SAJAP: Facilitating Justice in Namibia – Part II

Rachel Clement 11th December 2014

Earlier this month we featured a reflection from Claire Palmer on her experiences working as an OPBP Intern at the Supreme Court of Namibia as part of the SAJAP programme.  Today, Rachel Clement reflects on her experience

I have had the opportunity to work on some exciting projects through my involvement with OPBP, but none more so than spending nine weeks clerking in the Supreme Court of Namibia. The opportunity to work in the court, situated in the capital city, Windhoek, came as part of the Southern African Judicial Assistance Programme: a joint enterprise between OPBP, and an equivalent organisation at the University of Cape Town in South Africa.  The SAJAP Programme facilitates the placement of Oxford and UCT graduate students in the apex courts of various Southern African jurisdictions. It was a privilege to be involved in the first year of the SAJAP programme, and to visit Namibia; a country I came to love.

The Supreme Court was formed in 1990, when Namibia (previously, South West Africa) obtained its independence from South Africa. Unlike its South African counterpart, the Namibian Supreme Court hears both constitutional and non-constitutional matters.  The three permanent members of the court, along with ad hoc judges from other Southern African jurisdictions, take on an enormous workload.  As such, despite the fact that the court was not in session, my co-intern (a law student from UCT) and I went busily about our business, providing legal research assistance to the Honourable Chief Justice, Peter Shivute, the two other permanent judges, the Hon. Judge Maritz and Hon. Judge Mainga, and Judge Mutambanengwe, an ad-hoc judge from Zimbabwe. We provided research on a vast range of legal issues, preparing memoranda for the judges.  Much of my research centred around procedural and constitutional questions.

The Namibian Constitution is reflective of the long and difficult history of the state, and is a statement of commitment to securing and maintaining a peaceful and prosperous future.  The Court takes its role as an independent and impartial body, tasked with securing and defending the Constitution, with the utmost seriousness. As such, a published copy of the constitution, written in both English and Afrikaans, was thrust into my hands on my first day in court.

In reaction to the imposition of the apartheid regime and the armed liberation struggle that brought about independence, the Constitution is progressive and transformative, in a similar fashion to the South African Constitution with which I was more familiar. Whilst there is not the same focus on socio-economic rights in the Namibian Constitution, life, liberty, equality and dignity are placed at the heart of the bill of rights. The most striking clause in the Constitution is Article 131, which provides that:

No repeal or amendment of any of the provisions of [the bill of rights], in so far as such repeal or amendment diminishes or detracts from the fundamental rights and freedoms contained and defined in that Chapter, shall be permissible under this Constitution, and no such purported repeal or amendment shall be valid or have any force or effect

Namibia is not a state without its challenges; in particular the prevalence of so called “passion killings” and rampant gender based violence has led to the former (and first) President of Namibia, Dr Sam Nujoma, publicly advocating the beheading of perpetrators. In such a context, it is perhaps not an exaggeration to see Art 131 as a safeguard against the return of the death penalty, which is prohibited in terms of Art 6 of the Constitution.

The opportunity to work in Namibia was a professional and personal highlight, which afforded me a unique opportunity to clerk in a court and contribute to exciting constitutional developments in a jurisdiction with an emerging body of human rights jurisprudence. It was also fascinating to see how the Namibian legal culture has developed, and still is developing, a distinct national identity; the links between Namibian and South African law are strong, given their history, but to overplay the similarities would be to ignore that which makes Namibia a unique country, and firmly its own jurisdiction.  A second Oxford student is currently in Windhoek, working at the Court, and I certainly hope to see the SAJAP programme linking Windhoek, Oxford and UCT in this worthwhile, and mutually beneficial endeavour, for years to come.

Author profile

Rachel Clement read for the BA (Jurisprudence) and BCL at Wadham College, Oxford. She is now a DPhil student at Wadham, researching the effects of deception and non-disclosure on consent to sexual activity.

Citations

Rachel Clement “SAJAP: Facilitating Justice in Namibia – Part II” (OxHRH Blog, 11 December 2014 ), http://humanrights.dev3.oneltd.eu/?p=14831 [Date of Access].

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