THE concept of an “immutable principle” is defined as a principle that provides a substantive limit on a political process related to the formulation or amendment of a constitution. Immutable principles can be broadly categorized into one of two types.
The first category is commonly referred to as “constitutional principles,” that is, principles put forth before a constitution-making (or amending) process takes place, with which the final document (or revision) must comply. Namibia and South Africa’s constitutional principles are prime examples.
A second form of immutable principles is commonly referred to as “unconstitutional constitutional amendments” (UCA’s) that is, limitations on how a constitution can be amended. The quintessential example of this check is found in the German and Indian constitutions.
Though similar, there is no inherent nexus between constitutional principles and UCA’s. Though it would be possible to have constitutional principles give rise to an unconstitutional constitutional amendment theory, this need not be so. However, this remains an open debate, with some arguing that in certain instances, constitutional principles do have a life beyond the formulation of a new constitution, that is, that constitutional principles can give rise to UCA’s. Others disagree, suggesting that constitutional principles cease to have any legal significance once the procedural requirements of drafting the constitution are completed. Clearly, though, constitutional principles are not a prerequisite for UCA’s.
Though they are not directly connected, the concepts of new constitutionalism and constitutional principles have developed somewhat in tandem, and so, to understand the connections and tensions between these two theories, let us give a brief account of both concepts.
New constitutionalism is based on the premise that for a constitution to be legitimate, it must have the support of the people.
Without this legitimacy, there is less assurance that either the constitution or rule of law generally, will be willingly accepted and internalized.
In order to achieve such legitimacy, new constitutionalism borrows from the ideas of democracy, to ensure that the populace is involved with the process of drafting the constitution in order to assure that the final result is as inclusive as possible. Then a constituent body will be charged with drafting the final constitution. Finally, when a document is drafted, it is then to be ratified by the people, giving the people the final say.
There is a potential tension between new constitutionalism and constitutional principles because the latter are inherently elitist-driven. First, constitutional principles are counter-majoritarian, raising questions about their compatibility with new constitutionalism, which is premised upon democratic inclusion.
Second, constitutional principles are created by political elites and/or international actors who do not necessarily have any legitimacy with the people.
Third, there is no natural limit to what can be substantively included within constitutional principles. Thus, there is no guarantee that constitutional principles will ultimately comport with the will of the people.
Constitutional principles are a relatively new phenomenon; the first example of constitutional principles is the 1982 Constitutional Principles of Namibia when on March 21, 1990, Namibia formally declared its independence. This marked the end of a long path to self-rule, and was the result of not only a domestic struggle, but also significant international actors’ involvement in the process of independence led primarily by the South West Africa People’s Organization (SWAPO) and significant international diplomacy, including efforts from the Front Line States and the Western Contact Group, to end South Africa’s rule.
In 1978, the U.N. Security Council adopted Resolution 435, which called for the independence of Namibia through “free elections under the supervision and control of the United Nations.” South Africa originally agreed to abide by this resolution, but it took more than a decade for these elections to take place, largely due to South African intransigence.
Second, South Africa seemed especially concerned over the demise of apartheid, and the future status of the Afrikaners living in Namibia.
In 1982, the Western Contact Group (led by the United States), the Front Line States, and SWAPO drew up constitutional principles to guide both the process for creating, and the final content of, a new constitution. These principles were indirectly adopted by the Security Council, though their legal status in Namibia was somewhat unclear. However, when the Constituent Assembly met for the first time on November 21, 1989, the members unanimously resolved to use the 1982 constitutional principles as a framework for Namibia’s new constitution. This was the first time where constitutional principles were used to shape the drafting of a future constitution.
The 1982 constitutional principles are formally named “Principles concerning the Constituent Assembly and the Constitution for an Independent Namibia.” As this name suggests, the document actually contains two parts, the first addressing procedural aspects related to the adoption of the constitution, and the second addressing the substantive aspects of the constitution.
The principles state that Namibia will be a “unitary, sovereign, and democratic state” marked by constitutional supremacy. They call for a three-branch republican government, with the executive and legislative being elected through free, fair, and periodic elections. They state that the judiciary will be independent, and “will be responsible for the interpretation of the Constitution and for ensuring its supremacy and the authority of the law.”
Principle 5 requires the constitution to have a declaration of fundamental rights consistent with the Universal Declaration of Human Rights, including the rights to life, personal liberty, freedom of speech and press, freedom of assembly and association, due process and equality before the law, protection of property, and freedom from racial, ethnic, and other discriminations.
Principle 6 prohibits retrospective criminal offences. Principle 7 calls for provisions to be made for the “balanced structuring of the public service, the police service and defence services,” as well as equal access in recruitment processes. Finally, Principle 8 provides for elected councils on the local and/or regional level. The need for this was perhaps enhanced following Namibia’s apartheid history, which was hallmarked by a strong central government.
Marinus Wiechers argues that, because S.C. Res. 435 authorized the Secretary General to ensure the independence of Namibia through free elections, and because S.C. Res. 632 incorporated the 1982 Principles, that the Secretary General was then bound to assure that these principles were followed in making Namibia independent. (See Marinus Wiechers, Namibia: The 1982 Constitutional Principles and Their Legal Significance.) However, when the Administrator General issued Proclamation 62 on Nov. 6, 1989, convening and laying out the procedure for the Constituent Assembly, no mention was made of the 1982 principles. (Marinus Wiechers, Constitution-Making, Peace-Building, and National Reconciliation: Namibia 8–9 (Jan. 2003) (unpublished manuscript, on file with author).
Be that as it may, the Namibian Constituent Assembly was convened on November 21, 1989. By February 9, 1990 – less than three months later – the final constitution had been adopted by consensus. Elections for the Assembly were held from November 7-11, 1989, with SWAPO winning 60% of the seats, a significant majority, but still less than the two-thirds required to adopt a constitution. Given SWAPO’s majority status, its draft was expected to be of significant importance and was accepted at the beginning of the Assembly as the initial working document.
After adopting the 1982 Principles and the SWAPO submission, the Assembly turned this “working document” over to three constitutional law experts from South Africa, who worked for three weeks to turn this working document into a draft. The document was then referred to a 12-member Constitutional Committee, who reviewed the experts’ draft, and worked with the experts for one week to create a final draft. This was then referred for consideration to the entire Assembly. After brief debate, this was unanimously adopted on Feb. 9, 1990.
In terms of the ideals of new constitutionalism, this process fell short in terms of public participation. The only public participation was through the election of members to the Assembly (although significant political advertising did occur in the run-up to these elections, which also focused on constitutional issues, and thus did play a rule in informing the public).
The question of “enforcement” is also hard to assess. On the one hand, there was no formal Constitutional Court of Namibia to certify that the 1982 principles had been followed as it happened when on September 6, 1996, South Africa’s Constitutional Court rejected the proposed draft of the constitution as it was not in conformity with thirty-four “constitutional principles” that had been laid out in South Africa’s 1994 Interim Constitution.
After the Constitutional Court identified the draft’s deficiencies, the constitutional assembly reconvened and amended their original draft. This amended version was later certified by the Court, and came into force on February 7, 1997.
South Africa’s use of constitutional principles is the most robust example of how “immutable principles” can be used as a check on democracy in general, and the politics of drafting a constitution in particular.
However, in reporting to the Security Council, the Secretary General asserted that the new constitution did, indeed, comport with the 1982 principles.
According to the U.N. SCOR, 45th Sess., at 1, U.N. Doc. S/20967/Add 2 (1990), as the fundamental law of the sovereign and independent Republic of Namibia, the Constitution reflects the ‘Principles for a Constituent Assembly and for a Constitution for an independent Namibia’ adopted by all the parties concerned in 1982 and set out in the annex to document S/15287 of July 12 1982. Thus, though there was no explicit enforcement mechanism such as the one found in South Africa, Namibia’s experience with constitutional principles was largely successful.
It is therefore my submission that the 1982 constitutional principles do not explicitly state the substance as they only extend to the form of government and do not go into great detail about how certain government agencies should function. In addition, I contend that these principles ceased to have any legal significance once the procedural requirements of drafting the constitution were completed.
However, for a constitution or its amendment to be legitimate, it must have the support of the people and should not only be an elitist-driven process but ensure that the populace is involved in order to assure that the final result is as inclusive as possible and ensure that the rule of law will be willingly accepted and internalized.
Surely, we elected our representatives who are widely consulted but as citizens, we never ceded absolute authority of our sovereign rights as they are inalienable, immutable and not transferable except on a temporary basis. One wonders if this is one of the congress’s resolutions and if the structures of the party were consulted to make such radical changes of the system. We need to be consulted and informed as the NBC Director General is doing.
• Disclaimer: The opinions expressed here do not necessarily reflect those of my employer and this newspaper but solely reflect my personal views as a citizen.