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Concept of Constitutionalism

Article 1 Establishment of the Republic of Namibia

(1) The Republic of Namibia is hereby established as a sovereign, secular, democratic and
unitary State founded upon the principles of democracy, the rule of law and justice for all.
(2) All power shall vest in the people of Namibia who shall exercise their sovereignty through
the democratic institutions of the State
(3) The main organs of the State shall be the Executive, the Legislature and the Judiciary.

The law recognizes that for government or any government to function effectively, powers must
be vested in various organs of the state and to prevent the over concentration of power in an
organ of state, or in one individual, and to prevent the abuse of power. The principle of
Constitutionalism states that the powers granted to the government should be used according to
law and not according to the whims and caprices of individuals. A constitution limits the power
of government in two ways:

i. it imposes structural and procedural limitations on power


ii. principally though the operation of the Bill of Rights, substantive limitations are imposed

The concept of constitutionalism is achieved through:


1. Separation of Power
2. The Rule of law
3. Judicial Review of Legislation
4. Judicial Review of Administrative/Executive actions

Separation of Power
Executive
Legislative
Judiciary

Exponents of the doctrine states that in order to prevent the concentration of power on one organ
of state, each organ of state in the exercise of the functions granted by the Constitution should be
independent of each other and that one organ of state should not usurp the functions of the other
organs of state. Simply put, this doctrine recognizes that necessary powers should be subject to
the Constitution and one organ of state should not usurp the power of he other organ of state.

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Functions of each state:
Executive: In Namibia, Article 27(2) of the Constitution states that executive power is rested in
the President and Cabinet. The Namibian Constitution creates the executive presidency as
opposed to the ceremonial presidency.
Eg: Namibian President is not just a ceremonial head. As the Executive President, the President
chairs the meetings of the Cabinet. He is responsible for the appointment and dismissal of the
Prime Minister, Ministers and Deputy Ministers, Attorney General, Directed General of
Planning, Chief Justice, Judge President of High Court, other judges of the Supreme Court and
High Court, Prosecutor General, Government and Deputy government, Chief of Defence Force,
Inspector General of Police, Commissioner of Prisons…etc.

Who appoints the Permanent Secretary?


The Parliament

Legislature
1. Look at the general functions of Legislature
2. Look at the limitations imposed on the functions of the Legislature
Judicial Review of the Legislature: a. Concept of supremacy of Constitution
b. Concept of legislative sovereignty
Judicial Review of administrative action

General Functions
Article 44 of the Constitution vests legislative function in the National Assembly with the assent
of the President, subject to the powers and functions of the National Council. The Parliament in
Namibia consists of 2 chambers:
National Assembly
National Council
These two chambers are known as bi-cameral system. England operates under bi-cameral system
as well: House of Lords and the House of Commons

To the extent that the Constitution vests legislative functions in Parliament, the Parliament of
Namibia has legislative sovereignty, meaning the Parliament of Namibia has got the power to
legislate on any matter that is allowed by the constitution.

Whether legislative sovereignty can be interpreted to mean supremacy?


One has to draw the distinction between the legislative functions of Parliament that operates

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under unwritten constitution and that operates under a written constitution. In the case of the
former, the general principle is that legislative sovereignty will be interpreted to mean/to include
legislative supremacy. An example of a jurisdiction that operates under written constitution is the
UK and it is an accepted general principle in Constitutional Law that under the British
Constitution, the Parliament of UK has unlimited legislative function and that no court or
anybody has the power to declare an Act of Parliament dully passed by the House of Commons
and House of Lords invalid. However, in the jurisdiction that operates under a written
constitution, the legislative functions of Parliament are limited by the Constitution  legislative
sovereignty of Parliament is limited by the Constitution. In this case, we talk of legislative
sovereignty and the supremacy of Constitution. Namibia operates under a written Constitution
and therefore the legislative function of Parliament of Namibia is limited by the Constitution and
the general law.

Limitations: In the famous case of Malbury v Madison, it was held that the Supreme Court of
the United State has the jurisdiction to review Acts/Legislation by congress. This principle has
been adopted by many jurisdictions that operate under the written constitution. The principle is
that the courts have the power to review Acts of Parliament which are inconsistent with the
Constitution. In Namibia, this principle is incorporated in Article 25 of the Constitution.

Article 25(1)(a)
“The superior courts in Namibia have the jurisdiction to declare an Act of Parliament that seeks
to abolish or abridge the fundamental rights and freedoms invalid.”

Article 25 does not specify and address the jurisdiction of the court to declare an Act of
Parliament invalid on grounds of procedural defect. However, there are cases law precedents to
this effect. In the case of the Bribary Commissioner v Ranasighe, the Privy Council held that
under a written constitution that prescribes a procedure for law making, the courts are not only
entitled to go outside the official copy of the Act of Parliament in order to enquire into the
question of procedures but have a duty to declare the Act invalid if in fact it is passed without
due form.

Judicial Review of Administrative Action


This can be discussed under the administration of justice and the reference point is Article 18.

The principle of judicial review of administrative action are common law principles that have
been developed by the courts but in certain instances it is possible to have a specific provision in
an Act of Parliament given specific jurisdiction to the court to review the exercise of
administrative discretion. In Namibia, judicial review of administrative action is vested in the

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court by virtue of the provisions of Article 18 of the Constitution.

Article 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.”

Administrative bodies
In context of Namibia, the office of the President, various ministers, administrative bodies of the
speaker, central bank, various commissions and local government…etc.

Administrative Officials
President, ministers, members of the cabinet, directors of parastatals, various commissioners,
governors and local government institutions.

In modern administration the government machinery cannot function effectively if administrators


are not given the power to act. Because of this, Act of Parliament gives specific powers to
administrators. In such cases it is said that the administrator is vested with discretionary power.
The nature of administrative discretion is such that when an administrator exercises that
discretion he/she cannot be questioned on the correctness or otherwise decision that has been
taken consequent to the discretionary power granted to him/her by an Act of P. So long as their
decisions are not ultra vires.

“To act fairly” (as stated in the article) means that the administrative bodies/officials, while
exercising the powers given to them by law (and in most cases by Statute), must comply with the
principles of natural justice. (Must cite case after stating this.)
1. Elizabeth Frank case
2. Sikunda v Government of the Republic of Namibia

 must describe how the principles were stated in these cases.


Quote relevant parts of the case.

Natural Justice
In the context of Article 18, the court discussed the principles of Natural Justice. There are two
elements:
1. Audi alteram partem  right of hearing

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2. Nemo index causa  No one should be a judge in his own cause.

Audi alteram partem: The right of hearing means that an administrative body while exercising
the power of discretion, they must give the other party the right of hearing, this includes
representation (oral/writing), it also means that the administrator must give reasons for his/her
decision, and the reason must be detailed enough to give the party consent sufficient grounds for
appeal. (Elizabeth Frank case)

Nemo index causa: No one should be a judge in his own cause: if the administrator/admin body
has some interest in the case, the administrator should declare his intent or should not serve as a
member of the Panel deciding the case. This is a rule against bias(Sikunda, Elizabeth case)

Acting reasonably means that the administrator should not be influenced by extraneous factors or
irrelevant factors (Chilufya case)
What are the common law principles?  Natural Justice
Relevant legislation: in addition to acting fairly and reasonably, the administrators are also
required to comply with any requirement in a Statute/Legislation that grants them that authority.
These powers are granted by Parliament. Eg: Sikunda case, it was held that the Minister did not
comply with the necessary requirement i.e there was no recommendation from the Security
Commission and therefore the deportation order was irregular. And the court accordingly
declared the deportation order non and void.

What happens if the requirement of Article 18 is not complied with?


- The court has the power to declare the decision on the act non and void, and to set it
aside.
- As a general rule, the court cannot substitute its decision for that of the administrative
officials/body because that power is vested in the administrative body/official, but not the
court.
- However, under certain circumstances the court can substitute its decision from that of
the administrator (Frank case).

In addition to the above, the court can also make such orders
a. Certiorari
b. Prohibition/Interdict
c. Mandamus
d. Habeas Corpus
e. Damages

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Certiorari is an order issued by a higher court ordering an inferior court/tribunal to make
available to the higher court the transcripts of the proceedings conducted by that inferior
court/tribunal

Prohibition/Interdict is an interim order issued by the court ordering an individual/institution to


refrain from acting in an alleged unlawful manner until the case has finally been dispensed off.
RDL, known as interdict

Mandamus is a court order ordering an administrative body/official to perform a function


imposed by law.

Habeas Corpus is an order issued by the court to an organ of state, institution or individual, or a
detaining official to release a person held unlawfully

In addition to these remedies, an individual whose rights have been adversely affected by the
decision/act of the administrator, can apply for damages if this can be established and quantified.

The Rule of Law


The doctrine of the rule of law and constitutionalism are related concepts because they both deal
with the limits on the exercise of the powers of government. The rule of law deals with
governance according to law, and not according to momentary whims and caprices of
government and the protection of the fundamental right of the individual.

A.V Dicey:
1st ~ No man is punished or can be lawfully made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the ordinary courts of the land.

2nd ~ the principle of equality, which is to effect that nobody is above the law and everybody is
subject to the jurisdiction of ordinary courts; and

3rd ~ a general principle that in Britain the rights of individuals are effectively protected by the
action and decisions of ordinary courts rather than by guarantees contained in a constitution.

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Democracy

Democracy is defined as ‘government of the people, by the people, for the people. Democracy
implies that government takes place with the consent of the governed and in the interests of the
governed. Democracy is a system of political governance whose decision making is subject to
the controlling influence of citizens who are considered political equals. It is apparent from the
preamble of the constitution that one of the basic objectives of our constitutional enterprise is the
establishment of a democratic and open government in which the people shall participate to some
degree in the law-making process.