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 PowerExecutive

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

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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.

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.

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Whether legislative sovereignty can be interpreted to mean supremacy?

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

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

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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

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

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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

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

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d. Habeas Corpus

e. Damages

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 LawThe 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.

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