Dr Kennedy Mabuku
In the tapestry of the unwavering love for our great nation, a profound admiration for the Namibian Constitution has blossomed, becoming the cornerstone of one’s patriotic fervour.
Today, our constitution stands as a shining example, not just in Africa but globally, of what constitutionalism should entail. This is even more appealing with the law enforcement institutions to a larger extent efficacy in enforcing laws that align seamlessly with the constitution’s noble provisions. The pledge to uphold constitutional integrity is evident, as Article 140 ensures the continuity of pre-independence laws until duly repealed or amended, reflecting a commitment to legal harmony.
Yet, within this constitutional marvel, a critical juncture emerges in the form of Section 49(2) of the Criminal Procedure Act, a provision that demands our scrutiny. This section delineates the use of force in effecting an arrest, granting authority to employ lethal means under specific circumstances. In the complicated dance between legal empowerment and constitutional principles, a disconcerting conflict surfaces, challenging the very essence of our constitutional commitment. under Section 49(2), Use of force in effecting arrest states that:
49(2) the Criminal Procedure Act stipulates that “Where the person concerned is to be arrested for an offence referred to in Schedule or is to be arrested on the ground that he is reasonably suspected of having committed such an offence, and the person authorised under this Act to arrest or to assist in arresting him cannot arrest him or prevent him from fleeing by other means than by killing him, the killing shall be deemed to be justifiable homicide.”
The practical application of Section 49(2) raises eyebrows when contrasted against the hallowed Article 6 of the Namibian Constitution. The constitutional pledge to safeguard the right to life is unequivocal, establishing a sacred ground that forbids the taking of life as a form of punishment. However, the alarming conflict arises as Section 49(2) sanctions the use of deadly force, leading to justifiable homicide in certain arrest scenarios. This constitutional problem compels us to question the very fabric of Section 49(2). Against the above, we may be provoked and encouraged to pose the following questions: Does Section 49(2) legally aligns with Namibia’s Constitutional commitment? How can lethal force be justifiable in a constitutional framework that prohibits the death penalty? Can Namibia achieve a balance between law enforcement imperatives and constitutional rights? The answer appears elusive as the section, by permitting lethal force, treads upon the constitutional bedrock designed to protect human dignity and the inherent right to life. In this discourse, the Namibian Constitution emerges not just as a legal document but as a guardian of our collective dignity and security.
Section 49(2) challenges this foundational principle in its current form, requiring a thoughtful examination of its constitutionality. As we navigate this intricate intersection of law and constitution, I sincerely hope this exploration sparks a collective reflection on the harmonious coexistence we seek between law enforcement imperatives and the sacrosanct constitutional rights that define our nation. For in the pursuit of justice and order, let us not forget the very ideals that form the bedrock of our constitutional heritage -the unwavering commitment to life, dignity, and the security of every Namibian citizen.
In scrutinising Section 49(2), it is paramount to recognise its intended purpose. While most of Namibian society aspires to live in peace and harmony, instances where lethal force is employed to quell societal disturbance are often met with relief and applause. However, amidst this societal sentiment, the significance of our supreme law – the guiding moon and the illuminating sun in our collective legal cosmos – should not be overshadowed. Our constitutional framework symbolises equal treatment and importance for all, irrespective of differing statuses in our society. Acknowledging the challenges law enforcement officials face in dealing with high-risk situations is crucial. Therefore, applying Article 6, which unequivocally upholds the right to life, may sometimes seem unrealistic, particularly when confronted with intensely precarious events.
Nevertheless, the unwavering adherence to the constitution remains imperative. Even in the face of challenging circumstances, our commitment to the constitutional principles that define us as a nation must persist. It is essential to acknowledge that Article 22 permits limitations on constitutional rights.
However, such restrictions should be carefully scrutinised, and relief is only justifiable when individuals act beyond the constitutional framework for a just cause.
With profound inspiration, we embrace our role in this esteemed nation, where visionary leaders are dedicated to the equitable treatment of every citizen, transcending social backgrounds. May Namibia be blessed abundantly.
*Dr Kennedy Mabuku provides his insights personally as a Namibian citizen, independent of any security or legal institutions. He can be contacted at kennedymabuku@yahoo.com or 0814173100.