The Namibian Constitution

Human rights and fundamental freedoms

Hifikepunye Pohamba Campus
2024
Historical summary
 In November 1989-elections,. Namibians took
part in the election of a Constituent Assembly,
which had to draw up a constitution for an
independent Namibia.
 A constitution is a written record of the
fundamental political principles according to
which a state is governed.
 The constitution was to be based on the
constitutional principles drawn up in 1982 by the
five Western powers (the Western Contact Group)
in consultation with the parties to the peace
negotiations.
Summary…
 Dr. Hage Geingob of SWAPO was elected
chairperson of the Constituent Assembly.
 The constitution was adopted by a two thirds
majority of the Constituent Assembly in February
1990, as was the requirement.

 9 February is known as Constitution day in

Namibia.
Two third majority
 a political principle requiring that two thirds
rather than a simple majority of the members
of a politically organized group must concur
in order to exercise the power to make
decisions binding upon the whole group.

 Two-Thirds Majority Vote means a vote

requiring twice as many eligible votes in favor
than opposed to pass.
The Namibian constitution
 It came into force on the eve of Namibia’s
independence.( 20 March 1990).
 A supreme law of the land, the ultimate source of
law in Namibia.
 All other laws trace their legitimacy and source
from the constitution.
 All laws in force before in depended shall remain in
force until repealed or amended by Act of
Parliament or until they are declared
unconstitutional by a competent court.( Article 140
(1)

Universal Declaration of Human rights(UDHR)
 The Universal Declaration of Human Rights is a
resolution adopted unanimously in December 1948
by the General Assembly of the United Nations.

 The objective of the 30-article declaration is to

promote and encourage respect for human rights and
fundamental freedoms

 It contains rights which belong equally to every

person.

 Namibian constitution ( ch.3 ) adheres to the UN

adoption- used UDHR as blueprint for drafting
Chapter 3.
 The Namibian Constitution is based on the
understanding that human dignity and human
rights belong to all people – regardless of who they
are.
 Human dignity, the quality of being worthy or
deserving respect, is an inherent quality, it does
not come from outside, e.g. through social status
or family connections.
 It exists within each person as a natural and
inseparable part of being human. Humans are
born possessing human dignity.
Human rights
 The Namibian constitution is a product of a
struggle for sovereignty and human rights.
 It contains a Bill of Rights that outlines
fundamental human rights and freedoms.( A Bill of
Rights is a list of the mot important rights of citizens
of a country) .
 Bill of rights are entrenched, i.e. they cannot be
modified by a country’s legislature.(Art.131)
Human rights and freedoms…
 Human rights and freedoms contained in chapter 3
are entrenched and may not be repealed
( cancelled) or amended ( modified)
What are human rights /individual
rights? Art- 6-20
 These are rights every individual is entitled to by
virtue of his membership of a society.
 They are rights which all human beings have
equally , by virtue of being human, irrespective of
race, sex, age, social class, national origin, ethnic
or political affiliation, and regardless of economic
status, occupation, talent, religion or ideology
(Art.2)
 They are claims(entitlements/privileges) which
individuals have- by virtue of being human- upon
society as represented by the government or other
institutions.
 Human right is something that no one anywhere
may be deprived of.
Human rights...
 They are inalienable( undeniable). They cannot be
transferred , forfeited or lost.
 They are fundamental, i.e. They are important.
Life, dignity and other values depend on them.
 They are indivisible, interdependent and inter-
related, i.e. they cannot be separated or divided,
and they depend on one another for full realization.
 They are universal, i.e they apply equally the world
over
 They are entitlements and we all have equal right
to them
Classification of human rights
 Three traditional categories, i.e.
 First Generation of rights/Blue rights ( civil and
political rights)

 Second Generation of Rights/ Red rights( social

economic and cultural rights

 Third Generation of Rights/Green

rights( environmental and developmental rights
First Generation of human rights
 These are civil and political rights.
 A class of rights that protect individuals' freedom
from infringement by governments, social
organizations, and private individuals.
 They ensure one's ability to participate in the civil
and political life of the society and state without
discrimination or repression.
 Examples: right to life, freedom of expression, of
religion, of political opinion, of conscience and
association, freedom from arbitrary arrest and
detention, right to privacy, property and equal
protection by the law.
 the right to vote, the right to a fair trial, the
right to government services, the right to a
public education, and the right to use public
facilities.
 natural justice (procedural fairness) in law, such
as the rights of the accused, including the right to
a fair trial; due process;(respect of all regal right
by state)
 the right to seek redress( set unfair situation
right) or a legal remedy; and rights of
participation in civil society and politics such as
freedom of association or the right to assemble
Second Generation of Human rights
 These are social, economic and cultural rights
 the human right to work, the right to an adequate
standard of living, including food, clothing, and
housing, the right to physical and mental health,
the right to social security, the right to a healthy
environment, and the right to education
 Cultural rights are human rights that aim at
assuring the enjoyment of culture and its
components

Third Generation of Human rights
 These are environmental and developmental rights,
i.e. solidarity rights,
 They are claimable by people as a group or community.
 Environmental rights mean access to the unspoiled
natural resources that enable survival, including land,
shelter, food, water and air
 Developmental rights: to participate in, contribute to,
and enjoy economic, social, cultural and political
development
 Examples: right to a clean environment, right to peace,
fresh air, to leisure, right to equal opportunity and
development and other rights people enjoy as part of a
community.
Civil society and human rights
 Civil society include organizations, association and
institutions that exist outside political parties and
or constituted by the state. Most of them operate
independently from government .
 Civil society organizations( CSO), non-
governmental organizations(NGO’s) or non – profit
organizations( NPO’s)

 Civil society play an active role in many spheres of

social and economic activities, thereby promoting
and enhancing human rights and democracy.
 Perform variety of service and humanitarian
functions
 Bring citizens concerns to government,
 Encourage political participation through giving
information.
 Focus on specific issues like human rights,
environment , development or health.
Fundamental freedoms- Art 21
 These are liberties, autonomies contained in ch.3
and protected by law.( see Article 25(2)
 List the fundamental freedoms as contained in
article 21.
 The strength of real democracy depends on
fundamental rights and freedoms.
 These rights and freedoms must be protected.
 Government cannot interfere or change these
rights.
 Namibia is a constitutional democracy- it functions
according to its written constitution
Limitations upon fundamental rights
and freedoms
 Art 22. Makes clear the circumstances under
which the above freedoms can be limited by the
state, e.g. to prevent criminal activity and harm
others or to protect national interests.

 Any laws placing limitations on fundamental rights

must specify the extent of such limitations and
must apply equally to everybody.