By Phil ya Nangolo

In recent days, in my capacity as a leading human rights practitioner, I have been striving to impress upon especially our judiciary and our legal fraternity about the fact that the entrenchment of the basic rights and freedoms under Chapter 3 of the Namibian Constitution (NC) is of preemptory importance and further that Chapter 3 of NC is hierarchically superior over and above all and any other provisions of NC. 

This article is, therefore, part of my overall mission to persuade especially our judiciary and our legal fraternity about the fact that everyone in Namibia has the inherent and automatic legal standing to promote respect, protection and realisation of the basic human rights and freedoms enshrined in NC. 

To put it differently, the primacy and sacrosanctity of the rights and freedoms entrenched under Chapter 3 of NC require and enjoin everyone in Namibia to respect, protect and realise or to cause to be respected, protected and realised the basic rights and freedoms enshrined under Chapter 3, read with paragraphs 1-3 of the Preamble to, and Article 144, of NC, in general, and, in particular, before the legislative, executive and judicial organs of the Namibian State.

Still put alternatively, everyone in Namibia has the obligation towards everyone else to respect, protect and fulfil the basic rights and freedoms enshrined under Chapter 3, read with paragraphs 1-3 of the Preamble to, and Article 144 of, NC before the legislative, executive and judicial organs of the State.

In other words, everyone in Namibia has the legal right and responsibility erga omnes to respect and uphold or caused to be respected and upheld all the basic human rights and freedoms consecrated under Chapter 3 of NC for everyone else, without distinction of any kind, such as race, colour, gender, language, religion, political or other opinions, national or social origin, property, birth or another status.

The above statements then also mean that everyone in Namibia has an obligation erga omnes to respect and uphold the basic human rights and freedoms referred to in NC and all other regional and international human rights treaties binding upon Namibia.

Still, the above statements mean that no one in Namibia must stand idle while the basic human rights and freedoms enshrined in Chapter 3 of NC are violated or threatened to be violated and further that everyone in Namibia has an inherent legal standing before the legislative, executive and judicial organs of the State to promote respect, protection and realisation of all and any of such rights and freedoms.

It is, moreover, my considered opinion that the responsibility or obligation of all individuals and all organs of society in Namibia and worldwide to respect and uphold the basic human rights and freedoms for all has assumed the character of a peremptory norm of customary international law – also known as jus cogens norms.

As contemplated by Article 53 of the Vienna Convention on the Law of Treaties (VCLT), a peremptory norm of jus cogens is a norm of customary international law, which is accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted.

The jus cogens and erga omnes character of the responsibility of everyone to respect, protect and realise the basic human rights and freedoms for everyone else derives from inter alia the Preamble of the UN Universal Declaration of Human Rights (UDHR), which inter alia reads that the UN General Assembly (UNGA) has proclaimed the UDHR as “a common standard of achievement for all peoples and nations” with regard to respect, protection and fulfilment of the basic human rights and freedoms referred to in both UDHR and the UN Charter.

As a matter of fact, the promotion of respect, protection and realisation of the basic human rights and freedoms for all humans is one of the main purposes and principles of the UN Charter (see Article 1), and the supremacy of this Charter over and above any other international treaty is provided for under Article 103 thereof.

Chapter 3 of NC is consistent with the provisions of the UDHR and all other regional and international human rights treaties deriving from the UDHR.

The automatic legal standing of all individuals, groups and other organs of society with regard to respecting and upholding the basic human rights and freedoms consecrated under the UDHR is also reaffirmed by, and stems from, the provisions of the 1998 UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms, also known as UNGA Resolution 53/144.

Articles 1 and 18 of UNGA Resolution 53/144 specifically stipulate that individuals, groups, institutions and non-governmental organisations have an important role to play and a right and responsibility in “promoting the rights and freedoms set forth” in the UDHR. 

While Article 9(3)(a) of Resolution 53/144 stipulates that everyone has the right, individually and/or in association with others “to complain about the policies and actions of individual officials and governmental bodies with regard to violations of human rights and freedoms, by petition or other appropriate means, to competent domestic judicial, administrative or legislative authorities [...] which should render their decision on the complaint without undue delay”.

It is also my view that Article 9(3)(a) of Resolution 53/144 is entirely consistent with Articles 5, 18 and 25(2), read with Articles 1(2) and 146(2)(b), of NC with regard to the legal standing of, among others, individuals and groups to complain before inter alia the judicial organs of the State about human rights abuses.

It is also my firm view that Article 25(2) of NC accords everyone in Namibia offended by, or complaining about, a violation or a threatened violation of any of the basic human rights or freedoms guaranteed by NC locus standi to approach a competent court to obtain effective redress.

Having been adopted by UNGA by consensus, Resolution 53/144 forms part of the general rules and principles of public international and, ipso facto, also forms part of Namibian law in terms of Article 144 of NC.

Finally, it is my considered opinion that the supremacy and sacrosanctity of the basic human rights and freedoms entrenched under Chapter 3 of NC require and enjoin our judiciary to broadly afford and accord locus standi for everyone complaining that a fundamental human right or freedom consecrated by Chapter 3 of NC has been infringed or threatened to seek an effective remedy before all Namibian courts.

Also finally, since Chapter 3 is hierarchically superior over and above all and any other provisions in NC, it is abundantly clear that Chapter 3 ab initio overrides all common law in terms of which some – not all – of our judges and legal practitioners cling to die-hard common law approach to locus standing for individuals, groups and associations complaining about infringement or threatened infringement of any of the basic rights or freedoms entrenched under Chapter 3 of NC.

Still finally, it is also my firm opinion that the primacy and sacrosanctity of our Namibian Bill of Rights automatically prohibit our judiciary and legal practitioners from interpreting the provisions of especially Articles 18 and 25(2) of NC narrowly and in accordance with the common law approach to locus standi for individuals, groups and associations claiming that any of the basic human rights or freedoms guaranteed by Chapter 3 has been infringed or threatened.

It is, in any event, my solid view that respecting and upholding the basic human rights and freedoms enshrined in Chapter 3 has the character of jus cogens and obligation erga omnes under general international law, such that the common law approach to legal standing in matters related to the Bill of Rights had been overridden and outlawed in Independent Namibia by inter alia the provisions of Articles 25(1)(a) and 66(1) of NC.