National Constitutional provisions – Namibia
The constitution is the fundamental law of the country, reflecting the underlying and unifying values of society. It spells out the basic rights of each person; it serves as a framework for all other laws and policies, and cannot be easily changed. However, it can be changed and updated through a democratic process, and it is important to keep it alive, by popularising and using it, and by campaigning for its reform or amendment if necessary. Below we have picked out what we see as some of the most relevant articles, but please be encouraged to seek and read your constitution in its entirety.
The state is the central actor in any claim to the right to education: it is the prime duty-bearer and the prime implementer; it is the guarantor; and it is the state´s signature vis-à-vis the international norms and standards which binds it to respect, protect and fulfil the right to education. The state must therefore be judged or challenged on its central text on the right to education, whether this be the constitution, the laws or the policies.
The Constitution of Namibia Adopted 9 February 1990
(2) Nothing contained in this Constitution shall prohibit the use of any other language as a medium of instruction in private schools or in schools financed or subsidized by the State, subject to compliance with such requirements as may be imposed by law, to ensure proficiency in the official language, or for pedagogic reasons.
(2) Children are entitled to be protected from economic exploitation and shall not be employed or required to perform work that is likely to be hazardous or to interfere with their education, (…).
(1) All persons shall have the right to education.
(2) Primary education shall be compulsory and the State shall provide reasonable facilities to render effective this right for every resident within Namibia, by establishing and maintaining state schools at which primary education will be provided free of charge.
(3) Children shall not be allowed to leave school until they have completed their primary education or have attained the age of sixteen (16) years, whichever is the sooner, save in so far as this may be authorized by Act of Parliament on grounds of health or other considerations pertaining to the public interest.
(4) All persons shall have the right, at their own expense, to establish and to maintain private schools, or colleges or other institutions of tertiary education; provided that:
a) such schools, colleges or institutions of tertiary education are registered with a Government department in accordance with any law authorizing and regulating such registration;
b) the standards maintained by such schools, colleges or institutions of tertiary education are not inferior to the standards maintained in comparable schools, colleges or institutions of tertiary education funded by the State;
c) no restrictions of whatever nature are imposed with respect to the admission of pupils based on race, colour or creed;
d) no restrictions of whatever nature are imposed with respect to the recruitment of staff based on race or colour.
(1) All persons shall be equal before the law.
(2) No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status.
Se chapter II (very extensive).
The State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies aimed at the following:
a) enactment of legislation to ensure equality of opportunity for women, to enable them to participate fully in all spheres of Namibian society; in particular, the Government shall ensure the implementation of the principle of non-discrimination in remuneration of men and women; further, the Government shall seek, through appropriate legislation, to provide maternity and related benefits for women;
b) enactment of legislation to ensure that the health and strength of the workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age and strength; c) active encouragement of the formation of independent trade unions to protect workers' rights and interests, and to promote sound labour relations and fair employment practices;[…]
(1) Children shall have the right from birth to a name, the right to acquire a nationality and, subject to legislation enacted in the best interests of children, as far as possible the right to know and be cared for by their parents.
(2) Children are entitled to be protected from economic exploitation and shall not be employed in or required to perform work that is likely to be hazardous or to interfere with their education, or to be harmful to their health or physical, mental, spiritual, moral, or social development. For the purposes of this paragraph children shall be under the age of sixteen (16) years.
(3) No children under the age of fourteen (14) years shall be employed to work in any factory or mine, save under conditions and circumstances regulated by Act of Parliament. Nothing in this paragraph shall be construed as derogating in any way from Paragraph (2).
(4) Any arrangement or scheme employed on any farm or other undertaking, the object or effect of which is to compel the minor children of an employee to work for or in the interest of the employer of such employee, shall for the purposes of Article 9 be deemed to constitute an arrangement or scheme to compel the performance of forced labour .
(5) No law authorising preventive detention shall permit
children under the age of sixteen (16) years to be detained.
(1) The official language of Namibia shall be English.
(2) Nothing contained in this Constitution shall prohibit the use of any other language as a medium of instruction in private schools or in schools financed or subsidised by the State, subject to compliance with such requirements as may be imposed by law, to ensure proficiency in the official language, or for pedagogic reasons.
(3) Nothing contained in Paragraph (1) shall preclude legislation by Parliament which permits the use of a language other than English for legislative, administrative and judicial purposes in regions or areas where such other language or languages are spoken by a substantial component of the population.
(1) All persons shall have the right to:
b) freedom of thought, conscience and belief, which shall include academic freedom in institutions of higher learning;
c) freedom to practice any religion and to manifest such practice;
HUMAN RIGHTS MECHANISMS
Article 89 (1) There shall be an Ombudsman, who shall have the powers and functions set out in this Constitution.
(2) The Ombudsman shall be independent and subject only to this Constitution and the law.
(3) No member of the Cabinet or the Legislature or any other person shall interfere with the Ombudsman in the exercise of his or her functions and all organs of the State shall accord such assistance as may be needed for the protection of the independence, dignity and effectiveness of the Ombudsman.
(4) The Ombudsman shall either be a Judge of Namibia, or a
person possessing the legal qualifications which would entitle him or her to practice in all the Courts of Namibia
(1) Save in so far as it may be authorised to do so by this Constitution, Parliament or any subordinate legislative authority shall not make any law, and the Executive and the agencies of Government shall not take any action which abolishes or abridges the fundamental rights and freedoms conferred by this chapter, and any law or action in contravention thereof shall to the extent of the contravention be invalid; provided that:
a) a competent Court, instead of declaring such law or action to be invalid, shall have the power and the discretion in an appropriate case to allow Parliament, any subordinate legislative authority, or the Executive and the agencies of Government, as the case may be, to correct any defect in the impugned law or action within a specified period, subject to such conditions as may be specified by it. In such event and until such correction, or until the expiry of the time limit set by the Court, whichever be the shorter, such impugned law or action shall be deemed to be valid;
b) any law which was in force immediately before the date of Independence shall remain in force until amended, repealed or declared unconstitutional, it may either set aside the law, or allow Parliament to correct any defect in such law, in which event the provisions of Paragraph (a) shall apply.
(2) Aggrieved persons who claim that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled to approach a competent Court to enforce or protect such a right or freedom, and may approach the Ombudsman to provide them with such legal assistance or advice as they require, and the Ombudsman shall have the discretion in response thereto to provide such legal or other assistance as he or she may consider expedient.
(3) Subject to the provisions of this Constitution, the Court referred to in Paragraph (2) shall have the power to make all such orders as shall be necessary and appropriate to secure such
applicants the enjoyment of the rights of freedoms conferred on them under the provisions of this Constitution, should the Court come to the conclusion that such rights or freedoms have been unlawfully denied or violated, or that grounds exist for the protection of such rights or freedoms by interdict.
(4) The power of the Court shall include the power to award monetary compensation in respect of any damage suffered by the aggrieved persons in consequence of such unlawful denial or violation of their fundamental rights and freedoms, where it considers such an award to be appropriate in the circumstances of particular cases
The fundamental rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Namibia, and shall be enforceable by the Courts in the manner hereinafter prescribed.