It has now become a race against time! The New Equitable Economic Empowerment Framework (NEEEF) must seemingly be ready as a bill for presentation to Cabinet in September 2016. There is an indication that this issue is going to be steamrollered shortly after the Supreme Court deemed it unconstitutional. Does the Swapo government want a repetition?
The reason why I present my point of view in an open letter is based on personal experience. When we had to discuss the legislation regarding affirmative action in 1998, I requested a copy of the bill from the relevant people in the ministry.
Their reaction was that parliament members rather had to wait until the final bill was presented to parliament. Now, all that I know about the present bill is what I have read in the media. However, it is sufficient for me to realise that the presently intended NEEEF is even more unconstitutional than the 1998 version.
In 1998, I could not convince the National Assembly, but it is recorded in the minutes that I stated that if I had the finances, I would have appealed to the court. The situation is exactly the same now but no one can claim that we did not at least try.
I handed most of my political documents to the Erfdeel Heritage Archive in Windhoek. For the past three years, since we have left Windhoek, I have not been there again, due to personal health issues and spending more time with my family, who for fifty-three years had to endure an absent father. Nevertheless, we have recently (19 August 2016) been blessed to become great grandfather and -grandmother.
I have reason enough to believe that no one, with some exceptions, including the members of the Law Reform and Development Commission (LRDC) have made a study of the relevant subcommittee’s verbatim reports. This is for the simple reason that after 26 years of constant enquiries, the reports are yet to be made available for the public, libraries and archives.
It is about the intention of the legislator. In this case, it was the subcommittee’s concept that was accepted by the entire Constituent Assembly. I have previously noted how especially Advovate Vekuii Rukoro, the first attorney-general of Namibia, pertinently assured me in the meeting that if a fuzziness over the interpretation of the constitution ever occurred, the correct intention of the legislator would prevail. It is available for anyone that wants to consult it, provided he or she is able to find a copy.
Fundamentally, I differed from all other parties. They, especially Dirk Mudge, had the Western, humanistic and individualistic point of departure. I, however, wanted to advocate the Christian (Nahas Angula, later also prime minister, always teasingly compared me to Calvin) opinion, which also encourages diversity.
In addition, without mentioning it, I also wanted to include parts of the African and Eastern approaches with regard to group rights. I have always said that we have to reconcile the best from Africa with the best from the West.
Unfortunately, from the beginning of the compilation of the constitution to the present time, group rights have been linked to “apartheid”. The DTA definitely did not want that label around its neck and Swapo wanted to beat DTA by being even more leftish.
I was the only member that pleaded for balance between group and induvial rights. Neither I, nor the subcommittee was aware of the fact that ILO (International Labour Organisation) recently (± 1989) accepted a clear Charter on Group Rights.
It was only the natural result of what has also been a clear trend in the Western mindset in the 1970-1980s. Therefore, when Swapo came with the Traditional Authorities Act, I supported it, but only differed on one point.
I wanted to see that there was a “definition for membership” as well. That was only incorporated in 2000, but it was exactly what the National Assembly in 1992 did not want to do.
This new draft bill of the LRDC regarding Affirmative Action is meant to overturn the Constituent Assembly’s decision as embodied in Article 23 of Namibia’s constitution.
Please read the scrambling that Swapo’s suggestions regarding affirmative action caused in the unavailable verbatim reports of the subcommittee (1989-1990). It stated that “a class of people” qualifies for rectification.
The current bill is busy, maybe without evil intent or unconsciously, pulling the rug of Harambee from under our president’s feet!
• Kosie Pretorius is a former member of the Constituent Assembly (1989-1990) and National Assembly (1990-2005) in Namibia.