The Namibian Constitution and the Devil in our law’s detail

By Wilhelm Amukoto

The birth of the Namibian Constitution ushered in an era that promised social, political, and economic equality, independence and justice.

Celebrated as the peoples’ emancipator, it grants and guarantees the most basic of human rights to a majority long-drowning in persecutions. Sadly for some, however, the waters of persecution seem yet to subside.

Every Namibian citizen shall have the right to life, “The right to life shall be respected and protected; No law may prescribe death as a competent sentence; No executions shall take place in Namibia” – Article 6, the Namibian Constitution.

To those well-versed in law, the Constitution does not merely present the rights and freedoms granted, but is also the bar that qualifies all other laws in Namibia.

Loosely translated, this means that if any law is contrary to any provision of the Constitution, that law shall, for that reason, be invalid – that is, unconstitutional.

As late as July 2005, fifteen years after the introduction of the Constitution, young James** lost the right to his life, and eventually his life, as guaranteed by Article 6 of the Constitution, when it was abruptly ended by a police officer in a dramatic turn of events in the Windhoek suburb of Khomasdal.

Most would agree that the police officer should be charged with murder and sentenced to imprisonment for his “crime”, and fairly so, right?

To those in agreement, how shocking would it be to learn that the law, as a matter of existing fact, allows for the police officer to have killed young James!

The essence of Section 49 of the Namibian Criminal Procedure Act, as a law, is to allow a police officer, or a private citizen, in the process of arresting a suspected criminal for certain crimes, to kill that suspected criminal if the person making the arrest cannot make the arrest or prevent the suspected criminal from fleeing by any other means, therefore effectively prescribing a death sentence and allowing execution on the spot.

This seemingly unconstitutional provision that challenges and threatens the Constitution and the right to life, a right from which all other rights are born, still exists unabated to this day.

The circumstances surrounding the death of young James may provide a better understanding of the reality of Section 49.

On the night of the incident, it is alleged that James and a friend had been out clubbing, unknowingly enjoying the last minutes of James’ life, and had returned mischievous and drunk on youth and alcohol.

Against their better judgment, it is alleged that the two then decided to break into a neighbour’s house.

The neighbour’s wife, who was home at the time, became aware of the presence of the two intruders, and telephoned her husband, who came to her rescue accompanied by a friend who coincidentally happened to be a police officer, who later fired the shot that ended James’ life.

In his defence, the police officer claimed to have been in the process of arresting the pair, thus relying on Section 49 as a good reason for the shooting.

In coming up with the Namibian Constitution at the dawn of independence, Namibian lawmakers sought to address this exact and other similar injustices that had plagued the people of pre-independent Namibia.

A now deceased Namibian judge of note once wrote of the Constitution as the expression of “…the nation’s commitment to the creation of a democratic society based on respect for human dignity, and the protection of liberty”.

The resurfacing of incidents such as these in post-independent Namibia brings back frightful memories of days past, when police officials acted as the judge, the jury, and the executioner, in disregard of the value of human life, killing Kakurukaze Mungunda, and many others, in such hasty fashion.

Should the police, as national law enforcement agents, not have as their primary duty, the maintenance of order and the protection of people and property from those seeking to cause harm? – Yes, most certainly.

Then it should be conceded that Section 49 may serve as a necessary evil as a means to this end.

Circumstances may present themselves where in order to protect the sheep, you have to shoot the predatory wolf, that is, in a situation where a criminal strapped with a suicide bomb vest walks through Maerua Mall on a busy month-end threatening the lives of ordinary innocent Namibians, shooting the criminal before he/she detonates his/her bomb is necessary to protect the innocent.

Moreso, Section 49 is important in guaranteeing a sense of safety-on-the-job for law enforcement agents, who regularly encounter dangerous criminals who pose a threat to their lives.

For these reasons, the existence of Section 49 is not hard to understand.

Nonetheless, the killing of one by another should never be taken lightly, and should be considered and condoned only in the most extreme circumstances, however lawful or not.

Life is a privilege, one which no human being has ever been granted more than once.

This alone necessitates that that privilege be respected and guarded as jealously as the Constitution itself.

Section 49, in its current form, can be considered grossly unconstitutional, but in compromise, a necessary evil – the devil we turn to in desperation to protect our most innocent and vulnerable.

‘James’ is a fictitious name. The details depicted in his story and the characters herein, and any resemblance to real people, living and/or dead, is not coincidental. They have deliberately been adapted from Absalom Johannes v the State, CA 20/2009, judgment delivered 2 November 2009.

*Wilhelm Amukoto is a legal scholar, Justice Training Centre Candidate Attorney, and an active observing participant on issues of national interest. He can be contacted through email at w.amukoto@gmail.com

July 2016
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