Kae MaÞunÿu-Tjiparuro
ONE wonders how many out there, if any, would remember and know what day next Monday, February 9, is and what it means to Namibia’s political history.
Yes, this is the day when the Constituent Assembly, exactly 25 years ago on that day unanimously adopted the Namibian Constitution. This document outlines the country’s governance structures and ethos, as well as define the parameters and relations between them.
Following its adoption, it ultimately paved the way for the ushering in of the country’s independence on March 21, 1990. Since, Namibia has been basking in the glory of the refinements of this document which has earned it the adulation, nationally, regionally, continentally and globally, as the best if not the best of the best or the best.
Attendant to this adulation has been the question, often posed on the occasion of its anniversary, if such it is a living document. It has never been clear what such a term “living document” holds and its real meaning to different Namibian constitutional experts if such a hybrid ever exists in Namibia, and/or observers, giving their own interpretations as to what they think, understand or interpret with the term “living document”.
As much, never have those who have often posed the question been magnanimous in offering their thoughts, interpretations and understanding of the term. Thus, year in and year out, it has been a repetition of the same question without anyone actually giving much attention to the keyword “living”.
My constant companion all these years, the Webstster’s New Encyclopedic Dictionary, defines living variously as “having life”, “active”, “exhibiting the life or motion of nature”, “the condition of being alive”, “means of subsistence” and “livelihood”. I am inclined, driven by my ideological disposition, towards the latter two definitions – “means of subsistence” and “livelihood”. Which ultimately means that the Constitution must be providing all those within the borders of Namibia with some means of subsistence and livelihood, directly or indirectly, by enabling the things in life, foremost materially that enables them to subsist and make a livelihood. This cannot be only in a theoretical sense but as much in a practical sense. Practical sense in as far as the Constitution helps citizens, and all and sundry, within the Namibian borders, to make a livelihood. Materially and otherwise, theoretically and practically. Having said this, one cannot but quickly note that most and foremost, the provisions that the Namibian Constitution has been hailed for as a good document, have to do with aesthetic and theoretical cravings that in themselves do not speak to the material well-being of her citizens and inhabitants, that is to make a livelihood.
This is as much as they facilitate, or are supposed to facilitate, an enabling environment for one to make a livelihood. These are the provisions like those enshrined in Chapter Three of the Namibian Constitution, providing for Fundamental Human Rights and Freedoms. These provide, among others, for the protection of life, liberty, respect for human dignity and for freedom from slavery and forced labour, freedom to a fair trial, freedom from arbitrary arrest and detention, etc. No doubt all these rights and freedoms, which this Chapter provides for, are necessary for “subsistence” and “livelihood”. But inherently and intrinsically in themselves they cannot provide for “subsistence” and “livelihood”.
Yes, the Constitution provides for “Protection of Liberty”. “No persons shall be deprived of personal liberty except according to procedures established by law”. “All persons shall be equal before the law”, “No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status”.
Granted the importance of these provisions, and also granted their importance in aiding and facilitating the central objective, the satisfaction of the foremost needs and wants as per Maslow’s ‘hierarchy of needs’, and thus “subsistence” and “livelihood”, it is and may be in this respect that the Namibian Constitution could be said to be a non-living document.
Because besides for protecting and guaranteeing freedoms and rights, and besides for protecting life itself, is it in anyway giving life to such life it is protecting? This is the pertinent question that we should be able to stop and pause on as we observe the anniversary of this important document. Especially in view of the recurrent question whether the Namibian Constitution is a living document or not.