deals with matters referred to it by the Attorney-General
under this Constitution: provided that provision may be made by Act of
Parliament for a lesser quorum in circumstances in which a Judge seized of an
appeal dies or becomes unable to act at any time prior to judgment.
(4) The jurisdiction of the Supreme Court with regard to appeals shall be
determined by Act of Parliament.
Article 80 [The High
Court]
(1) The High Court shall consist of a Judge-President and such additional
Judges as the President, acting on the recommendation of the Judicial Service
Commission, may determine.
(2) The High Court shall have original jurisdiction to hear and adjudicate
upon all civil disputes and criminal prosecutions, including cases which
involve the interpretation, implementation and upholding of this Constitution
and the fundamental rights and freedoms guaranteed thereunder. The High Court
shall also
have jurisdiction to hear and adjudicate upon appeals from Lower Courts.
(3) The jurisdiction of the High Court with regard to appeals shall be
determined by Act of Parliament.
Article 81 [Binding
Nature of Decisions of the Supreme Court]
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 is contradicted by an Act of Parliament lawfully enacted.
Article 82 [Appointment
of Judges]
(1) All appointments of Judges to the Supreme Court and the High Court shall
be made by the President on the recommendation of the Judicial Service
Commission and upon appointment Judges shall make an oath or affirmation of
office in the terms set out in Schedule 1.
(2) At the request of the Chief Justice the President may appoint Acting
Judges of the Supreme Court to fill casual vacancies in the Court from time
to time, or as ad hoc appointments to sit in cases involving constitutional
issues or the guarantee of fundamental rights and freedoms, if in the opinion
of the Chief Justice it is desirable that such persons should be appointed to
hear such cases by reason of their special knowledge of or expertise in such
matters.
(3) At the request of the Judge-President, the President may appoint Acting
Judges of the High Court from time to time to fill casual vacancies in the
Court, or to enable the Court to deal expeditiously with its work.
(4) All Judges, except Acting Judges, appointed under this Constitution shall
hold office until the age of sixty-five (65) but the President shall be
entitled to extend the retiring age of any Judge to seventy (70). It shall
also be possible by Act of Parliament to make provision for retirement at
ages higher than those specified in this article.
Article 83 [Lower
Courts]
(1) Lower Courts shall be established by Act of Parliament and shall have the
jurisdiction and adopt the procedures prescribed by such Act and regulations
made thereunder.
(2) Lower Courts shall be presided over by Magistrates or other judicial
officers appointed in accordance with procedures prescribed by Act of
Parliament.
Article 84 [Removal of
Judges from Office]
(1) A Judge may be removed from office before the expiry of his or her tenure
only by the President acting on the recommendation of the Judicial Service
Commission.
(2) Judges may only be removed from office on the ground of mental incapacity
or for gross misconduct, and in accordance with the provisions of Paragraph
(3).
(3) The Judicial Service Commission shall investigate whether or not a Judge
should be removed from office on such grounds, and if it decides that the
Judge should be removed, it shall inform the President of its recommendation.
(4) If the deliberations of the Judicial Service Commission pursuant to this
article involve the conduct of a member of the Judicial Service Commission,
such Judicial Service Commission and, pending the outcome of such
investigations and recommendation, suspend the Judge from office.
Article 85 [The Judicial
Service Commission]
(1) There shall be a Judicial Service Commission consisting of the Chief
Justice, a Judge appointed by the President, the Attorney-General and two
members of the legal profession nominated in accordance with the provisions
of an Act of Parliament by the professional organisation {organization}
or organisations representing the interests of the legal profession in
Namibia.
(2) The Judicial Service Commission shall perform such functions as are
prescribed for it by this Constitution or any other law.
(3) The Judicial Service Commission shall be entitled to make such rules and
regulations for the purposes of regulating its procedures and functions as
are not inconsistent with this Constitution or any other law.
(4) Any casual vacancy in the Judicial Service Commission may be filled by
the Chief Justice or in his or her absence by the Judge appointed by the
President.
Article 86 [The
Attorney-General]
There shall be an Attorney-General appointed by the President in accordance
with the provisions of Article 32 (3)(1)(cc).
Article 87 [Powers and
Functions of the Attorney-General]
The powers and functions of the Attorney-General shall be:
a) to exercise the final responsibility for the office of the
Prosecutor-General;
b) to be in principal legal adviser to the President and Government.
c) to take all action necessary for the protection and upholding of the
Constitution;
d) to perform all such functions and duties as may be assigned to the
Attorney-General by Act of Parliament.
Article 88 [The
Prosecutor-General]
(1) There shall be a Prosecutor-General appointed by the President on the
recommendation of the Judicial Service Commission. No person shall be
eligible for appointment as Prosecutor-General unless such person:
a) possesses legal qualifications that would entitle him or her to practice
in all the Courts of Namibia;
b) is, by virtue of his or her experience, conscientiousness and integrity a
fit and proper person to be entrusted with the responsibilities of the office
of Prosecutor-General.
(2) The powers and functions of the Prosecutor-General shall be:
a) to prosecute, subject to the provisions of this Constitution, in the name
of the Republic of Namibia in criminal proceedings;
b) to prosecute and defend appeals in criminal proceedings in the High Court
and the Supreme Court;
c) to perform all functions relating to the exercise of such powers;
d) to delegate to other officials, subject to his or her control and
direction, authority to conduct criminal proceedings in any Court;
e) to perform all such other functions as may be assigned to him or her in
terms of any other law.
Chapter X The Ombudsman
Article 89
[Establishment and Independence]
(1) There shall be an Ombudsman, who shall have the powers and
functions set out in this Constitution.
(2) The Ombudsman shall be independent and subject only to this Constitution
and the law.
(3) No member of the Cabinet or the Legislature or any other person shall interfere
with the Ombudsman in the exercise of his or her functions and all organs of
the State shall accord such assistance as may be needed for the protection of
the independence, dignity and effectiveness of the Ombudsman.
(4) The Ombudsman shall either be a Judge of Namibia, or a
person possessing the legal qualifications which would entitle him or her to
practice in all the Courts of Namibia.
Article 90 [Appointment
and Term of Office]
(1) The Ombudsman shall be appointed by Proclamation by the President on the
recommendation of the Judicial Service Commission.
(2) The Ombudsman shall hold office until the age of sixty-
five (65) but the President may extend the retiring age of any Ombudsman to
seventy (70).
Article 91 [Functions]
The functions of the Ombudsman shall be defined and prescribed by an Act of
Parliament and shall include the following:
a) the duty to investigate complaints concerning alleged or apparent
instances of violations of fundamental rights and freedoms, abuse of power,
unfair, harsh, insensitive or discourteous treatment of an inhabitant of
Namibia by an official in the employ of any organ of Government (whether
central or local), manifest injustice, or corruption or conduct by such
official which would properly be regarded as unlawful, oppressive or unfair
in a democratic society;
b) the duty to investigate complaints concerning the functioning of the
Public Service Commission, administrative organs of the State, the defence
force, the police force and the prison service in so far as such complaints
relate to the failure to achieve a balanced structuring of such services or
equal access by all to the recruitment of such services or fair
administration in relation to such services;
c) the duty to investigate complaints concerning the over-
utilization of living natural resources, the irrational exploitation of
non-renewable resources, the degradation and destruction of ecosystems and
failure to protect the beauty and character of Namibia;
d) the duty to investigate complaints concerning practices and actions by
persons, enterprises and other private institutions where such complaints
allege that violations of fundamental rights and freedoms under this
Constitution have taken place;
e) the duty and power to take appropriate action to call for the remedying,
correction and reversal of instances specified in the preceding Paragraphs
through such means as are fair, proper and effective, including:
aa) negotiation and compromise between the parties concerned;
bb) causing the complaint and his or her finding thereon to be reported to
the superior of an offending person;
cc) referring the matter to the Prosecutor-General;
dd) bringing proceedings in a competent Court for an interdict or some other
suitable remedy to secure the termination of the offending action or conduct,
or the abandonment or alteration of the offending procedures;
ee) bringing proceedings to interdict the enforcement of such legislation or
regulation by challenging its validity if the offending action or conduct is
sought to be justified by subordinate legislation or regulation which is
grossly unreasonable or otherwise ultra vires;
ff) reviewing such laws as were in operation before the date of Independence
in order to ascertain whether they violate the letter or the spirit of this
Constitution and to make consequential recommendations to the President, the
Cabinet or the Attorney-
General for appropriate action following thereupon;
f) the duty to investigate vigorously all instances or alleged or suspected
corruption and the misappropriation of public monies by officials and to take
appropriate steps, including reports to the Prosecutor-General and the
Auditor-General pursuant thereto;
g) the duty to report annually to the National Assembly on the exercise of
his or her powers and functions.
Article 92 [Powers of
Investigation]
The powers of the Ombudsman shall be defined by Act of Parliament and shall
include the power:
a) to issue subpoenas requiring the attendance of any person before the
Ombudsman and the production of any document or record relevant to any
investigation by the Ombudsman;
b) to cause any person contemptuous of any such subpoena to be prosecuted
before a competent Court;
c) to question any person;
d) to require any person to co-operate with the Ombudsman and to disclose
truthfully and frankly any information within his or her knowledge relevant
to any investigation of the Ombudsman.
Article 93 [Meaning of
"Official"]
For the purposes of this chapter the word "official" shall, unless
the context otherwise indicate, include any elected or appointed official or
employee of any organ of the central or local Government, any official of a
para-statal enterprise owned or managed or controlled by the State, or in
which the State or the Government has substantial interest, or any officer of
the defence force, the police force or the prison service, but shall not
include a Judge of the Supreme Court or the High Court or, in so far as a
complaint concerns the performance of a judicial function, any other judicial
officer.
Article 94 [Removal
from Office]
(1) The Ombudsman may be removed from office before the expiry of his or her
term of office by the President acting on the recommendation of the Judicial
Service Commission.
(2) The Ombudsman may only be removed from office on the ground of mental
incapacity or for gross misconduct, and in accordance with the provisions of
Paragraph (3).
(3) The Judicial Service Commission shall investigate whether or not the
Ombudsman shall be removed from office on the grounds referred to in
Paragraph (2) and, if it decides that the Ombudsman shall be removed, it
shall inform the President of its recommendation.
(4) While investigations are being carried out into the necessity of the
removal of the Ombudsman in terms of this article, the President may, on the
recommendation of the Judicial Service Commission and, pending the outcome of
such investigations and recommendation, suspend the Ombudsman from office.
Chapter XI Principles
of State Policy
Article 95 [Promotion
of the Welfare of the People]
The State shall actively promote and maintain the welfare of the people by
adopting, inter alia, policies aimed at the following:
a) enactment of legislation to ensure equality of opportunity for women, to
enable them to participate fully in all spheres of Namibian society; in
particular, the Government shall ensure the implementation of the principle
of non-discrimination in remuneration of men and women; further, the
Government shall seek, through appropriate legislation, to provide maternity
and related benefits for women;
b) enactment of legislation to ensure that the health and strength of the
workers, men and women, and the tender age of children are not abused and
that citizens are not forced by economic necessity to enter vocations unsuited
to their age and strength; c) active encouragement of the formation of
independent trade unions to protect workers' rights and interests, and to
promote sound labour {labor} relations and fair employment practices;
d) membership of the International Labour Organisation (ILO)
and, where possible, adherence to and action in accordance with the
international Conventions and Recommendations of the ILO;
e) ensurance that every citizen has a right to fair and reasonable access to
public facilities and services in accordance with the law;
f) ensurance that senior citizens are entitled to and do receive a regular
pension adequate for the maintenance of a decent standard of living and the
enjoyment of social and cultural opportunities;
g) enactment of legislation to ensure that the unemployed, the incapacitated,
the indigent and the disadvantaged are accorded such social benefits and
amenities as are determined by Parliament to be just and affordable with due
regard to the resources of the State;
h) a legal system seeking to promote justice on the basis of equal
opportunity by providing free legal aid in defined cases with due regard to
the resources of the State;
i) ensurance that workers are paid a living wage adequate for the maintenance
of a decent standard of living and the enjoyment of social and cultural
opportunities;
j) consistent planning to raise and maintain an acceptable level of nutrition
and standard of living of the Namibian people and to improve public health;
k) encouragement of the mass of the population through education and other
activities and through their organisations {organizations} to
influence Government policy by debating its decisions; l) maintenance of
ecosystems, essential ecological processes and biological diversity of
Namibia and utilization of living natural resources on a sustainable basis
for the benefit of all Namibians, both present and future; in particular, the
Government shall provide measures against the dumping or recycling of foreign
nuclear and toxic waste on Namibian territory.
Article 96 [Foreign
Relations]
The State shall endeavour {endeavor} to ensure that in its
international relations it: a) adopts and maintains a policy of
non-alignment;
b) promotes international co-operation, peace and security;
c) creates and maintains just and mutually beneficial relations among
nations;
d) fosters respect for international law and treaty obligations;
e) encourages the settlement of international disputes by peaceful means.
Article 97 [Asylum]
The State shall, where it is reasonable to do so, grant asylum to persons who
reasonably fear persecution on the ground of their political beliefs, race,
religion or membership of a particular social group.
Article 98 [Principles
of Economic Order]
(1) The economic order of Namibia shall be based on the principles of a mixed
economy with the objective of securing economic growth, prosperity and a life
of human dignity for all Namibians.
(2) The Namibian economy shall be based, inter alia, on the following forms
of ownership:
a) public;
b) private;
c) joint public-private;
d) co-operative;
e) co-ownership;
f) small-scale family.
Article 99 [Foreign
Investments]
Foreign investments shall be encouraged within Namibia subject to the
provisions of an Investment Code to be adopted by Parliament.
Article 100 [Sovereign
Ownership of Natural Resources]
Land, water and natural resources below and above the surface of the land and
in the continental shelf and within the territorial waters and the exclusive
economic zone of Namibia shall belong to the State if they are not otherwise
lawfully owned.
Article 101
[Application of the Principles contained in this Chapter]
The principles of state policy contained in this chapter shall not of and by
themselves be legally enforceable by any Court, but shall nevertheless guide
the Government in making and applying laws to give effect to the fundamental
objectives of the said principles. The Courts are entitled to have regard to
the said principles in interpreting any laws based on them.
Chapter XII Regional
and Local Government
Article 102 [Structures
of Regional and Local Government]
(1) For purpose of regional and local government, Namibia shall be
divided into regional and local units, which shall consist of such region and
Local Authorities as may be determined and defined by Act of Parliament.
(2) The delineation of the boundaries of the regions and Local Authorities
referred to in Paragraph (1) shall be geographical only, without any
reference to the race, colour {color} or ethnic origin of the
inhabitants of such areas.
(3) Every organ of regional and local government shall have a Council as the
principal governing body, freely elected in accordance with this Constitution
and the Act of Parliament referred to in Paragraph (1), with an executive and
administration which shall carry out all lawful resolutions and policies of
such Council, subject to this Constitution and any other relevant laws.
(4) For the purposes of this chapter, a Local Authority shall include all
municipalities, communities, village councils and other organs of local
government defined and constituted by Act of Parliament.
(5) There shall be a Council of Traditional Leaders to be established in
terms of an Act of Parliament in order to advise the President on the control
and utilization of communal land and on all such other matters as may be
referred to it by the President for advice.
Article 103
[Establishment of Regional Councils]
(1) the boundaries of regions shall be determined by a Delimitation
Commission in accordance with the principles set out in Article 102 (2).
(2) The boundaries of regions may be changed from time to time and new
regions may be created from time to time, but only in accordance with the
recommendation of the Delimitation Commission.
(3) A Regional Council shall be established for every region the boundaries
of which have been determined in accordance with Paragraph (1) and (2).
Article 104 [The
Delimitation Commission]
(1) The Delimitation Commission shall consist of a Chairperson who shall be a
Judge of the Supreme Court or the High Court, and two other persons to be
appointed by the President with the approval of Parliament.
(2) The Delimitation Commission shall discharge its duties in accordance with
the provisions of an Act of Parliament and this
Constitution, and shall report thereon to the President.
Article 105
[Composition of Regional Councils]
Every Regional Council shall consist of a number of persons determined by the
Delimitation Commission for the particular region for which that Regional
Council has been established, and who are qualified to be elected to the
National Council.
Article 106 [Regional
Council Elections]
(1) Each region shall be divided into constituencies the boundaries of which
shall be fixed by the Delimitation Commission in accordance with the
pro-visions of an Act of Parliament and this Constitution: provided that
there shall be no fewer than six (6) and no more than twelve (12) constituencies
in each region.
(2) Each constituency shall elect one member to the Regional Council for the
region in which it is situated.
(3) The elections shall be by secret ballot to be conducted in accordance
with the provisions of an Act of Parliament, and the candidate receiving the
most votes in any constituency shall be the elected member of the Regional
Council for that constituency.
(4) All Regional Council elections for the various regions of Namibia shall
be held on the same day.
(5) The date for Regional Council elections shall be determined by the
President by Proclamation in the Gazette.
Article 107
[Remuneration of Members of Regional Councils]
The remuneration and allowances to be paid to members of Regional Councils
shall be determined by Act of Parliament.
Article 108 [Powers of
Regional Councils]
Regional Councils shall have the following powers:
a) to elect members to the National Council;
b) to exercise within the region for which they have been constituted such
executive powers and to perform such duties in connection therewith as may be
assigned to them by Act of Parliament and as may be delegated to them by the
President;
c) to raise revenue, or share in the revenue raised by the central Government
within the regions for which they have been established, as may be determined
by Act of Parliament;
d) to exercise powers, perform any other functions and make such by-laws or
regulations as may be determined by Act of Parliament.
Article 109 [Management
Committees]
(1) Each Regional Council shall elect from amongst its members a Management
Committee, which shall be vested with executive powers in accordance with the
provisions of an Act of Parliament.
(2) The Management Committee shall have a Chairperson to be elected by the
members of the Regional Council at the time that they elect the Management
Committee, and such Chairperson shall preside at meetings of his or her
Regional Council.
(3) The Chairperson and the members of the Management Committee shall hold
office for three (3) years and shall be eligible for re-election.
Article 110
[Administration and Functioning of Regional Councils]
The holding and conducting of meetings of Regional Councils, the filling of
casual vacancies on Regional Councils and the employment of officials by the
Regional Councils, as well as all other matters dealing with or incidental to
the administration and functioning of Regional Councils, shall be determined
by Act of Parliament.
Article 111 [Local
Authorities]
(1) Local Authorities shall be established in accordance with the provisions
of Article 102.
(2) The boundaries of Local Authorities, the election of Councils to
administer the affairs of Local Authorities, the method of electing persons
to Local Authority Councils, the methods of raising revenue for Local
Authorities, the remuneration of Local Authority Councillors and all other
matters dealing with or incidental to the administration and functioning of
Local Authorities, shall be determined by Act of Parliament.
(3) Persons shall be qualified to vote in elections for Local Authorities
Councils if such persons have been resident within the jurisdiction of a
Local Authority for not less than one (1) year immediately prior to such
election and if such persons are qualified to vote in elections for the
National Assembly.
(4) Different provisions may be made by the Act of Parliament referred to in
Paragraph (2) in regard to different types of Local Authorities.
(5) All by-laws or regulations made by Local Authorities pursuant to powers
vested in them by Act of Parliament shall be tabled in the National Assembly
and shall cease to be of force if a resolution to that effect is passed by
the National Assembly.
Chapter XIII The Public
Service Commission
Article 112
[Establishment]
(1) There shall be established a Public Service Commission which shall have
the function of advising the President on the matters referred to in Article 113 and of reporting to the National Assembly
thereon.
(2) The Public Service Commission shall be independent and act impartially.
(3) The Public Service Commission shall consist of a Chairperson and no fewer
than three (3) and no more than six (6) other persons nominated by the
President and appointed by the National Assembly by resolution.
(4) Every member of the Public Service Commission shall be entitled to serve
on such Commission for a period of five (5) years unless lawfully removed
before the expiry of that period for good and sufficient reasons in terms of
this Constitution and procedures to be prescribed by Act of Parliament. Every
member of the Public Service Commission shall be eligible for reappointment.
Article 113 [Functions]
The functions of the Public Service Commission shall be defined by Act of
Parliament and shall include the power:
a) to advise the President and the Government on:
aa) the appointment of suitable persons to specified categories of employment
in the public service, with special regard to the balanced structuring
thereof;
bb) the exercise of adequate disciplinary control over such persons in order
to assure the fair administration of personnel policy;
cc) the remuneration and the retirement benefits of any such persons;
dd) all other matters which by law pertain to the public service;
b) to perform all functions assigned to it by Act of Parliament;
c) to advise the President on the identity, availability and suitability of
persons to be appointed by the President to offices in terms of this
Constitution or any other law.
Chapter XIV The
Security Commission
Article 114
[Establishment and Functions]
(1) There shall be a Security Commission which shall have the function of
making recommendations to the President on the appointment of the Chief of
the Defence Force, the Inspector-
General of Police and the Commissioner of Prisons and such other functions as
may be assigned to it by Act of Parliament.
(2) The Security Commission shall consist of the Chairperson of the Public
Service Commission, the Chief of the Defence Force, the Inspector-General of
Police, the Commissioner of Prisons and two (2) members of the National
Assembly, appointed by the President on the recommendation of the National
Assembly.
Chapter XV The Police
and Defence Forces and the Prison Service
Article 115
[Establishment of the Police Force]
There shall be established by Act of Parliament a Namibian police force with
prescribed powers, duties and procedures in order to secure the internal
security of Namibia and to maintain law and order.
Article 116 [The
Inspector-General of Police]
(1) There shall be an Inspector-General of Police who shall be appointed by
the President in terms of Article 32 (4)(bb).
(2) The Inspector-General of Police shall make provision for a balanced
structuring of the police force and shall have the power to make suitable
appointments to the police force, to cause charges of indiscipline among
members of the police force to be investigated and prosecuted and to ensure
the efficient administration of the police force.
Article 117 [Removal of
the Inspector-General of Police]
The President may remove the Inspector-General of Police from office for good
cause and in the public interest and in accordance with the provisions of any
Act of Parliament which may prescribe procedures considered to be expedient
for this purpose.
Article 118
[Establishment of the Defence Force]
(1) There shall be established by Act of Parliament a Namibian Defence Force
with prescribed composition, powers, duties and procedures, in order to
defend the territory and national interests of Namibia.
(2) The President shall be the Commander-in-Chief of the Defence Force and
shall have all the powers and exercise all the functions necessary for that
purpose.
Article 119 [Chief on
the Defence Force]
(1) There shall be a Chief of the Defence Force who shall be appointed by the
President in terms of Article 32 (4)(c).
(2) The Chief of the Defence Force shall make provision for a balanced
structuring of the defence force and shall have the power to make suitable
appointments to the defence force, to cause charges of indiscipline among
members of the defence force to be investigated and prosecuted and to ensure
the efficient administration of the defence force.
Article 120 [Removal of
the Chief of the Defence Force]
The President may remove the Chief of the Defence Force from office for good
cause and in the public interest and in accordance with the provisions of any
Act of Parliament which may prescribe procedures considered to be expedient
for this purpose.
Article 121
[Establishment of the Prison Service]
There shall be established by Act of Parliament a Namibian prison service
with prescribed powers, duties and procedures.
Article 122
[Commissioner of Prisons]
(1) There shall be a Commissioner of Prisons who shall be appointed by the
President in terms of Article 32 (4)(c).
(2) The Commissioner of Prisons shall make provision for a balanced
structuring of the prison service and shall have the power to make suitable
appointments to the prison service, to cause charges on indiscipline among
members of the prison service to be investigated and prosecuted and to ensure
the efficient administration of the prison service.
Article 123 [Removal of
the Commissioner of Prisons]
The President may remove the Commissioner of Prisons from office for good
cause and in the public interest and in accordance with the provisions of any
Act of Parliament which may prescribe procedures considered to be expedient
for this purpose.
Chapter XVI Finance
Article 124 [Transfer
of Government Assets]
The assets mentioned in Schedule 5 shall vest in the Government of Namibia on
the date of Independence.
Article 125 [The State
Revenue Fund]
(1) The Central Revenue Fund of the mandated territory of South West Africa
instituted in terms of Section 3 of the Exchequer and Audit Proclamation,
1979 (Proclamation 85 of 1979) and Section 31(1) of Proclamation R101 of 1985
shall continue as the State Revenue Fund of the Republic of Namibia.
(2) All income accruing to the central Government shall be deposited in the
State Revenue Fund and the authority to dispose thereof shall vest in the
Government of Namibia.
(3) Nothing contained in Paragraph (2) shall preclude the enactment of any
law or the application of any law which provides that:
a) the Government shall pay any particular monies accruing to it into a fund
designated for a special purpose; or
b) any body or institution to which any monies accruing to the State have
been paid, may retain such monies or portions thereof for the purpose of
defraying the expenses of such body or institution; or
c) where necessary, subsidies be allocated to regional and Local Authorities.
(4) No money shall be withdrawn from the State Revenue Fund except in
accordance with an Act of Parliament.
(5) No body or person other than the Government shall have the power to
withdraw monies from the State Revenue Fund.
Article 126 [Appropriations]
(1) The Minister in charge of the Department of Finance shall, at least once
every year and thereafter at such interim stages as may be necessary, present
for the consideration of the National Assembly estimates of revenue,
expenditure and income for the prospective financial year.
(2) The National Assembly shall consider such estimates and pass pursuant
thereto such Appropriation Acts as are in its opinion necessary to meet the
financial requirements of the State from time to time.
Article 127 [The
Auditor-General]
(1) There shall be an Auditor-General appointed by the President on the
recommendation of the Public Service Commission and with the approval of the
National Assembly. The Auditor-General shall hold office for five (5) years
unless removed earlier under Paragraph (4) or unless he or she resigns. The
Auditor-General shall be eligible for
reappointment.
(2) The Auditor-General shall audit the State Revenue Fund and shall perform
all other functions assigned to him or her by the Government or by Act of
Parliament and shall report annually to the National Assembly thereon.
(3) The Auditor-General shall not be a member of the public service.
(4) The Auditor-General shall not be removed from office unless a two-thirds
majority of all the members of the National Assembly vote for such removal on
the ground of mental incapacity or gross misconduct.
Chapter XVII Central
Bank and National Planning Commission
Article 128 [The
Central Bank]
(1) There shall be established by Act of Parliament a Central Bank of the
Republic of Namibia which shall serve as the State's principal instrument to
control the money supply, the currency and the institutions of finance, and
to perform all other functions ordinarily performed by a central bank.
(2) The Governing Board of the Central Bank shall consist of a Governor, a
Deputy-Governor and such other members of the Board as shall be prescribed by
Act of Parliament, and all members of the Board shall be appointed by the
President in accordance with procedures prescribed by such Act of Parliament.
Article 129 [The
National Planning Commission]
(1) There shall be established in the office of the President a National
Planning Commission, whose task shall be to plan the priorities and direction
of national development.
(2) There shall be a Director-General of Planning appointed by the President
in terms of Article 32 (3)(i)(dd), who shall be the head of the
National Planning Commission and the principal adviser to the President in
regard to all matters pertaining to economic planning and who shall attend
Cabinet meetings at the request of the President.
(3) The membership, powers, functions and personnel of the National Planning
Commission shall be regulated by Act of Parliament.
Chapter XVIII Coming
into Force of the Constitution
Article 130 [Coming
into Force of the Constitution]
This Constitution as adopted by the Constituent Assembly shall come into
force on the date of Independence.
Chapter XIX Amendment
of the Constitution
Article 131
[Entrenchment of Fundamental Rights and Freedoms]
No repeal or amendment of any of the provisions of Chapter 3, in so far as such repeal or amendment
diminishes or detracts from the fundamental rights and freedoms contained and
defined in that chapter, shall be permissible under this Constitution, and no
such purported repeal or amendment shall be valid or have any force or effect.
Article 132 [Repeal and
Amendment of the Constitution]
(1) Any bill seeking to repeal or amend any provision of this Constitution
shall indicate the proposed repeals and/or amendments with reference to the
specific articles sought to be repealed and/or amended and shall not deal
with any matter other than the proposed repeals or amendments.
(2) The majorities required in Parliament for the repeal and/or amendment of
any of the provisions of this Constitution shall be:
a) two-thirds of all the members of the National Assembly; and
b) two-thirds of all the members of the National Council.
(3)(a) Notwithstanding the provisions of Paragraph (2), if a bill proposing a
repeal and/or amendment of any of the provisions of this Constitution secures
a majority of two-thirds of all the members of the National Assembly, but
fails to secure a majority of two-thirds of all the members of the National
Council, the President may by Proclamation make the bill containing the
proposed repeals and/or amendments the subject of a national referendum.
(b) The national referendum referred to in Paragraph (a) shall be conducted
in accordance with procedures prescribed for the holding of referenda by Act
of Parliament.
(c) If upon the holding of such a referendum the bill containing the proposed
repeals and/or amendments is approved by a two- thirds majority of all the
votes cast in the referendum, the bill shall be deemed to have been passed in
accordance with the provisions of this Constitution, and the President shall
deal it in terms of Article 56.
(4) No repeal or amendment of this paragraph or Paragraphs (2) or (3) in so
far as it seeks to diminish or detract from the majorities required in
Parliament or in a referendum shall be permissible under this Constitution,
and no such purported repeal or amendment shall be valid or have any force or
effect.
(5) Nothing contained in this article: a) shall detract in any way from the
entrenchment provided for in Article 131 of the fundamental rights and freedoms
contained and defined in Chapter 3;
b) shall prevent Parliament from changing its own composition or structures
by amending or repealing any of the provisions of this Constitution: provided
always that such repeals or amendments are effected in accordance with the
provisions of this Constitution.
Chapter XX The Law in
Force and Transitional Provisions
Article 133 [The First
National Assembly]
Notwithstanding the provisions of Article 46, the Constituent Assembly shall be deemed
to have been elected under Articles 46 and 49, and shall constitute the first National
Assembly of Namibia, and its term of office and that of the President shall
be deemed to have begun from the date of Independence.
Article 134 [Election
of the First President]
(1) Notwithstanding the provisions of Article 28, the first President of Namibia shall be
the person elected to that office by the Constituent Assembly by a simple
majority of all its members.
(2) The first President of Namibia shall be deemed to have been elected under
Article 28 and upon assuming office shall have all the
powers, functions, duties and immunities of a President elected under that article.
Article 135
[Implementation of this Constitution]
This Constitution shall be implemented in accordance with the provisions of
Schedule 7.
Article 136 [Powers of
the National Assembly prior to the Election of a National Council]
(1) Until elections for a National Council have been held:
a) all legislation shall be enacted by the National Assembly as if this
Constitution had not made provision for a National Council, and Parliament
had consisted exclusively of the National Assembly acting on its own without
being subject to
the review of the National Council;
b) this Constitution shall be construed as if no functions had been vested by
this Constitution in the National Council; c) any reference in Article 29, 56, 75 and 132 to the National Council shall be ignored:
provided that nothing contained in this paragraph shall be construed as
limiting in any way the generality of Paragraph (a) and (b).
(2) Nothing contained in Paragraph (1) shall detract in any way from the
provisions of Chapter 8 or any other provision of this Constitution
in so far as they make provision for the establishment of a National Council,
elections to the National Council and its functioning after such elections
have been held.
Article 137 [Elections
of the First Regional Councils and the First National Council]
(1) The President shall by Proclamation establish the first Delimitation
Commission which shall be constituted in accordance with the provisions of
Article 104 (1), within six (6) months of the date of
Independence.
(2) Such Proclamation shall provide for those matters which are referred to
in Articles 102 to 106, shall not be inconsistent with this
Constitution and shall require the Delimitation Commission to determine
boundaries of regions and Local Authorities for the purpose of holding Local
Authority and Regional Council elections.
(3) The Delimitation Commission appointed under such Proclamation shall
forthwith commence its work, and shall report to the President within nine
(9) months of its appointment: provided that the National Assembly may by
resolution and for good cause extend the period within which such report
shall be made.
(4) Upon receipt of the report of the Delimitation Commission the President
shall as soon as reasonably possible thereafter establish by Proclamation the
boundaries of regions and Local Authorities in accordance with the terms of
the report.
(5) Elections for Local Authorities in terms of Article 111 shall be held on a date to be fixed by the
President by Proclamation, which shall be a date within six (6) months of the
Proclamation referred to in Paragraph (4), or within six (6) months of the
date on which the legislation referred to in Article 111 has been enacted, whichever is the later:
provided that the National Assembly may by resolution and for good cause
extend the period within such elections shall be held.
(6) Elections for Regional Councils shall be held on a date to be fixed by
the President by Proclamation, which shall be a date within one (1) month of
the date of the elections referred to in Paragraph (5), or within one (1)
month of the date on which the legislation referred to in Article 106 (3) has been enacted, whichever is the
later: provided that the National Assembly may by resolution and for good
cause extend the period within which such elections shall be held.
(7) Elections for the first National Council shall be held on a date to be
fixed by the President by Proclamation, which shall be a date within one (1)
month of the date of the elections referred to in Paragraph (6), or within
one (1) month of the date on which the legislation referred to in Article 69 (2) has been enacted, whichever is the
later: provided that the National Assembly may by resolution and for good
cause extend the period within which such elections shall be held.
Article 138 [Courts and
Pending Actions]
(1) The Judge-President and other Judges of the Supreme Court of South-West
Africa holding office at the date on which this Constitution is adopted by
the Constituent Assembly shall be deemed to have been appointed as the
Judge-President and Judges of the High Court of Namibia under Article _82 on the date of Independence, and upon
making the oath or affirmation of office in the terms set out in Schedule 1,
shall become the first Judge-President and Judges of the High Court of Namibia:
provided that if the Judge-President or any such Judges are sixty-five (65)
years of age or older on such date, it shall be deemed that their
appointments have been extended until the age of seventy (70) in terms of
Article 82 (4).
(2)(a) The laws in force immediately prior to the date of Independence
governing the jurisdiction of Courts within Namibia, the right of audience
before such Courts, the manner in which procedure in such Courts shall be
conducted and the power and authority of the Judges, Magistrates and other
judicial officers, shall remain in force until repealed or amended by Act of
Parliament, and all proceedings pending in such Courts at the date of
Independence shall be continued as if such Courts had been duly constituted
as Courts of the Republic of Namibia when the proceedings were instituted.
(b) Any appeal noted to the Appellate Division of the Supreme Court of South
Africa against any judgment or order of the Supreme Court of South-West
Africa shall be deemed to have been noted to the Supreme Court of Namibia and
shall be prosecuted before such Court as if that judgment or order appealed
against had been made by the High Court of Namibia and the appeal had been
noted to the Supreme Court of Namibia.
(c) All criminal prosecutions initiated in Courts within Namibia prior to the
date of Independence shall be continued as if such prosecutions had been
initiated after the date of Independence in Courts of the Republic of
Namibia.
(d) All crimes committed in Namibia prior to the date of Independence which
would be crimes according to the law of the Republic of Namibia if it had
then existed, shall be deemed to constitute crimes according to the law of
the Republic of Namibia, and to be punishable as such in and by the Courts of
the Republic of Namibia.
(3) Pending the enactment of the legislation contemplated by Article 79:
a) the Supreme Court shall have the same jurisdiction to hear and determine
appeals from Courts in Namibia as was previously vested in the Appellate
Division of the Supreme Court of South Africa;
b) the Supreme Court shall have jurisdiction to hear and determine matters referred
to it for a decision by the Attorney-
General under this Constitution;
c) all persons having the right of audience before the High Court shall have
the right of audience the Supreme Court;
d) three (3) Judges shall constitute a quorum of the Supreme Court when it
hears appeals or deals with matters under Paragraphs (a) and (b): provided
that if any such Judge dies or becomes unable to act after the hearing of the
appeal or such matter has commenced, but prior to judgement, the law
applicable in such circumstances to the death or inability of a Judge of the
High Court shall apply mutatis mutandis;
e) until rules of the Supreme Court are made by the Chief Justice for the
noting and prosecution of appeals and all matters incidental thereto, the
rules which regulated appeals from the Supreme Court of South-West Africa to
the Appellate Division of the Supreme Court of South Africa, and were in
force immediately prior to the date of Independence, shall apply mutatis
mutandis.
Article 139 [The
Judicial Service Commission]
(1) Pending the enactment of legislation as contemplated by Article 85 and the appointment of a Judicial Service
Commission thereunder, the Judicial Service Commission shall be appointed by
the President by Proclamation and shall consist of the Chief Justice, a Judge
appointed by the President, the Attorney-General, an advocate nominated by
the Bar Council of Namibia and an attorney nominated by the Council of the Law
Society of South-West Africa: provided that until the first Chief Justice has
been appointed, the President shall appoint a second Judge to be a member of
the Judicial Service Commission who shall hold office thereon until the Chief
Justice has been appointed. The Judicial Service Commission shall elect from
amongst its members as its first meeting the person to preside at its
meetings until the Chief Justice has been appointed. The first task of the
Judicial Service Commission shall be to make a recommendation to the
President with regard to the appointment of the first Chief Justice.
(2) Save as aforesaid the provisions of Article 85 shall apply to the functioning of the
Judicial Service Commission appointed under Paragraph (1), which shall have
all the powers vested in the Judicial Service Commission by this
Constitution.
Article 140 [The Law in
Force at the Date of Independence]
(1) 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.
(2) Any powers vested by such laws in the Government, or in a Minister or
other official of the Republic of South Africa shall be deemed to vest in the
Government of the Republic of Namibia or in a corresponding Minister or
official of the Government of the Republic of Namibia, and all powers, duties
and functions which so vested in the Government Service Commission, shall
vest in the Public Service Commission referred to in Article 112.
(3) Anything done under such laws prior to the date of Independence by the
Government, or by a Minister or other official of the Republic of South
Africa shall be deemed to have been done by the Government of the Republic of
Namibia or by a corresponding Minister or official of the Government of the
Republic of Namibia, unless such action is subsequently repudiated by an Act
of Parliament, and anything so done by the Government Service Commission
shall be deemed to have been done by the Public Service Commission referred
to in Article 112, unless it is determined otherwise by an
Act of Parliament.
(4) Any reference in such laws to the President, the Government, a Minister
or other official or institution in the Republic of South Africa shall be
deemed to be a reference to the President of Namibia or to a corresponding
Minister, official or institution in the Republic of Namibia and any
reference to the Government Service Commission or the government service,
shall be construed as a reference to the Public Service Commission referred
to in Article 112 or the public service of Namibia.
(5) For the purpose of this article the Government of the Republic of South
Africa shall be deemed to include the Administration of the
Administrator-General appointed by the Government of South Africa to
administer Namibia, and any reference to the Administrator-General in
legislation enacted by such Administration shall be deemed to be a reference
to the President of Namibia, and any reference to a Minister or official of
such Administration shall be deemed to be a reference to a corresponding
Minister or official of the Government of the Republic of Namibia.
Article 141 [Existing
Appointments]
(1) Subject to the provisions of this Constitution, any person holding office
under any law in force on the date of
Independence shall continue to hold such office unless and until he or she
resigns or is retired, transferred or removed from office in accordance with
law.
(2) Any reference to the Attorney-General in legislation in force immediately
prior to the date of Independence shall be deemed to be a reference to the
Prosecutor-General, who shall exercise his or her functions in accordance
with this Constitution.
Article 142
[Appointment of the First Officers of Defence Force, Police, and Prisons]
The President shall, in consultation with the leaders of all political
parties represented in the National Assembly, appoint by Proclamation the
first Chief of the Defence Force, the first Inspector-General of Police and
the first Commissioner of Prisons.
Article 143 [Existing
International Agreements]
All existing international agreements binding upon Namibia shall remain in
force, unless and until the National Assembly acting under Article 63 (2)(d) otherwise decides.
Chapter XXI Final
Provisions
Article 144
[International Law]
Unless otherwise provided by this Constitution or Act of Parliament, the
general rules of public international law and international agreements
binding upon Namibia under this Constitution shall form part of the law of
Namibia.
Article 145 [Saving]
(1) Nothing contained in this Constitution shall be construed as imposing
upon the Government of Namibia:
a) any obligations to any other State which would not otherwise have existed
under international law;
b) any obligations to any person arising out of the acts or contracts of
prior Administrations which would not otherwise have been recognised by
international law as binding upon the Republic of Namibia.
(2) Nothing contained in this Constitution shall be construed as recognising
in any way the validity of the Administration of Namibia by the Government of
the Republic of South Africa or by the Administrator-General appointed by the
Government of the Republic of South Africa to administer Namibia.
Article 146
[Definitions]
(1) Unless the context otherwise indicates, any word or expression in this
Constitution shall bear the meaning given to such word or expression in any
law which deals with the interpretation of statutes and which was in
operation within the territory of Namibia prior to the date of Independence.
(2)(a) The word "Parliament" shall mean the National Assembly and,
once the first National Council has been elected, shall mean the National
Assembly acting, when so required by this Constitution, subject to the review
of the National Council.
(b) Any reference to the plural shall include the singular and any reference
to the singular shall include the plural.
(c) Any references to the "date of Independence" or
"Independence" shall be deemed to be a reference to the day as of
which Namibia is declared to be independent by the Constituent Assembly.
(d) Any references to the "Constituent Assembly" shall be deemed to
be a reference to the Constituent Assembly elected for Namibia during
November 1989 as contemplated by United Nations Security Council Resolution
435 of 1978.
(e) Any references to "Gazette" shall be deemed to be a reference
to the Government Gazette of the Republic of
Namibia.
Article 147 [Repeal of
Laws]
The laws set out in Schedule 8 are hereby repealed.
Article 148 [Short
Title]
This Constitution shall be called the Namibian Constitution.
© 1994 - 7. Jan.
2004 / For corrections please contact A. Tschentscher.
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