Constitutional Law Examination Guide

Constitutional Law Examination Guide
1. Discuss the meaning of concept constitutionalism
Definition
Constitutionalism is the tenet that governs the authenticity of government activity,
and it implies something unmistakeably more significant than the idea of legality that
requires official conduct to be in accordance with pre-fixed legal rules. In a more
extensive point of view constitutionalism checks whether the act of a government is
legitimate and whether officials execute their open obligations as per laws
pre-fixed/pre-decided ahead of time.
Relationship between constitutionalism and the constitution.
The pre-fixed laws determined in advance that must be followed by public officials
are layered forward in a constitution as many authors have acknowledged that, from
a more extensive perspective, the idea of constitutionalism is a prerequisite for the
existence and presence of a legitimate constitution. As constitutionalism embraces
popular sovereignty, separation of powers (checks and balances), rule of law and an
independent judiciary as the principle fortifications of constitutionalism, the
constitution makes sure that these fortresses are by all methods regarded and
maintained.
In-depth look at the essential features of Constitutionalism
Popular Sovereignty
Under this fundamental component of constitutionalism the public is the wellspring of

all governmental authority thus contemplating that legitimacy of any governmental
power radiates from the consent of the public, the public is involved in the decision-
making process which may take on different forms, the most obvious one being the
election of representatives; citizens of a specific nation or state are qualified to vote
for representatives of their choice; however, in any case, however such a political
race ought to be reasonable, free and transparent. .Despite the fact that there are
certain sovereign entities which are empowered with authoritative and administrative
powers to oversee, ultimate sovereignty dwells in the country and desire of the
individuals.
At the point when public officials fail to represent the interest of the public and in the
long run the general population loses confidence in them, public officials may be
recalled from public duty before the expiry of their term of office. Before a
government makes a decision or makes any move which influences and affects the
interest of the public, constitutionalism requires it to consult the public via a plebiscite
(referendum) thus enabling it to hear what the public says. A model worth
referencing is how the President of the Republic of France may (on the basis of a
proposal from the government when parliament is in session or on a joint motion of
the two assemblies) submit to a referendum any government bill which deals with the
organization of the public authorities or with reforms relating to the economic or
social policy of the nation or which provides for authorization to ratify a treaty
although not contrary to the constitution. From such an example one can assume
that a referendum is a mechanism by which sovereignty of the public is manifested
and expressed.
Separation of Powers (Checks and Balances)
Under constitutionalism, power is not concentrated in one organ of the state it is

isolated equally among the three organs of the state i.e., the legislature, the
executive and the judiciary, and is thus emphasized that in order to forestall and
prevent dictatorship, tyranny and protect fundamental rights of the individual,
established mechanisms need to be enforced and upheld to place constitutional and
legal restraints on governmental power and the various organs of state. For
example, the legislature which has law-making power is not allowed to exercise the
roles of the executive and the judiciary is not allowed to execute the laws which it
deciphers and interpret.
Namibia can be used as an example of how checks and balances are used to
guarantee that each branch of government remains independent from the other one.
Each organ of state is served with special powers intendant to serve as checks on
the exercise of functions by other arms in order to create equilibrium. In accordance
with the responsibility of the executive branch, the president and his cabinet during
the consideration of the official budget are stipulated under article 32(2) to attend
parliament, and during such a session the President shall address Parliament on the
state of nation, on future policies of government and how the past policies have
performed during the previous year; the president should also be available to answer
questions.
The legislative branch is kept in check by the executive by virtue of article 64 which
empowers the president to veto legislation and this branch of government is also
kept in check by the judiciary by virtue of article 25 which empowers the judiciary to
review legislation and declare it unconstitutional. The Judicial branch of government
is kept in check by the executive branch of government by virtue of article 82(1)
which stipulates that all appointments of judges to the Supreme Court and High
Court should be made by the President on the recommendation of the Judicial
Service Commission. Article 81 further stipulates all decisions taken by the courts
should not contradict any parliamentary act lawfully enacted.
Rule of Law
Rule of law represents supremacy of law as it indicates a government of laws and

not of men so to say that the rule of law deals with limits on the exercise of
governmental power. The rule of Law and constitutionalism are closely interrelated
as they both deal with the limits on the exercise of the powers of government and
one of the key prerequisites of the rule of law is for the courts and state prosecution
services to be independent from political obstruction from the executive and any
other source. The rule of law envisages the following:
• No one is punishable except for a distinct breach of law established in the ordinary
legal manner before the ordinary courts of the land; whereas if an offence is not
categorized as a criminal act by a constitutionally mandated lawmaking organ, it is
not treated as a criminal act and is not punishable this assumption heavily leans on
the principle of legality
•No individual is exempt from the laws that apply to everyone else; to break it down
into simpler terms under the law no person is to be discriminated on the basis of
status, wealth, race, nationality, gender, sex, etc. every person from the head of
state down to a cleaner should equally become subject to the law.
•Courts play a crucial role in protecting and ensuring the rights of individuals; the
mere recognition of rights in a constitution alone does not secure or ensure the rights
of an individual. Rights are to be protected or defended through the medium of
courts whenever they are infringed.
Independent Judiciary
An independent judiciary is the cornerstone of a free society and rule of law in
ensuring and respecting the rights of individuals. An independent judiciary is also
necessary to maintain the supremacy of a constitution and government is obliged to
act according to laws set by the legislature. If the legislature comes up with a law
which is contrary to the constitution, an independent judiciary, through the principle
of judicial or constitutional review, has the power to declare it null and void.
Principle of legality (nullum crimen sine lege)
Principle of legality can be defined as a mechanism to ensure that the state, its
organs and its officials do not consider themselves to be above the law in the
exercise of their functions but remain subject to it. On paragraph 49 in the case of
President of the Republic of Namibia and Others v Anhui Foreign Economic
Construction Group Corporation Ltd and Another it is envisaged that in the
exercise of governmental power and within the confines of the rule of law and the
principle of legality it is required that public officials and institutions may only act in
accordance with powers conferred upon them by law. The fountain of governmental
power should emanate from the Constitution as per article 1(6) or any other law.
The two main theories that this principle relates to are the doctrine of substantive
justice and the doctrine of strict legality. These two theories vehemently mean that a
person may only be held criminally liable and punished if at the moment that a
transgression was committed “it was regarded as a crime under the relevant legal
order; in other words under the applicable law”.
Theory of substantive justice
The Namibian Constitution in article 12 1(a) contains indications that Namibia

adheres to the legality principle of substantive justice as it envisaged that 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.
Theory of strict legality

Deciphering from Article 12 (3) of the Namibian Constitution we can also conclude
that Namibia adheres to the legality principle of strict legality as under it is stipulated
that 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.
Namibian Constitution
A constitution is the incomparable supreme national law and has, among its
essential features and functions, the dispersion of power between the state and
society, as well as among the various branches of government , resounding the
expressions of Judge Parker the constitution is not simply a statute that precisely
characterizes the structure of government and the relations between the government
and those governed, it is a ‘’mirror reflecting the national soul’’ so to say that the
constitution is an identification of ideals and aspirations of a nation; the articulation of
the values bonding its people and discipline its government. In interpreting the
constitution it was said on paragraph 329 by Chief Justice Mahomed J in the case of
Government of the Republic of Namibia and Another v Cultura 2000 and
Another, that the Constitution is an organic instrument. Although it is enacted in the
form of a statute, it is sui generis. It must broadly, liberally and purposively be
interpreted so as to avoid the `austerity of tabulated legalism' and so as to enable it
to continue to play a creative and dynamic role in the expression and the
achievement of the ideals and aspirations of the nation, in the articulation of the
values bonding its people and in disciplining its. From the above definition one can
infer that irrespective of social status, religious beliefs or political affiliations a
constitution is what unites the nation, ensures and protects the future aspirations of
the people.
Historical Development of the Namibian Constitution
The corpus of the Namibian Constitution was influenced by a lot of factors with the
main ones being the 1982 constitutional principles drafted by the Western Contact
Group in Geneva. The Western Contact Group established minimum guarantees for
the constitutional process and the eventual Constitution, including a Bill of Rights as
part of the Constitution, an independent judiciary and a multi-party democracy. Eight
supplementary points were added to Security Council Resolution 435. Although
SWAPO initially rejected the Constitutional Principles, they eventually agreed that it
could become the foundation for the independence process and the Namibian
Constitution. Since SWAPO has confirmed similar principles back in 1976, their
rejection was possibly based on the fact that they did not trust the Western powers
and did not appreciate the idea that North American and European states and former
colonial powers played such an important role in the future of Namibia.
The Principles eventually became the foundation on which the Constitution was built.
At the first meeting of the Constituent Assembly on 21 November 1989, Theo-Ben
Gurirab of the SWAPO Party proposed that the Assembly adopted the Principles as
a framework to draw up a constitution for Namibia. The proposal was unanimously
adopted.
In the infancy stage of a post independent Namibia, the status of the 1982 Principles
was raised on a regular basis. In Ex Parte Attorney-General: In Re: The
Constitutional Relationship between the Attorney-General and the Prosecutor-
General counsel for the Prosecutor- General relied strongly on the Principles in his
argument in favour of an independent Prosecutor-General. Apart from the
independence of the judiciary, the protection of land (or property rights) also formed
part of the 1982 Principles. The SWAPO government has often referred to the fact
that the struggle was about land and therefore real reconciliation can only take place
if it goes hand in hand with an aggressive land reform programme that will assist the
government programme of poverty alleviation.
Checks and Balances
Each state organ is served with special powers designed to serve as checks on the
exercise of functions by other arms in order to create equilibrium.
Checks and balances against the Executive:
1.Art 29(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
the office of President.
2. Art 29(3) - A person shall hold office as President for not more than two terms.
3. Art 32(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, reasonable 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.
4. Art 31(3)(b) - After a President has vacated that office: 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. (Impeachment)
5. Art 32(2) - In accordance with the responsibility of the executive branch of
Government to the legislative branch, the President and the Cabinet shall each year
dur ing 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.
6. Art 25 – empowers judiciary to declare invalid any executive action which

abolishes or abridges Chapter 3’s fundamental rights and freedoms.
7. Art 18 - 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.
8. Art 39 - 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.
9. Art 41 - 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.
10. Art 56(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
11. Art 63(2)(a) - The National Assembly shall further have the power and function,
subject to this Constitution: to approve budgets for the effective government and
administration of the country;
12. Art 40(e) - The members of the Cabinet shall have the following functions: 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;
13. Art 27(3) - Except as may be otherwise provided in this Constitution or by law,
the President shall in the exercise of his or her functions be obliged to act in
consultation with the Cabinet
Checks and balances against the Legislature:
1. Art 1(6) - This Constitution shall be the Supreme Law of Namibia.
2. Art 25 – empowers judiciary to review legislation and declare it unconstitional.
3. Art 64 – Empowers President to veto legislation
4. Art 32(3)(a) RW 57(1) – Empowers President to dissolve parliament

5. Art 47(1)(a) - No persons may become members of the National Assembly if they:
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
6. Art 56(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 8signified by the signing of the bill and the publication of the Act in the Gazette.
7. Art 63(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.
8. Art 45 - 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.
Checks and balances against the Judiciary:
1. Art 82(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 hereof.
2. Art 1(6) RW Art 78(3) – Constitution is supreme law and courts must abide
3. Art 84(1) + (2) - 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 hereof. Judges may only be removed from
office on the ground of mental incapacity or for gross misconduct, and in accordance
with the provisions of Sub-Article (3) hereof
4. Art 81 - 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.
BRANCHES OF GOVERNMENT
Legislative branch of government
The legislature as outlined in Chapters 7 and 8 of the Constitution is made up of the

National Assembly and the National Council. The legislative power of Namibia is
vested in the National Assembly, subject to the assent of the President and the
power of review of the National Council, where applicable.
National Assembly
Article 44 confers legislative power to the National Assembly as it is envisaged that it

has the power to pass laws with the assent of the President. Article 45 outlines the
representative nature as it is stipulated that these members are compelled to carry
out their duties within the confines of the constitution.
Composition of the National Assembly
The National Assembly is comprised of 96 members who after every 5 years are
elected by the people. As per article 17 (2) a citizen is eligible to vote once they
acquire the majority age which is 18. In casu, the president shall appoint not more
than eight (8) non-voting members who by virtue of article 32(5)(c) based on their
special expertise, status, skill or experience. It is however stipulated under article 47
that no person shall become a member of parliament if they are;
 Unrehabilitated insolvents
 Unsound mind and have been so declared by a competent Court; or
 Remunerated members of the public service of Namibia; or
 Members of the National Council, Regional Councils or Local Authorities
 At any time after independence a person has 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.
Functions and Powers
Article 63 of the Namibian Constitution Highlights the Functions and Powers of the
National Assembly
 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.
(63 (1)
 Approve budgets for the effective government and administration of the
country 63 (2(a)
 Provide for revenue and taxation. 63 (2(b)
 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. 63 (2 (c)
 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; 63
2(d)
 To agree to the ratification of or accession to international agreements which
have been negotiated and signed in terms of Article 32(3)(e) hereof;
 To receive reports on the activities of the Executive, including para-statal
enterprises, and from time to time to require any senior official thereof to
appear before any of the committees of the National Assembly to account for
and explain his or her acts and programmes; 63 (2)(e)
 To initiate, approve or decide to hold a referendum on matters of national
concern; 63 (2) (f)
 To debate and to advise the President in regard to any matters which by this
Constitution the President is authorised to deal with; 63 (2) (g)
 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. 63 (2) (h)
 Generally to exercise any other functions and powers assigned to it by this
Constitution or any other law and any other functions incidental thereto. 63
(2) (i)
National Council
Article 68 provides for the establishment of the National Council
Composition
According to article 69 the National Council shall consist of three (3) members from
each region consistent with Article 102 to be elected from amongst their members by
the Regional Council for such region. Such members of the National Council shall
hold their seats for five (5) years from the date of their election and shall be eligible
for re-election (Article 70). Subsequently 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) hereof. 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) hereof to be a member of the National Assembly.
Functions and Power
Article 74 provides for the functions and powers of the National Council which is to;
 Consider in terms of Article 75 hereof all bills passed by the National

Assembly;
 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;
 Recommend legislation on matters of regional concern for submission to
and consideration by the National Assembly;
 Reform any other functions assigned to it by the National Assembly or by an
Act of Parliament.
 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) hereof.
 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.
LAW MAKING PROCESS
Step 1 in the statutory law making process
The first step in the law making process is to prepare a bill. This is the bill
origination stage which is the draft proposal of the law.4A bill can be suggested by
the; President; Cabinet; Member of Parliament; Law Reform and Development
Commission; Interested member of the public. Generally, the Bill predominantly
emanates from the Executive Branch. The president under article 32 (5) (b) of the
Constitution the President is empowered to initiate laws for consideration by the
National Assembly whilst this similar power is conferred to the cabinet by article 40
(b) of the Constitution .The Land Reform and Development Commission (LRDC) is
empowered under the Law Reform and Development Commission Act, to
undertake research and to examine all branches of Namibian law in order to make
recommendations for the reform and development thereof.

The second step is rooted in the pre-parliamentary procedure. This procedure
require, consultations with the Office of the Attorney General in order to ascertain
that the bill or proposed legislation is not in conflict with the Namibian Constitution
since the Constitution is lex fundamentalis and all laws must be aligned to the
Constitution. Once the Attorney General is satisfied that the envisaged Bill does
not infringe on the Constitution, a memorandum is prepared for the Cabinet
Committee on Legislation (CCL) by the Ministry sponsoring. The memorandum must
be signed by the Minister and six copies of each memorandum and the Bill must be
furnished to the Secretary of the CCL. This memorandum states the mischief the Bill
intends to remedy. The CCL then determines if the Bill can be submitted to Cabinet
or whether further consultations are required. If the CCL is satisfied that the Bill is
ready for Cabinet submission, a certificate to this effect issued to the sponsoring
Ministry.
In accordance with the outcome of the decision of the CCL, the sponsoring Ministry
then submit the Bill to Cabinet requesting for an in principle approval. If the Bill is
approved by Cabinet in principle, by virtue of a written confirmation to that effect, the
sponsoring ministry must acknowledge and confirm such receipt and further submit
such approval with all supporting documents to the chief of the legal drafting
department within the Ministry of Justice with the instruction to draft a Bill, and once
the drafters successfully executes the instruction in terms of finalising the wording of
the Bill, the sponsoring Ministry must confirm in writing that they are satisfied with the
Bill. After receipt of the satisfaction letter from the sponsoring, the Bill must be
furnished to the Attorney-General through the secretary of the CCL.
The Attorney-General, on receipt of the Bill must examine the Bill to ascertain
whether it is to standard and complies with the prescribed formalities. If this is the in
the affirmative, it is certified to that effect and forwarded to the Secretary of the
National Assembly for Publication and tabling by the responsible Minister.
The Bill is presented to the National Assembly, which is a process entailing the first
reading, second reading, special committee intervention, and the third reading.
The first reading is the tabling of the Bill in the National Assembly by the Minister
proposing the Bill. For example, our former Minister of Finance had to table the
Financial Services Adjudicator Bill and The Namibia Institutions Supervisory
Authority Bill in Parliament because he proposed such statute. The Bill then
becomes a public document and available to any member of the public.
During the second reading the, the National Assembly ponders on the main ideas of
the Bill. Either the National Assembly will endorse the bill which will prompt further
assessment of the Bill by a special committee, or the National Assembly will holds
back its approval and as result the Bill cannot go forward and must be re-introduced
in thirty 30 days.
Once the Bill passed the second reading, it will undergo an intensive assessment by
a special committee. In essence, this is the phase where the Bill is examined in
detail, and amendments can be made only if it is consistent with the principles of the
Bill agreed upon the second reading.
The Third Reading of the Bill entails a vote. If majority of the House votes in favour of
the Bill, consensus is reached and the Bill moves forward. It is worth noting that no
further debate can be entertained after the third reading of the Bill.
Although the sponsoring minster will table the Bill and read it for the appreciation of
the members of the National Assembly, the process is however facilitated through
the Speaker of the House and therefore, makes the National Assembly responsible
for driving the process. In other words, the Legislative Branch is responsible.
The National Assembly forwards the Bill the National Council for review. During this
stage the National Council can approve the Bill as is, make suggestions for
amendments or object to the principle of the Bill. However, the National Assembly is
not compelled to adopt the amendments proposed by the National Council but the
National Assembly reconsider the Bill again and can only move forward is the two-
thirds of the members of the National Assembly agrees with the Bill.
Step 5 entails Presidential assent. The president must sign the Bill if it has already
been approved by two-thirds of the members of the National Assembly. This
postulates that all Bill must be signed by the President before it becomes law.
In the event that the President refuses to sign the Bill while it has been approved by
the majority of the House, the President cannot make any objections.
Legislative Power is vested in the National assembly to pass laws with the assent of
the President. Thus, both the Executive Branch and Legislative Branch is
responsible in this regard. In order for a law to passed it must assented by the
President under Article 44.
This step is referring the Bill to the Court in order to become law where the President
refused to sign. If the Court finds that the Bill is not in conflict with the Constitution, it
may go forward and thus becomes law. However, if the court decides otherwise the
Bill cannot go forward.
The Bill is then published in the official Government Gazette as an Act of Parliament
and commences on the date of its publication or a specific date. Similarly, Botha
alluded that the date of assent is understood as when an Act is legally enacted
legislation, however not yet operative in law. Generally, it only becomes operative in
law once it is promulgated in Government Gazette. In S v Nghitukwa the court
established that the commencement date refers to when a specific Act comes into
operation, and if no date is specified, the Act comes into operation of the date of
publication in Government Gazette. Policy governance in terms of commencement of
laws is articulated in the Interpretation Act and clearly sets the tone when laws
become operative, namely, upon publication in the Gazette, on a date specified in
the statute itself or on an unspecified date to be proclaimed
The president must sign the Bill in order to acquire the status of an Act of Parliament.
Moreover, where a Bill is passed by the majority of the House the president is
obliged to give his assent thereto. However, of the President still refuses to assent to
the Bill the Attorney- General may approach a competent court40 who will then
conclude whether or not the Bill may become law.
Once the statute is enacted and operative in law, the courts are empowered to
interpret the Law. If the court finds that the law is in conflict with the Constitution, the
court may declare it unconstitutional. In the labour hire case of Africa Personnel
Services (Pty) Ltd v Government of Republic of Namibia and Others the court
found that section 128 of the Labour Act 11 of 2007 is unconstitutional and as a
result invalidated the section in law and ordered parliament to make the necessary
amendments. Similarly, in the case of Hiskia and Another v Body Corporate of
Urban Space and Others the court found that Magistrates’ Court Act passed by
Parliament was unconstitutional. The specific unconstitutional provisions of the said
act was section 66 (1) (a)45 and was thus declared unconstitutional.
The Executive
1. Made up of the Cabinet and the President,

2. Article 35(1) states that the Cabinet is appointed by the President and these
may include members of the National Assembly for administering and
executing the functions of the Government.
Functions:
1. The executive is responsible for conducting Namibia’s international affairs,
including entry into international agreements.
2. The executive may also provide political leadership
3. As the head of the State the president may also according to Article 32(4)(a)
(aa) appoint Judges of the High and Supreme Court on the recommendation
of the JSC.
4. to initiate bills for submission to the National Assembly as per Article 40(b)
5. to formulate, explain and assess for the National Assembly the budget of
6. the State and its economic development plans and to report to the National
7. Assembly thereon;
8. (d) to carry out such other functions as are assigned to them by law or are
9. incidental to such assignment;
10.(e) to attend meetings of the National Assembly and to be available for the
11.purposes of any queries and debates pertaining to the legitimacy, wisdom,
12.effectiveness and direction of Government policies;
13.(f) to take such steps as are authorised by law to establish such economic
14.organisations, institutions and para-statal enterprises on behalf of the State
15.as are directed or authorised by law;
16.(g) to formulate, explain and analyse for the members of the National
Assembly
17.the goals of Namibian foreign policy and its relations with other States and
18.to report to the National Assembly thereon;
19.(h) to formulate, explain and analyse for the members of the National
Assembly
20.the directions and content of foreign trade policy and to report to the
21.National Assembly thereon;
22.(i) to assist the President in determining what international agreements are to
23.be concluded, acceded to or succeeded to and to report to the National
24.Assembly thereon;
25.(j) to advise the President on the state of national defence and the
26.maintenance of law and order and to inform the National Assembly thereon;
27.(k) to issue notices, instructions and directives to facilitate the implementation
28.and administration of laws administered by the Executive, subject to the
29.terms of this Constitution or any other law;
30.(I) to remain vigilant and vigorous for the purposes of ensuring that the
31.scourges of apartheid, tribalism and colonialism do not again manifest
32.themselves in any form in a free and independent Namibia and to protect
The President:
Functions: Article 32
(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
Table of Contents -22-
all acts necessary, expedient, reasonable 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 dur ing 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 Sub-Article (1) hereof, 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) hereof;
(b) determine the times for the holding of special sessions of the National
Assembly, and to prorogue such sessions;
(c) accredit, receive and recogniseambassadors,and to appointambassadors,
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) hereof;
(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 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 Sub-Articles (3),(4),(5),(6)
and
(7) hereof 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
Sub-Article (9) hereof, 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.
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
JUDICIAL BRANCH OF GOVERNMENT
Article 78 vests the Supreme Court, High Court and Lower Courts with judicial power
and in the exercise and execution of each court operating independently and subject
to the constitution as stipulated.
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 protecting their
independence, dignity and effectiveness, subject to the terms of this Constitution or
any other law.
Composition:
Article 79(1) of the Constitution provides that the Supreme Court should consist of a
Chief Justice and such additional judges as the President, acting on the
recommendation of the Judicial Service Commission, may determine, while Article
79(2) adds that the Supreme Court is to be presided over by the Chief Justice. It
should also be mentioned that no judge is permitted to preside over a case to whose
decision s/he was a party in a lower court. All appointments of judges to both the
Supreme Court and the High Court are to be made by the President on the
recommendation of the Judicial Service Commission. In the case of S v Zemburuka
the court ruled that the appointments of acting judges should be subjected to the
same procedure as their tenured counterparts. All judges so appointed are to hold
office until the age of 65, but the President is entitled to extend the retiring age of any
judge until 70. A judge can be removed from office prior to the expiry of his/her
tenure, but only by the President acting on the recommendation of the Judicial
Service Commission, and only on the grounds of mental incapacity or gross
misconduct.
Functions:
 The Supreme Court is primarily a court of appeal and its appellate jurisdiction
covers appeals emanating from the High Court
 Appeals which involve interpretation, implementation and upholding of the
constitution and the fundamental rights and freedoms guaranteed thereunder
(Art 79(2))
 Highest court of appeal in Namibia and its decisions are final (Section 17 (1)
of the Supreme Court Act, 15 of 1990)
 As a general rule, in determining civil appeals from a decision of the High
Court, an appeal should take the form of a re-hearing of the record, but not a
retrial. However, if it appears to the court that there was insufficient evidence
before the trial judge, a retrial will be ordered.
 Original jurisdiction over matters referred to it for decision by the Attorney-
General under the Constitution, and with such other matters as may be
authorised by Act of Parliament (Art 79(2))
 Supreme Court does have original jurisdiction over constitutional matters but
that this original jurisdiction is not exclusive to the Supreme Court because
the High Court is also vested with original jurisdiction over constitutional
matters
 Attorney-General shall be entitled to approach the Supreme Court directly
without, first instituting any proceedings in any other court, on application to it,
to hear and determine the matter in question (Supreme Court Act, 15 of 1990
Section 15)
 The Supreme Court also has review jurisdiction over the proceedings of the
High Court or any lower court, or any administrative tribunal or authority
established or instituted by or under any law (Section 16 (1) of the Supreme
Court Act, 15 of 1990.)
 The Supreme Court may exercise this jurisdiction mero motu (from the court’s
own accord) whenever it comes to the notice of the court or any judge of that
court that an irregularity has occurred in any proceedings, notwithstanding
that such proceedings are not subject to an appeal or other proceedings
before the Supreme Court. This review jurisdiction, however, does not confer
upon any person any right to institute any such review proceedings in the
Supreme Court as a court of first instance. (Section 16 (2) of the Supreme
Court Act, 15 of 1990.)
High court
Composition:
The High Court shall consist of the Judge-President and such additional judges as
the President, acting on the recommendation of the Judicial Service Commission,
may determine.29 The Constitution is silent on the qualifications for appointment as
High Court judges or acting judges, but section 3 of the High Court Act, 1990 (No. 16
of 1990) contains detailed provisions relating to such qualifications.
Section 8 of the High Court Act provides for the retirement of judges of the
High Court as follows:
(1) Any judge of the High Court holding office in a permanent capacity –
1. (a) shall retire from office on attaining the age of 65 years;
2. (B) may retire from office if he has attained the office of 65 years and has
completed at least eight years pensionable service as defined by any law relating to
pensions of judges;
3. (C) may at any time with the approval of the President retire from office if he or
she becomes afflicted with a permanent infirmity of mind or body disabling him or her
from the proper discharge of his or her duties of office or if any other reason exists
which the President deems sufficient.
The constitution of a court of High Court is provided for by section 10 of the Act, as
follows:
(1) (a) (b) Subject to the provisions of this Act or any other law, the High Court shall,
when sitting as a court of first instance for the hearing of any civil matter, be
constituted before a single judge: Provided that the Judge President or, in his or her
absence, the senior available judge may, at any time[,] direct that any matter be
heard by a full court.
A single judge may at any time discontinue the hearing of any matter being heard
before him or her and refer it for hearing to the full court.
(2) Any appeal from a lower court may be heard by one or more judges of the High
Court, as the Judge-President may direct.
As a rule, the judgment of the majority of the judges of the full court constitutes the
judgment of the court, but where the judgments of a majority of the judges of any
such court are not in agreement, the hearing is adjourned and commenced de novo
before a new court constituted in such manner as the Judge-President or, in his or
her absence, the senior available judge may determine.
Functions
 The Constitution vests the High Court with both original and appellate
jurisdiction (Art 80(2))
 The jurisdiction of the High Court is provided for by section 16 of the High
Court Act as follows:
 The High Court shall have jurisdiction over all persons residing or being in and
in relation to alaAl causes arising and all offences triable within Namibia and
all other matters of which it may according to law take cognizance, and shall,
in addition to any powers of jurisdiction which may be vested in it by law, have
power
 To hear and determine appeals from all lower courts in Namibia
 To review the proceedings of all such courts
 In its discretion, and at the instance of any interested person, to enquire into
and determine any existing, future or contingent right or obligation,
notwithstanding that such person cannot claim any relief consequential upon
the determination.
 Sections 32 and 37 of the Legal Practitioners Act No. 15 of 1995, the Court
has the power to discipline legal practitioners who have been found guilty of
unprofessional or dishonourable or unworthy conduct.
 Power to hear and adjudicate upon all civil disputes and criminal
prosecutions, including cases which involve the interpretation, implementation
and upholding of the Constitution and the fundamental rights and freedoms
guaranteed under the Constitution (Art 80(2))
 Power to overrule legislation where legislation is inconsistent with or ultra
vires, either the Constitution or enabling legislation (Art 25(1))
 Do anything that the law does not forbid, in contradistinction to the lower
courts, such as magistrates courts, which are creatures of statute in that they
cannot claim any authority which cannot be found within the four corners of
the Magistrates’ Courts Act
 Appellate jurisdiction to hear and adjudicate upon appeals from lower courts
(Art 80(2))
 The powers of High Court on hearing of appeals are provided by section 19
(The High Court Act) as follows:
The High Court shall have the power
 On hearing of an appeal to receive further evidence, either orally or by

deposition before a person appointed by the court, or to remit the case to the
court of first instance or the court whose judgment is the subject of the appeal,
for further hearing, with such instructions relating to the taking of further
evidence or any other matter as the High Court may deem necessary;
 To confirm, amend or set aside the judgment or order which is the subject of
the appeal and to give any judgment or make any order which the
circumstances may require.
The grounds of review of the proceedings of lower courts are stated under
Section 20 of the High Court Act as follows:
 Absence of jurisdiction on the part of the court;

 Interest in the cause, bias, malice or corruption on the part of the presiding
judicial officer;
 Gross irregularity in the proceedings
 The admission of inadmissible or incompetent evidence or the rejection of
admissible or competent evidence.
After review of the proceedings, the court has the power to confirm, alter or set aside
the conviction and/sentence.
Appointment of judges: Article 82
• S v zemberuka
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 hereof.
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.
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.
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): provided that non-Namibian citizens are appointed
as Judges under a fixed term contract of employment.
Removal of judges from office: Article 84
S v Zemberuka
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.
Judges may only be removed from office on the ground of mental incapacity or for
gross misconduct, and in accordance with the provisions of Sub-Article (3) hereof.
If the Judicial Service Commission considers that the question of removing a Judge
of the Supreme Court or the High Court under this Article ought to be investigated, it
shall establish a tribunal which -
shall consist of a Chairperson and not less than two other members, who hold or
have held judicial office;
shall enquire into the matter and report on the facts thereof to the Judicial Service
Commission; and
if the Judicial Service Commission, after due deliberation, advises the President to
remove the Judge for any reason referred to in Sub-Article (2), the President must
remove such Judge from office.
If the deliberations of the Judicial Service Commission pursuant to this Article involve
the conduct of a member of the Judicial Service Commission, such Judge shall not
participate in the deliberations and the President shall appoint another Judge to fill
such vacancy.
The Judicial Service Commission may, before establishing a tribunal in terms of Sub-
Article (3), recommend to the President to suspend the Judge under investigation
from office pending the outcome of the enquiry by the tribunal: Provided that the
President may on the recommendation of the Judicial Service Commission, revoke
any suspension.
THE JUDICIAL SERVICE COMMISSION: ARTICLE 85
There shall be a Judicial Service Commission consisting of the Chief Justice, the
Deputy-Chief Justice, 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 or organisations representing the interests of the legal
profession in Namibia.
The Judicial Service Commission shall perform such functions as are prescribed for
it by this Constitution or any other law.
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.
Any casual vacancy in the Judicial Service Commission may be filled by the Chief
Justice or in his or her absence by the Deputy-Chief Justice. A quorum at a meeting
of the Judicial Service Commission shall be three members.
CONSTITUTION ENTITIES
Attorney General
Article 86 of the Namibian Constitution, the Supreme law is the legal basis of this
stakeholder, the Attorney General. It provides for the appointment of the Attorney
General by the president. Even though this is a high position in government, the
Constitution is silent on the qualifying qualities that render a person eligible for
appointment as an Attorney General. Nevertheless, in the statement by His
Excellency the president Dr. Hage Geingob on the occasion of the announcement of
a new government structure, it is indicated that the Attorney General must be a
professional person who is not a Member of Parliament and is invited to Cabinet.
The Constitution under Article 87 outlines the powers and functions of the Attorney-
General. The Attorney General exercises the final responsibility for the office of the
Prosecutor-General. In this regard, the question ‘whether or not the Attorney General
should require that the Prosecutor-General keeps it informed in respect of all
prosecutions initiated or to be initiated which might arouse public interest or involve
important aspects of legal or prosecutorial authority’ was answered in the affirmative
in the judgment of Ex Parte: Attorney-General In Re: Constitutional Relationship
Between Attorney-General and the Prosecutor-General. In the same judgement,
Leon, A.J.A. argued that the final responsibility includes financial responsibility and
the duty to account to the President, the executive and the legislature.
The Attorney General serves, as per the mandate of the Constitution, as the principal
legal adviser to the President and Government. In fulfillment of this constitutional
obligation, the Attorney General is assisted by the Directorate Legal Advice, the
Directorate Civil Litigation and Office of the Prosecutor-General.
The Attorney General takes all action necessary for the protection and upholding of
the Constitution. In execution of this specific duty, the Attorney General in its history
has launched applications to the Supreme Court of Namibia in terms of Article 79(2),
particularly and of course possibly not limited to: Ex parte Attorney-General: In re
Corporal Punishment by Organs of State 1991 NR 178 (SC) and Attorney-General v
the Minister of Justice and others (P.12/2009) [2013] NASC 3 (4 April 2013).
The Constitution mandates the Attorney General to perform all such functions and
duties as may be assigned by Act of Parliament. To this effect, for instance, the
Parliament promulgated an Act, The State Finance Act, 1991 that requires the
Attorney-General to scrutinise and certify any agreement or contract that may have
legal and financial implications for government before they are entered into by
government offices, ministries and agencies.
Prosecutor General
This stakeholder derives its legitimacy and source from the provisions of Article 88 of
the Namibian Constitution which establish the appointment of the Prosecutor
General by the president on the recommendation of the Judicial Service
Commission. In the Supreme Court case Ex Parte: Attorney-General In Re:
Constitutional Relationship Between Attorney-General and the Prosecutor-General, it
was endorsed that the Constitution creates Prosecutor General which is independent
like any other constitutional institution with only the Attorney General obligated to
exercise final responsibility over the office of the Prosecutor General.
The Constitution under Article 88(1) restricts the appointment of persons as

Prosecutor General to persons who possess legal qualifications that would entitle
him or her to practise in all the Courts of Namibia and 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.
The Constitution further provides for the powers and functions of the Prosecutor
General which are complemented by the Criminal Procedure Act, 1977. The role of
the Prosecutor General is, in essence, to institute and to conduct a prosecution in
respect of any offence in relation to which any lower or superior court in the Republic
exercises jurisdiction. The functions prescribed by the Constitution include the
obligation to prosecute and defend appeals in criminal proceedings in the Superior
Courts and delegate to other officials the authority to conduct criminal proceedings in
any Court.
The Constitution is silent as well on the term of office of the Prosecutor General but,
in terms of Article 88A, vests the president with non-delegatory power to, on the
recommendation of the Judicial Service Commission, effect a removal of the
Prosecutor General from office before the expiry of his or her term of office on the
ground of incapacity or for gross misconduct.
Ombudsman
The Ombudsman is a constitutional establishment in terms of Article 89(1) that

stipulates that there should be an Ombudsman, who has the powers and functions
set out in the Constitution. The Constitution is very express on the independence of
the Ombudsman whereby Article 89(2) explicitly states that the Ombudsman is
independent and subject only to the Constitution and the law. On the similar note, in
terms of Article 89(3), it restricts members of the Cabinet or the Legislature or any
other person from interfering with the Ombudsman in the exercise of his or her
functions and directs all organs of the State to accord such assistance as may be
needed for the protection of the independence, dignity and effectiveness of the
Ombudsman.
Article 90 of the Namibian Constitution provides that the Ombudsman is appointed

by Proclamation by the President on the recommendation of the Judicial Service
Commission and holds office until the age of sixty-five (65) but the President may
extend the retiring age of any Ombudsman to seventy (70). On the qualifying
qualities that render a person eligible for appointment as Ombudsman, the
Constitution states that the Ombudsman shall either be a Judge of Namibia, or a
person possessing the legal qualifications which would entitle him or her to practise
in all the Courts of Namibia.
The term of office of the Ombudsman has been clearly identified but he or she may
be removed from office before the expiry of their term of office by the President
acting on the recommendation of the Judicial Service Commission on the ground of
mental incapacity or for gross misconduct.
The Constitution and the Ombudsman Act 7 of 1990 prescribe the powers and
functions of the Ombudsman. Summarily, the Ombudsman is entitled to promote and
protect human rights, fair and effective administration, combat misappropriation or
misuse of public resources and protect the environment and natural resources of
Namibia through the independent and impartial investigation and resolution of
complaints and through raising public awareness.
Judicial Service Commission
The Judicial Service Commission is a constitutional institution within the legal

frameworks of Article 85(1) whose duties and powers are prescribed by the
Constitution and Act of Parliament. The provisions of the similar Article provide that
the Judicial Service Commission is consisted of 5 members, namely: Chief Justice,
Deputy-Chief Justice, 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 representing the interests of the legal profession in
Namibia.
As stated before, the Judicial Service Commission is a constitutional establishment.

However, the Constitution does not specify the term of office for the members of this
commission. Since, as it is stated before, the powers of this commission are
complemented by an Act of Parliament, Section 3(1) of the Judicial Service
Commission Act, 1995 stipulates that, in exception of the Chief Justice and the
Attorney-General who are ex officio members of the commission, each of the other
members hold office for a period of three years from the date of appointment and
upon the expiry of their term of office, be eligible for reappointment.
The functions of this commission, as in terms of section 4, are simply to make
recommendations to the president for the appointment of judicial officers and their
removal from office and to institute disciplinary inquiries into the conduct of persons
holding or acting in judicial offices. The section further provides that the commission
receives and investigates complaints from the members of the public concerning the
conduct of such persons or the administration of justice at superior court level.
The stakeholders identified above are established to respond to the constitutional

calling and of course they are not the only stakeholders involved as far as the legal
profession is concerned. Throughout, it is shown that independence between these
stakeholders is strongly encouraged but on the other hand it is illustrated that
stakeholders interact and engage with one another and the legal community at large
in the execution of their powers and functions. This idea of interaction is an
established mechanism to place legal restraint on each of the functionary to avoid
the usurping of one another’s powers.
In the execution of its function as a legal principal of government and president, the
Attorney General is assisted by the office of the Prosecutor General while the
Attorney General exercises final responsibility for the office of the Prosecutor
General. Such strong interaction does not only manifest between the two institutions
previously referred to, it is further observed between the Ombudsman, Prosecutor
General and the Judicial Service Commission where the Ombudsman and the
Prosecutor General are appointed and removed from office on recommendation of
the Judicial Service Commission. It is also observed that the Attorney General is a
member of the Judicial Service Commission.
In conclusion, it is worth emphasising that the legal profession is diversified

fundamentally in an attempt to avoid pure concentration of power that would work to
the detriment of the interests the profession at large ought to protect.
Electoral Commission of Namibia Article 94B
(1) There shall be an Electoral Commission of Namibia which shall be the exclusive
body to direct, supervise, manage and control the conduct of elections and
referenda, subject to this Constitution, and an Act of Parliament shall further

define its powers, functions and duties.
(2) The Electoral Commission of Namibia shall be an independent, transparent and
impartial body.
(3) The Electoral Commission of Namibia shall consist of five Commissioners,
including the Chairperson, appointed by the President with the approval of the
National Assembly, and such Commissioners shall be entitled to serve for a five
(5) year term: Provided that no Commissioner shall serve more than two (2)
terms.
(4) Subject to Sub-Article (3), the Chairperson shall serve in a full-time capacity for a
term of five (5) years and shall be eligible for reappointment.
(5) The depository of the records, minutes, documents of the Electoral Commission
of Namibia, as well as the electoral and referenda materials shall be the Chief
Electoral and Referenda Officer.
(6) The qualifications for appointment, conditions and termination of service for the
Chairperson, Commissioners and the Chief Electoral and Referenda Officer shall
be determined in accordance with an Act of Parliament.
a) Tjirare v The Chairperson of the Electoral Commission of Namibia(EC

2/2020) 13 July 2020
1. Members of PDM had approached the High Court declaring swearing in of the
some of the members as unconstitutional. The applicants were nominated by
PDM and afterward gazetted. PDM opposed the application and raised 2
points
-That the court had no jurisdiction to hear
-That PDM had discretion to nominate its own members
- The constitutional question is whether the ECN has the power to amend lists
gazetted in terms of section 78 of the Act. The court held that ECN is a
creature of the Act and does not have distinct authority, the court held that if a
statutory body performed an act ultra vires (outside its power) and it had no
jurisdiction to change the lists.
Public Service Commission
Article 112 Composition:
(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 hereof 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.
Functions
Article 113
(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 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, if requested by the President to do so, 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.
Topic 10: State of Emergency
Constitutional Provision:
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. (where the President got the authority to declare a State
of Emergency).
(2). A declaration under Sub-Article (1) hereof, 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 Sub-Article (4) hereof, a declaration approved by a

resolution of the National Assembly under Sub-Article (2) hereof 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 Sub-Article shall
enable the President to act contrary to the provisions of Article 24 hereof.
(c) Where any regulation made under Sub-Article (b) hereof 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 Republic of Namibia 23
Annotated Statutes Namibian Constitution 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) hereof.
(6). Any regulations made by the President pursuant to the provisions of Sub-Article
(5) hereof 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-thirds majority of all the members of the National Assembly.
Relevant cases for State of Emergency
NEF Ors v President of the Republic of Namibia & Ors (HC-MD-CIV-MOT-GEN-

2020/00136) [2020] NAHCMD 198 (23 July 2020)
Background: (For interest sake)

On 14 March 2020, Namibia reported her first two cases of COVID-19. This was a
Romanian couple, who arrived in Windhoek. The couple was screened for the disease
but showed no symptoms at that time. On 19 March 2020, a third case was confirmed
and so the number of cases grew. When the first cases were confirmed, the
Government of Namibia suspended air travel to and from Qatar, Ethiopia and
Germany for a period of 30 days; all public and private schools were closed for a
month, and large gatherings, amongst became prohibited. As a consequence,
President Hage Geingob declared a State of Emergency, under Article 26(1) of the
Namibian Constitution, read together with s 30(3) of the Disaster Risk Management
Act, 2012 in the whole of Namibia, because of the Coronavirus disease, which
resulted in the restrict restriction of fundamental rights, such as the right to freely
move and assemble, guaranteed under the Constitution.
During this period, the Government enacted a number of regulations designed to

slow the spread of the virus and to “flatten the curve”. On 28 April 2020, the
President issued Proclamation 16 and 19, and these proclamations suspended are
certain provisions of the Labour Act, 2007 (the ‘Labour Act’). Namely that it made an
offence for an employer to terminate employment, force leave, reduce remuneration
or refuse to reinstate an employee under specific circumstances.
Facts:
The applicants (which are employers) are of the view that the Proclamations that the
President promulgated in terms of Article 26 of the Constitution, read with section
30(3) of the Disaster Risk Management Act , 2012. must be aimed or directed at
arresting the spread of the COVID-19 pandemic, which they did not. They stated the
Constitution only authorises or empowers the President to suspend a rule of the
common law, a statute or the fundamental rights or freedoms protected by the
Constitution for a specific time period and on conditions which are for the purpose of
dealing with the situation which has given rise to the emergency and that the
Proclamations were only aimed at protecting employees and are thus a violation of
Articles, 10, 22 and 26(5) of the Constitution and that the President ultra vires by
promulgating them.
The respondents however argue that ‘lockdown’ was necessary to prevent the spread of
the COVID-19 disease and in order to achieve lockdown, it was necessary, to strictly
control and reduce movement. For movement to be effectively controlled and restricted,
it was necessary for employees to stay at home. For the employees to stay at home,
they needed some support and, at least, the peace of mind of income (and food on the
table) until the end of lockdown. The respondents further stated that the
President only interfered to the extent that employers interfered or intended to
interfere with employee benefits as a result of the COVID-19 impact and that
widespread dismissals could lead to starvation or public disorder. They also argued
that the President was well within the powers conferred on him by Article 26(5) of the
Constitution to promulgate the different regulations and by so doing did not act ultra
vires or beyond the powers conferred on him by Article 26 of the Constitution.
Legal question:
Did the President act ultra vires or exceeded the powers conferred on him by Article
26(5)(b) of the Namibian Constitution when he promulgated regulation 19 of the
‘Suspension Regulations’ and regulation 12 of the ‘Further Suspension Regulations’?
Judgement:
The court applied the ultra vires doctrine by stating that, in simple terms, it meant
that a functionary has acted outside his or her powers and as a result the function
performed becomes invalid. The rule forms part of the principle of legality, which is
an integral component of the rule of law. It further stated that Article 26(5)(b) mandates
the President to make regulations that 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 state of emergency (most relevant part of the
provision). It is important to note that the provision has a limitation, in that the President is
not allowed to act contrary to the provisions of Article 24 of the Constitution. It thus
follows that if the President makes regulations that do not deal with the situation
which has given rise to the State of Emergency or which are contrary to Article 24,
the President would have acted ultra vires Constitution. So the court went further to
ask itself if regulation 19 of the ‘Suspension Regulations’ and regulation 12 of the
‘Further Suspension’ deal with the outbreak of the Coronavirus? It came to the
conclusion that the regulations are therefore not “reasonably justifiable for the
purpose of dealing with the situation which has given rise to the emergency” and to
that extent the President breached the principle of legality and acted ultra vires.
Therefore, regulation 19 of the Suspension Regulations and regulation 12 of the
Further Suspension Regulations are unconstitutional.
Relief sought:
As a result of their grievance the applicants, on an urgent basis, approached this
Court seeking the following:
(a) an order condoning their non-compliance with the Rules of Court;

(b) that the matter be heard as one of urgency;
(c) declaring the regulations that are mentioned in the preceding paragraph as
unconstitutional and invalid; and
(d) costs of the application for the engagement of such instructing and instructed
counsel as employed.
Freedom Front Plus v President of the Republic of South Africa and Others
(22939/2020) [2020] ZAGPPHC 266; (6 July 2020)
Facts:
South Africa recorded its first case of Covid-19 on 5 March 2020. On 15 March,acting
under s3, read with s27 of the DMA, the second respondent declared a national state of
disaster. The first respondent addressed the nation, announcing that extraordinary
measures would be needed to curb the spread of infections. The first set of regulations
under the DMA was published on 18 March. This time, he announced a strict national
lockdown with effect from midnight on 26 March and a number of lockdown measures.
In this particular application, the applicant challenges, among other things, the
constitutional validity of the DMA itself. The essence of the attack on the DMA is that
it is unconstitutional in that it permits a state of disaster to be imposed by the
executive without the same safeguards that apply in a state of emergency, which is
governed by s37 of the Constitution.
Legal Question:
Are s23(8) and/or s26(2) and/or s27 of the DMA is inconsistent with the Constitution
and invalid insofar as these sections do not make provision for various safeguards
that are to be found in s37 of the Constitution?
Judgement:
The court stated that unlike states of disaster, the Constitution itself deals with states
of emergency in s37(1) of the Constitution and that a declaration of a state of
emergency has to comply with the judicial requirements namely: that “ state of
emergency may be declared only in terms of an Act of Parliament and only when-
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder,
natural disaster or other public emergency; and (b) the declaration is necessary to
restore peace and order.” It then went on to make a distinction between a state of
emergency and a state of disaster. By stating that a state of emergency is limited to
the direst of circumstances. It may only be declared when the “life of the nation” is
under threat. Additionally, it must be necessary to restore “peace and order”. Unless
these requirements are met, the declaration of a state of emergency would be
unlawful. However, a state of disaster, on the other hand, covers a wide range of
different circumstances. While a disaster may take many forms, and may threaten
lives and the well-being of communities, it does not involve a threat to the life of the
nation, nor does it disrupt peace and order. In other words, in the direst
circumstances, where the life of the nation, and the constitutional order itself may be
under threat, it may be necessary in the short term to suspend the normal
constitutional protections in order, ultimately, to restore the constitutional state. It is
for this reason that some modern constitutions permit the suspension or derogation
from fundamental rights during states of emergency (e.g.Namibia). This is why the
jurisdictional requirements under s37(1) are so strict. It is also why the safeguards in
s37 are built in. The very purpose of a state of emergency is to permit a suspension
of the normal constitutional order. Once the fundamental distinction between a state
of emergency and a state of disaster is understood, this complaint loses its force. For
all of these reasons we agree with the submission made by the respondents that the
applicant’s attack on the DMA is founded on a misconception and is fundamentally
flawed. Both the main relief sought must be refused.
Relief sought:
In prayer 2.1, the applicant seeks an order declaring that s23(8) and/or s26(2) and/or
s27 of the DMA is inconsistent with the Constitution and invalid insofar as these
sections do not make provision for various safeguards that are to be found in s37 of
the Constitution, which deals with states of emergency.
De Beer and Others v Minister of Cooperative Governance and
Traditional Affairs (21542/2020) [2020] ZAGPPHC 184 (2 June 2020)
Facts:
In this case, the applicants dispute the mere say-so that there exists no legislation by
which the national executive could deal with the disaster is misplace and “irrational” on
the part of the Ministser. Their contention is made with reference to the International
Health Regulations Act, 28 of 1974. In terms of this Act the President may, by mere
proclamation invoke the International Health Regulations for dealing with the disaster.
Legal Question:
Was it irrational for declare a national disaster in South Africa, instead of just
applying the International Health Regulations Act 28 of 1974?
Judgement:
The court stated that the regulations appear, however not to have been updated and
neither do they specifically provide for COVID-19 presumably due to the novelty
thereof. It is therefore difficult to assess whether this Act can "adequately provide for
the national executive to deal effectively with the disaster'. It is clear from a reading
of the enabling provisions, that disasters other than the one currently facing us as a
result of the COVID-19 pandemic, were contemplated by the DMA. The rationality
test is concerned with the evaluation of the relationship between means and ends "...
it is not to determine whether some means will achieve the purpose better than
others but only whether the means employed are rationally related to the purpose for
which the power was conferred. Where a decision is challenged on the grounds of
rationality or, as in this case, the regulations are attacked on the basis of irrationality,
"... courts are obliged to examine the means selected to determine whether there are
rationally related to the objective sought to be achieved. It must also follow that, if a
measure is not rationally connected to a permissible objective, then that lack of
rationality would result in such a measure not constituting a permissible limitation of
a Constitutional right in the context of Section 36 of the Constitution. The Minister's
declaration of a national state of disaster in terms of Section 27(1) of the Disaster
Management Act in response to the COVID-19 pandemic is found to be rational.
Relief sought:
The applicants claim the following relief (amongst other things): 3.1.1 That the
national state of disaster be declared unconstitutional unlawful and invalid is refused.
Literature
In Fritz N in Woolman et al, Constitutional Law of South Africa, OS 03-07, ch61

at pg5
Requirements for State of Emergency in South Africa:
Section 37 of the Constitution-
37. - (1) A state of emergency may be declared only in terms of an Act of Parliament,
and only when— (a) the life of the nation is threatened by war, invasion, general
insurrection, disorder, natural disaster or other public emergency; and (b) the
declaration is necessary to restore peace and order.
- (2) A declaration of a state of emergency, and any legislation enacted or other
action taken in consequence of that declaration, may be effective only—
(a) prospectively; and
(b) for no more that 21 days from the date of the declaration, unless the National
Assembly resolves to extend the declaration. The Assembly may extend a
declaration for no more than three months at a time. The first extension of the
state of emergency must be by a resolution adopted with a supporting vote of a
majority of the members of the Assembly. Any subsequent extension must be by
a resolution adopted with a supporting vote of at least 60 per cent of the
members of the Assembly. A resolution in terms of this
paragraph may be adopted only following a public debate in the Assembly.
Court role in emergency-
37. - (3)Any competent court may decide the validity of—
(a) a declaration of a state of emergency;
(b) an extension of a declaration of a state of emergency; or
(c) any legislation enacted, or other action taken, in consequence of a
declaration of a state of emergency.
37. -(4) Any legislation enacted in consequence of a declaration of a state of

emergency may derogate from the Bill of Rights only to the extent that—
(a) the derogation is strictly required by the emergency; and
(b) the legislation—
(i) is consistent with the Republic’s obligations under international law
applicable to states of emergency;
(ii) conforms to subsection (5); and
(iii) is published in the national Government Gazette as soon as
reasonably possible after being enacted.
Prohibitions
37. -(5) No Act of Parliament that authorises a declaration of a state of emergency,
and no legislation enacted or other action taken in consequence of a declaration,
may permit or authorise—
(a) indemnifying the state, or any person, in respect of any unlawful act;
(b) any derogation from this section; or
(c) any derogation from a section mentioned in column 1 of the Table of Non-
Derogable Rights, to the extent indicated opposite that section in column 3 of
the Table.
Non-Derogable Rights (if you want to see the actual table, you will find it on
p.61-2 of the book which is available on Moodle.)
1. Equality
2.Dignity
3.Life
4.Freedom AND Security of the person
5.Slavery, servitude and forced labour
6.Children
7.Arrested, detained and accused persons
Also, the rest of section 37 is also available in the book, I only mentioned these
sections because I found them to be the most important.
Challenges brought about by new types of threat

Certainly, South Africa is not immune from these threats and, like governments
elsewhere, may want to have resort to more flexible models, where governing
instruments can be tailored to the actual exigencies of the situation — concerns
which may increasingly incline governments to lean towards the use of legislative
models. These types of laws might delegate a great deal of authority to the executive
and may only be enacted for temporary periods.
legislative emergency models are much more likely to bring about permanent
changes to the normal legal order: ‘the special danger of the legislative model is that
the authority by which the president takes action is an ordinary statute, and statutes
have, intrinsically, the potential to change the legal system in some permanent way.’
Role envisaged for the courts

An essential feature of the state of emergency provisions are the powers carved out
for the courts in supervising any emergency measures taken. Not only are the courts
specifically empowered to decide the validity of any declaration of a state of
emergency, any extension of such a declaration or any legislation enacted or action
taken in consequence of a declaration, but the Final Constitution explicitly prohibits
any legislation or action that would place unlawful conduct on the part of the state or
any person beyond the purview of the courts.
in respect of any detentions carried out in consequence of a declaration of a state of

emergency, courts are to review these detentions as soon as reasonably possible
but in any event no later than ten days after the date of detention. A court must
release the detainee unless further detention is necessary to restore peace and
order. Detainees not released are thereafter permitted to apply for further review of
their detention once a period of ten days has expired since their previous review, and
are entitled to release unless further detention is necessary, again, under the same
standard. On further review, the state is to provide written reasons to the court to
justify the continued detention of the detainee and must provide a copy of those
reasons to the detainee at least two days prior to the review. Finally, in respect of
detainees, once the court releases a person, that person is not to be detained again
on the same grounds unless the state establishes before a court that there exists
good cause for redetaining that person. These provisions mark an obvious departure
from the emergency provisions under the apartheid legal order and, in this sense,
are some of the clearest indicators that the Final Constitution is, a ‘transitional
constitution’: being ‘both backward- and forward-looking, as it disclaims past illiberal,
and reclaims future liberal, norms.
These provisions reflect are a clear rejection of parliamentary supremacy, the

doctrine under which South Africa’s notorious emergency provisions were enacted.
They are also an unambiguous refutation of the tenor of the previous emergency
provisions, which sought time and again to oust judicial review, making protection by
the courts, ‘for all practical purposes, non-existent’. Also, in supervising emergency
powers the courts will act to safeguard individual rights.
International law and South Africa’s emergency powers

First, FC s 37(4)(b)(i) requires that legislation enacted pursuant to a declaration of a
state of emergency may derogate from the Bill of Rights only to the extent that the
legislation is ‘consistent with the Republic’s obligations under international law
applicable to states of emergency’. Second, FC s 37(8) provides that non-South
Africans detained in South Africa in consequence of an international armed conflict
may avail themselves of ‘the standards binding on the Republic under international
humanitarian law in respect of the detention of such persons’.
International law has also influenced the drafting of other provisions contained in FC
s 37 — the formulation that a state of emergency may be declared only when ‘the life
of the nation is threatened’ is drawn directly from the provisions dealing with states of
emergency and derogation of rights in the authoritative international instruments.
Similarly, the identification in FC s 37 of those rights that are non-derogable directly
corresponds to such identification under international law. The stipulation that the
right to equality is non-derogable ‘with respect to unfair discrimination solely on the
grounds of race, colour, ethnic or social origin, sex, religion or language’ is lifted from
Article 4(1) of the International Covenant on Civil and Political Rights (the ICCPR).
International law provisions relating to state obligations during times of emergency

are primarily concerned with two themes: the circumstances that must obtain before
a derogation of rights can be justified; and the rights that may be derogated from as
opposed to those that must be preserved no matter the exigency which the state
faces. These two concerns are reflected, for example, in art 4 of the ICCPR: ‘On the
one hand, it allows for a State Party unilaterally to derogate temporarily from a part
of its obligations under the Covenant. On the other hand, Article 4 subjects both this
very measure of derogation, as well as its material consequences, to a specific
regime of safeguards.’ However, the African Charter on Human and Peoples’
Rights5 makes no such provision for derogation: the drafters believed that the
exclusion of a derogation provision from the Charter would discourage governments
from resorting too easily to extraordinary measures that would violate human rights.
1.Regulating declarations of a state of emergency

A state of emergency may be declared ‘only in terms of an Act of Parliament’. The
authorizing legislation is the State of Emergency Act.2 The SoE Act provides that
any declaration of a state of emergency must be by proclamation in the Government
Gazette. The President may declare a state of emergency within the Republic or in
any area within the Republic and must briefly state the reasons for the declaration.
s 37 sets out a number of safeguards protecting against the possible abuse of state
of emergency powers. Some of these protections are time-related: thus a state of
emergency, and any ensuing legislation or action, is effective only prospectively.4
Any declaration and ensuing legislation or action is valid only for 21 days from the
date of the declaration unless the National Assembly resolves to extend the
declaration, and it may do so for no more than three months at a time.
1.1 National Assembly

The role afforded the National Assembly in extending a state of emergency identifies
additional institutional safeguards, and the prominent powers given other branches
of government in supervising the state of emergency. No limit is set on the number of
times the National Assembly may extend the declaration. However, while the first
extension needs only the support of a majority of the members of the Assembly, any
subsequent extension must be supported by at least 60 per cent of the members of
the Assembly. Any resolution, to extend or to refuse to extend a state of emergency,
can only be made following a public debate in the Assembly.
1.2.The courts
The supervisory functions of the courts during this time are explicitly reinforced. They
may decide on the validity of the initial declaration, on any extension, and on any
ensuing legislation or action. courts may determine whether there did exist a threat
to the life of the nation and whether a declaration was necessary to restore peace
and order.
Action taken during an emergency

The key characteristic of the emergency regime is that it allows for derogation from
fundamental rights in a way that the normal constitutional order would not permit.
However, any legislation authorizing derogation from the Bill of Rights must be strictly
required by the emergency, must be consistent with South Africa’s international law
obligations applicable to states of emergency, and is to be published in the Government
Gazette as soon as reasonably possible after enactment.
Non-derogable rights
s 37 contains a list of non-derogable rights and provides the extent to which these rights
are non-derogable. Only the rights of human dignity and life are nonderogable in their
entirety. As concerns the right to equality, which is non-derogable ‘with respect to unfair
discrimination, solely on the grounds of race, colour, ethnic or social origin, sex, religion
or language’, there are omissions which must register as peculiar. Why, for instance, is
unfair discrimination on the basis of race or religion strictly prohibited during a state of
emergency and yet unfair discrimination on the basis of gender or sexual orientation is
not? This is no real answer.
Rights of detainees
ss 37(6)(a) to (h) and 37(7) and (8) regulate detention without trial under a state of
emergency. The detail of these regulations, and the protection they afford, is a reflection not
only of the fact that detention without trial is generally the hallmark of emergency regimes
throughout the world, but that detention without trial was among the most egregious
features of apartheid emergency powers. The detention of political opponents of the
apartheid state often served to facilitate further violations — torture, cruel, unusual and
degrading treatment and, in some cases, disappearance.
To prevent the type of abuse perpetrated under South Africa’s notorious 90 Day
Detention Law of 1963, whereby on expiry of such period, detainees were released and
simply re-detained, FC s 37(7) provides that, ‘if a court releases a detainee, that person
may not be detained again on the same grounds unless the state first shows a court
good cause for re-detaining that person.’ Finally, FC s 37(8) regulates the treatment of
non-South African detainees, detained ‘in consequence of on international armed
conflict’, and guarantees to such persons rights correlative to South Africa’s obligations
under international humanitarian law.
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Constitutional Law Examination Guide

1. Discuss the meaning of concept constitutionalism

Relationship between constitutionalism and the constitution.

In-depth look at the essential features of Constitutionalism

Under this fundamental component of constitutionalism the public is the wellspring of

Separation of Powers (Checks and Balances)

Under constitutionalism, power is not concentrated in one organ of the state it is

Rule of law represents supremacy of law as it indicates a government of laws and

Principle of legality (nullum crimen sine lege)

Theory of substantive justice

The Namibian Constitution in article 12 1(a) contains indications that Namibia

Theory of strict legality

Historical Development of the Namibian Constitution

Checks and Balances

Checks and balances against the Executive:

5. Art 32(2) - In accordance with the responsibility of the executive branch of

6. Art 25 – empowers judiciary to declare invalid any executive action which

8. Art 39 - The President shall be obliged to terminate the appointment of any

9. Art 41 - All Ministers shall be accountable individually for the administration of

Checks and balances against the Legislature:

1. Art 1(6) - This Constitution shall be the Supreme Law of Namibia.

2. Art 25 – empowers judiciary to review legislation and declare it unconstitional.

3. Art 64 – Empowers President to veto legislation

4. Art 32(3)(a) RW 57(1) – Empowers President to dissolve parliament

Checks and balances against the Judiciary:

Legislative branch of government

The legislature as outlined in Chapters 7 and 8 of the Constitution is made up of the

Article 44 confers legislative power to the National Assembly as it is envisaged that it

Composition of the National Assembly

Functions and Powers

Article 68 provides for the establishment of the National Council

Functions and Power

 Consider in terms of Article 75 hereof all bills passed by the National

LAW MAKING PROCESS

Step 1 in the statutory law making process

Step 2 in the statutory law making process

Step 3 in the statutory law making process

Step 4 in the statutory law making process

Step 5 in the statutory law making process

Step 6 in the statutory law making process

Step 7 in the statutory law making process

Step 8 in the statutory law making process

1. Made up of the Cabinet and the President,

Functions of the Prime Minister

JUDICIAL BRANCH OF GOVERNMENT

1. (a) shall retire from office on attaining the age of 65 years;

Court, as the Judge-President may direct.

The High Court shall have the power

 On hearing of an appeal to receive further evidence, either orally or by

 Absence of jurisdiction on the part of the court;

Appointment of judges: Article 82

THE JUDICIAL SERVICE COMMISSION: ARTICLE 85

The Constitution under Article 88(1) restricts the appointment of persons as

The Ombudsman is a constitutional establishment in terms of Article 89(1) that

Article 90 of the Namibian Constitution provides that the Ombudsman is appointed

Judicial Service Commission

The Judicial Service Commission is a constitutional institution within the legal

As stated before, the Judicial Service Commission is a constitutional establishment.

The stakeholders identified above are established to respond to the constitutional