¹ Originally known as South West Africa.

² See e.g., Johnstone, , “The Namibia Dispute: The Transitional Government of National Unity and the Problem of Enforcing Resolution 435” (1985) 15 Melbourne U.L.R.Google Scholar and “Resolution in Namibia?” 339 (1989) 17 Melbourne U.L.R. 243Google Scholar; Hatchard, J. and Slinn, P., “Namibia: The Constitutional Path to Freedom” (1990) International Relations 137CrossRefGoogle Scholar; Katjavivi, P., A History of Resistance in Namibia, London/Addis Ababa/Paris, 1988Google Scholar.

⁴ See Katjavivi, op. cit. 72–73, xxiiiGoogle Scholar; Johnstone, , “Resolution in Namibia?” (1989) 17 Melbourne U.L.R. 243, 252nGoogle Scholar.

⁴ See Keesing's Record of World Events Vol. XXXIV, 36132–3. For the text see Blaustein, op. cit.

⁵ 31 (2) Africa Confidential 1Google Scholar.

⁶ Ibid.

⁷ This reflects a long-standing concern of SWAPO; see, for example, its manifesto, “Towards an Independent and Democratic Namibia: SWAPO's Policy Positions” reproduced in Blaustein, Constitutions of Dependencies and Special Sovereignties. See Katjavivi, op. cit. 111 on Namibian women's “three levels of injustice”, citing SWAPO Women's Council in UNESCO Document SS-83/CONF. 619/6.

⁸ Art. 132(3).

⁹ The latter is discussed below.

¹⁰ See the comment of Hatchard and Slinn, op. cit. at 147 on the use of the word “ineptitude”.

¹¹ As, for example, appeared in the 1979 Constitution of Nigeria (art. 132), reproduced in the new Constitution, Decree No. 12 of 1989 (art. 140), requiring the appointment of a Committee of people who are not members of the public services, a legislature or a political party to investigate the allegations made in the National Assembly resolution.

¹² See, for example, art. 132(10) of the 1979 Constitution of Nigeria and 140(10) in the new one; the equivalent provision for the removal of state Governor defeated an attempt to challenge the impeachment of Governor Musa of Kaduna: see Musa v. Hamza 3 Nig Constl LR 439Google Scholar; Musa v. Speaker, Kaduna House of Assembly, ibid., 450; Musa v. Kaduna State House of Assembly, ibid., 463. See Cottrell, J., “Testing a New Constitution: the Nigerian Constitutional Law Reports” (1983) 8 Aligarh L.J. 45–79Google Scholar.

¹³ Kiribati, Marshall Islands and Nauru, see Ghai, Y. and Cottrell, J., Heads of State in the Pacific, Suva, 1990Google Scholar.

¹⁴ See, for example, the Constitution of Tuvalu which provides (s. 52(2)) that no court is to inquire whether the Governor-General consulted anyone, where he is required to consult, or whom he consulted or what the nature of the consultation was; and that of Zimbabwe s. 31K introduced by the Constitution of Zimbabwe Amendment (No. 7) Act 1987.

¹⁵ See S. P. Gupta v. Union of India AIR 1982 SC 149, esp. para. 86 on what “consultation” requiresGoogle Scholar.

¹⁶ E.g. the Indian Constitution art. 72(1), Fiji Constitution of 1970 s. 88, Vanuatu art. 36, Solomon Islands s. 45.

¹⁷ The same problem would arise if the President is required to consult the Cabinet (under the general consultation requirement) over the appointment of the Auditor-General, who is appointed on the recommendation of the Public Service Commission, and with the approval of the National Assembly (art. 127(1)).

¹⁸ On the provisions in the Pacific see Ghai, Y., “Constitutional Foundations of Public Administration” in Ghai, Y., ed., Public Administration and Management in Small States, Suva, 1990Google Scholar.

¹⁹ Nwabueze, B. O., The Presidential Constitution of Nigeria, London, 1982, 145 suggests such an interpretation of a similar phrase in the Nigerian ConstitutionGoogle Scholar.

²⁰ As indeed is currently the case, some of the judges coming from South Africa or Zimbabwe: see Namibia Report Vol. 1 issues 10–11, Oct.–11. 1990, 8Google Scholar.

²¹ The traditional formulation was to vest the executive authority in the head of state even when s/he was a titular head. However, some more recent constitutions have reflected reality by vesting it in the Cabinet, e.g. Vanuatu art. 37(1).

²² Just possibly on premature dissolution of the Assembly: see below.

²³ It seems from the list of members of the Cabinet announced after independence that some are such nominated members (such references to post-independence events are taken from the Reuters reports on the Textline database, unless otherwise stated).

²⁴ The SWAPO Manifesto anticipated that Chiefs and other traditional leaders would have a significant role in local government; in the event there is no specific provision for them at that level.

²⁵ This contrasts with the system in the 1987 draft Constitution which had a system of proportional representation but with eight multi-member constituencies (Sch. I). This draft, for which see Blaustein, op. cit. drawn up under the “transitional government of national unity” which did not include SWAPO, did not receive South African approval and was therfore not adopted: see Keesing's Record of World Events Vol. XXXIV, 36132–3. for Israel, see, e.g., Seliktor, O., “Israel: Electoral Cleavages in a Nation in the Making” in Rose, R., ed.. Electoral Participation, Beverley Hills/London, 1980, 191Google Scholar.

²⁶ India art. 102(1) (a).

²⁷ See below.

²⁸ Hatchard and Slinn, op. cit. 148, evidently intepret this as giving the President a discretion to decline the advice.

²⁹ As in the Constitution of Vanuatu (concerning a largely ceremonial president): art. 26(3).

³⁰ In June 1990 it was reported that the opposition objected to a Bill permitting the President to appoint “regional representatives” pending the creation of new regions on a non-racial basis. The Attorney-General insisted the proposal was constitutional: Namibia Report Vol. 1 issue 5 p. 1Google Scholar.

³¹ See the observations on British practice in Smith, S. A. de and Brazier, R., Constitutional and Administrative Law, 6th ed., London, 1989, 184Google Scholar.

³² The Constitution of Kiribati provides (s. 77(3)) that there shall be a lapse of no longer than 12 months between sessions; India provides for a gap of no longer than six months (art. 85(1)).

³³ As provided in Nigeria: 161–181 days a year (art. 61 of the new Constitution).

³⁴ see Ghai, Y., Law, Government and Politics in Pacific Island States, Suva, 1988Google Scholar.

³⁵ In January 1990 Africa Confidential observed “A one-party state still seems to be a thought in the back of Nujoma's mind” Vol. 31 No. 2, 26 01, 1990, p. 1Google Scholar.

³⁶ V. Rukoro was the only person to sign the Constitution on behalf of the Namibia National Front. This organisation is in fact an alliance of groups, other than SWAPO, which opposed the Turnhalle proposals (see Katjavivi, op. cit. 100); it included SWANU, of which Rukoro is a member.

³⁷ Keesing's, Record of World Events 1989, 36947Google Scholar.

³⁸ The crisis in Kaduna state in Nigeria, where the Governor was from a different party from the majority in the Assembly, which therefore refused to approve any executive member he proposed demonstrated the weakness of the Washington system in such circumstances. For an account of the crisis, which also generated the cases in fn. 12 above, see Nwabueze, B. O., Nigeria's Presidential Constitution 1979–93: The Second Experiment in Constitutional Democracy, London, 1985, chap. 5Google Scholar.

³⁹ Art. 102(2) and Tenth Schedule.

⁴⁰ Sope v. Attorney-General (Unreported, 1988)Google Scholar.

⁴¹ See arts. 202 and 203.

⁴² According to Amnesty International no mainland African state has abolished the death penalty for all offences, one has done so for ordinary crimes, and four do not in practice use the penalty. See When the State Kills, London, 1989Google Scholar.

⁴³ See ICCPR art. 7.

⁴⁴ see Mapp v. Ohio (1961) 367 US 643, and generally Schlesinger, S. R.Exclusionary Injustice, New York, 1977Google Scholar.

⁴⁵ For the last point see ICCPR art. 23(3).

⁴⁶ Whether this is realistic is a different matter; it has been estimated that between 30 and 40% of children under 16 do not currently attend school. There will also be a problem arising from the imbalance of expenditure in the past between schools for white and those for black children, and the reluctance to shift existing resources: Namibia Report Vol. 1 issue 4, 05 1990, p. 4Google Scholar.

⁴⁷ This is framed in terms of the rights of the individual; the 1987 draft Constitution included a similar provision, which gave rights to groups as well as members of groups.

⁴⁸ But this does not amount to a “right to strike” free from non-criminal penalties, and soon after independence proposals on a Labour Code included substantial restrictions on this “right”: Namibia Report Vol. 1 issue 10–11, Oct.–11. 1990, p. 7Google Scholar.

⁴⁹ See generally “Taking Suffering Seriously” in Baxi, U., ed., Law and Poverty: Critical Essays, Bombay, 1988Google Scholar.

⁵⁰ On Independence President Nujoma appealed for foreign investment. On the absence of these from the fundamental rights provisions, see Fourie, F., “The Namibian Constitution and Economic Rights” [1990] South African Journal on Human Rights, 363CrossRefGoogle Scholar.

⁵¹ For example, see Bhagwati J. in Reddy v. State of jammu & Kashmir (1980) 3 SCR 1339, 1356–7Google Scholar, observing that the Directive Principles give “shape to the concept of reasonableness” envisaged in the Constitution and “any action taken by the Government with a view to giving effect to any one or more of the Directive Principles would ordinarily … qualify to be regarded as reasonable” quoted in Rao, P. P., “The Directive Principles of State Policy” (1990) XVII Indian Bar Review 21, 25Google Scholar.

⁵² For example, Malaysia: Lee, H. P., “Emergency Powers in Malaysia” in Trindade and Lee, The Constitution of Malaysia: Further Perspectives and Developments, Singapore, 1986; not to mention South Africa, of courseGoogle Scholar.

⁵³ On the “passivity” of courts in this context, see Conklin, W. E. “The Role of Third World Courts During Alleged Emergencies” in Marasinghe, L. and Conklin, W. E., Essays on Third World Perspectives in Jurisprudence, Singapore, 1984, 69Google Scholar; he cites, inter alia, Bijayananda v. President of India, AIR 1974 Orissa 52Google Scholar; Bhagat Singh v. King-Emperor (1931) LR 58 IA 169Google Scholar, and Ningkan v. Government of Malaysia [1968] 1 M.L.J. 119, [1970] A.C. 379Google Scholar. On the latter, see also Ghai, Y., “The Politics of the Constitution: Another Look at the Ningkan Litigation” in Singh, M. P., ed., Comparative Constitutional Law, Lucknow, 1989Google Scholar.

⁵⁴ Sch. 2 of the Constitution.

⁵⁵ English jurisprudence on martial law is not highly developed. Most common law jurisdictions would probably view it with hostility. Actual English cases tend to date from the 17th century, and more recent ones are appeals from colonies, South Africa or Ireland. The tendency of such cases is to hold that the civil courts have no power, during the period of war, to question the acts of the military authorities (see Ex Parte Marais [1902] AC 109)Google Scholar though they may do so in retrospect, unless an Act of Indemnity is passed (Higgin v. Wills “1921” 2 IR 386)Google Scholar; they do have the power to decide whether a state of war in fact exists (R. (Garde) v. Strickland [1921] 2 IR 317)Google Scholar. It is possible that were the English judiciary to be faced with a situation affecting the liberties of Englishmen, they might be less tender of the prerogatives of the military—though, of course, Liversidge v. Anderson [1942] AC 206Google Scholar is not very encouraging! It seems, in fact, fairly unusual to make specific provision for martial law in constitutions. In India the Constitution seems to contemplate it as a possibility (art. 34), but a High Court has held that martial law is not a constitutional possibility since the 44th amendment (Chinta Subba Rao v. Supreme Commander AIR 1980 AP 172)Google Scholar; this view is also held by Professor Tripathi: “Article 359: The Sole Repository of the Power to Declare Martial Law”, AIR 1976 Jour. 66. The precedent for Namibia would seem to be South Africa. The precise scope of the law in that country seems unclear; while citing the Privy Council cases, the authors of at least one book on the South African constitution refer to other cases which do not give as limited a role to the civil courts (see R v. Bekker 190 (17) SC 340, 357Google Scholar; and Basson & Viljoen South African Constitutional Law, Capetown, 1988)Google Scholar. The 1987 draft Namibian Constitution also provided for martial law—but not so as to exclude the fundamental rights provisions (s. 95).

⁵⁶ See the observations in fn. 53 above.

⁵⁷ See, for example, Saxena, D. R., Ombudsman (Lokpal), New Delhi, 1987Google Scholar; Scott, I., “The Ombudsman, The Executive and Collective Rights in Underdeveloped Countries” (1979) XIII O.J. of Administration 101Google Scholar.

⁵⁸ Essentially similar to an injunction.

⁵⁹ The earlier draft Constitution, s. 87, read “There shall be an Ombudsman operating under the Ombudsman Act” which suggests that such legislation already existed.

⁶⁰ See United Nations Institute for Namibia, Toward a New Legal System for Independent Namibia, (based on the work of Mengo D. F. Sichilongo) Lusaka, 1981, 15Google Scholar.

⁶¹ See “New Law of Namibia” in Action on Namibia for 05 1990, p. 6Google Scholar. The training programme for these students involved the two year Diploma in Development offered at UNIN followed by a course in Law.

⁶² By the retention of “executive-minded judges” to use Hatchard and Slinn's phrase—op. cit. 152.

⁶³ Harmut Ruppel and N. Tjiriange respectively, see Textline 21 03, 1990Google Scholar.

⁶⁴ According to Wiechers, M., Administrative Law, Durban, 1985, 34–5Google Scholar, South African, and therefore Namibian, administrative law is derived from both Roman-Dutch and (to a lesser extent) English law.

⁶⁵ See fn., 41 above.

⁶⁶ Art. 3. The 1987 draft recognized both English and Afrikaans. The SWAPO manifesto also pointed out that no local language, including Afrikaans, is a medium of international communication. See also Katjavivi op. cit., 91.

⁶⁷ I wish to thank Yash Ghai for his comments, as always helpful and stimulating, on an earlier draft.