Seitenhistorie

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a. Government and the Executive Branch

Wiki-MarkupThe executive consists of the President, who is elected by public vote, and the Cabinet which is appointed by the President (Art. 27 \ [2\] NC). Chapters 5 and 6 deal with these two arms of the executive. The functions, powers and duties of the President are laid down in Art. 32 NC. These widespread powers, particularly when it comes to appointments (Art. 32 \ [3\], \ [4\] NC), are subject to one main limitation: Art. 32 (9) NC makes all decisions of the President subject to review, reversal or correction by the National Assembly if voted for by a two-thirds majority. Thus, in principle, a system of limitations on the office of the President is provided for in the Constitution. However, in reality the President holds the very central position in the State and the powers of the executive are predominant. This situation is possible because of the weakness of the legislative branch and is demonstrated by the public perception of the President as a symbolic figure (Diescho 2009: 107). This has to be seen in the context of the key role of the ruling party SAWPO (South West Africa People’s Organization) which led the struggle for Namibia’s independence (see below). \\
Furthermore, there are problems within the administration. The Constitution provides the necessary basis for the legality of public administration. Art. 18 NC requires procedural standards to be complied with by the administration when undertaking an administrative action and gives the citizen the constitutional right to challenge a decision before a competent court or tribunal. Art. 18 NC has been subject to several decisions of the superior courts (Coleman/Schimming-Chase 2010: 206). In addition Art. 5 and 25 (1) NC oblige the administration to adhere to fundamental rights and freedoms. However, the public sector is known for incompetence and inefficiency and there is a general perception that it is prone to nepotism, tribalism and corruption (Amoo/Skeffers 2008: 35). \\

b. Special Institutions for the Control of the Executive: the Ombudsman*

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The legislative branch as outlined in Chapter 7 and 8 consists of the National Assembly and the National Council. Legislative power is primarily vested into the National Assembly, Art. 44 NC, whilst the National Council, representing the regions, merely has an advisory and opinion role. The passing of a law by the National Assembly is under the precondition of assent by the President. A dissent by him can be overruled by a two-thirds majority of the National Assembly, Art. 56 NC. The Constitution does not give the President legislative power in the form of decrees that can sideline the ordinary legislative process (Amoo/Skeffers 2008: 25). The constitutionally balanced system between the legislature and the executive faces one stark reality: Ministers are appointed from the 72 members of the National Assembly. Because there are 42 Cabinet Ministers, who remain members of the National Assembly, this means that the majority of deputies are part of the executive (Amoo/Skeffers 2008: 22, 25). Thus in fact, the National Assembly does not use its strong constitutional position and Parliament’s control of the executive is undermined. This is attended by Parliament’s own deliberate subordination under the executive because of the understanding that the country is in need of a strong executive because of the circumstances of transition (Bukurura 2002: 80). This is in line with the influential position of the SAWPO party which gained 57 % of the votes at independence, subsequently increased, which has given them a two-thirds majority since 1994. In contrast, the opposition is scattered and rather weak.
In addition to the acts passed under the current constitutional setting, Art. 140 NC stipulates that all laws at the date of independence shall remain in force until repealed by Act of Parliament or declared unconstitutional by a Court. This solution was chosen in order to avoid a legal vacuum in the transition after Independence. Correspondingly, Art. 66 (1) NC stipulates the continuing validity of the common law in place as long as it does not conflict with the Constitution or statutory law.
To the same extent as the confirmation of the common law, Art. 66 (1) NC recognises customary law. The latter plays a significant role in Namibian society, particularly in rural areas. Furthermore, the Traditional Authorities Act 25 of 2000 permits the law-making power of traditional authorities. Thus with respect to customary law, Namibia opted for a model of regulated dualism (Hinz 2008: 63 ff.).

d. Judiciary

Wiki-MarkupChapter 9 deals with the administration of justice. The judiciary consists of the Supreme Court, the High Court (which both form the superior courts) and the lower courts (Art. 78 \ [1\] NC). Art. 78 (2) and (3) NC emphasise the constitutional guarantee of independence of the judiciary. The superior courts are mandated with the interpretation, implementation and upholding of the Constitution, particularly the fundamental rights and freedoms guaranteed by it, Art. 79 (2), 80 (2) NC (see Coleman/Schimming-Chase 2010). According to Art. 32 (4) (a) together with Art. 82 (1) NC the President appoints superior court judges on the recommendation of the Judicial Service Commission. The removal of a judge works respectively, but only for limited reasons on which the Judicial Service Commission leads the investigation, Art. 84 NC. Apart from the permanent judges, there is the possibility of appointing acting judges (Art. 82 \ [2\] and \ [3\] NC), a tool which is continuously used (see Tjombe 2008). The purpose of their assignment in the Supreme Court is the filling of casual vacancies and their appointment on an ad hoc basis in cases dealing with fundamental rights and freedoms in order to furnish special expertise. In the High Court the broad function is to enable the Court to deal expeditiously with its work. The acting judges can be of other nationalities than Namibian. The rationale behind these provisions is the fact that Namibia is suffering from a lack of qualified lawyers. \\
The use of acting judges was subject to controversy regarding their independence, particularly with regard to the foreign nationals (see VonDoepp 2009). The situation was to be remedied by an amendment of Art. 82 (4) NC which introduced the requirement to employ them under a fixed term contract (Namibian Constitution Second Amendment Act 7 of 2010). Apart from the issue of acting judges, a real threat to the independence of the judiciary lies in the general appointment procedure itself and the fact that the judges are appointed and dismissed by the President. The Judicial Service Commission has a mere advisory function (“on recommendation”). Additionally, the appointment of members of the latter Commission is dominated by the President as well (see Art. 85 \ [1\] NC). Despite these impediments it is commonly believed that the independence of the judiciary is widely observed (this results from a statistical evaluation in 2006: VonDoepp 2009; in contrast very critical on recent developments, Diescho 2009: 103, 108; highly critical generally: NSHR 2004). \\ \\ Traditional courts are regarded as lower courts in terms of Art. 83 NC. The Community Courts Act 10 of 2003 provides for the recognition and establishment of such courts. It envisages a new uniform court structure which has not yet been fully implemented. Appeals against the traditional courts’ decisions lie with the magistrates’ courts and consequently with the formal court system (Hinz 2008, p. 66, 77 f.; see Hinz 2010, on the relevance of constitutional requirements such as the rule of law and the independence of the judiciary in traditional courts). \\

Traditional courts are regarded as lower courts in terms of Art. 83 NC. The Community Courts Act 10 of 2003 provides for the recognition and establishment of such courts. It envisages a new uniform court structure which has not yet been fully implemented. Appeals against the traditional courts’ decisions lie with the magistrates’ courts and consequently with the formal court system (Hinz 2008, p. 66, 77 f.; see Hinz 2010, on the relevance of constitutional requirements such as the rule of law and the independence of the judiciary in traditional courts).

e. Substantive notion of the Rule of Law

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In the jurisprudence of the superior courts, the concept of proportionality is used, however so far only in singular cases. The most prominent is the _Kausea_\-case (_Kausea v Minister of Home Affairs and Others_ \ [1995\] 3 LRC 528 \ [SC\]), in which a regulation was held invalid because it did not pass the proportionality test with respect to the freedom of speech and expression and its possible limitation (Art. 21 \ [2\] NC). Therein the Supreme Court referred to Canadian case law on its interpretation of proportionality (Koutnatzis 2011: 47). In another case decided by the High Court, proportionality was mentioned as a tool to control the exercise of discretion by the administrative authorities (_Immanuel v Minister of Home Affairs and Others_ 2006 \ [2\] NR 687 \ [HC\], 702 A). Indeed it was not decisive in the latter case, though it was referred to as “the still-evolving doctrine of proportionality”. \\

f. International obligations

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