Interpreting the Interpreters : a Critical Analysis of the Interaction Between Formalism and Transformative Adjudication in Namibian Constitutional Jurisprudence 1990 - 2004
The Security Council of the United Nations adopted Resolution 629 on 16 January 1999, preparing the way for supervised elections and independence for Namibia. A Constituent Assembly elected through a United Nations-supervised election, drafted the Constitution. Namibia became independent from South Africa on 21 March 1990. The dissertation analyses the constitutional judgments of the Supreme and High Courts of Namibia. The interpretive and jurisprudential theories of interpretation of the Namibian superior courts are analyzed. Special attention is given to a post-modern approach known in southern Africa as transformative constitutionalism, developed by American scholar Karl Klare. Klare bases his theory on the proposition that a post-modern constitution cannot be fully understood by using liberal tools or theories of interpretation. University of Cape Town scholar and High Court judge Dennis Davis and his co-worker S Woolman, has a similar approach as Klare and in an enlightening manner refer to the South African constitution as a creole liberal document. The dissertation identifies the Namibian constitution with what Klare calls a post-modern constitution and Davis/Woolman a creole liberal document. While no Namibian court has used the phrases post-modern or creole liberal with reference to the Namibian Constitution, the dissertation identifies several High and Supreme Court judgments where an interpretive model is used that fits the Klare/Davis/Woolman model. The dissertation compares these judgments with other judgments where the superior courts followed the traditional positivist approach. It concludes that both models are part of the Namibian jurisprudential development between independence and 2004. The Supreme Court, the highest court in Namibia, is yet to give an interpretive authority to any of the models. The Namibian legal system follows a strict reliance on the stare decisis rule, which means that the decisions of the Supreme Court are final and binding on government and all the other courts in Namibia. The dissertation identifies several cases where the High Court initially opted for a conservative and/or positivist approach in interpreting rights or freedoms, while the Supreme Court overturned the judgment with a transformative interpretation. The well-known Kauesa case is a good example. The High Court ruled that the freedoms listed in the Constitution are subjected to the laws of Namibia and that dignity is the â highestâ protected right. The Supreme Court rejected the idea that any constitutional right or freedom can be limited by another Namibian law. It also rejected an interpretation seeing rights and freedoms as a pyramid with dignity on top and all the freedoms at the bottom. The Supreme Court opted for a interpretation grounded in the theory of transformative constitutionalism. Freedoms and rights are not organized as a pyramid, but rather a horizontal line of equally important rights and freedoms. The preferential right or freedom needs to be identified in every case depending on the broadest protection of the individual. But, the dissertation points out, there are also cases where the High Court gave a transformative interpretive judgment just to be overturned by a conservative or positivist judgment of the Supreme Court. The well-known Frank case is aq case in point. The High Court found that the word â sexâ as a non-discriminatory category in Artice 10 of the Constitution, also includes sexual orientation. The Supreme Court overturned the judgment by ruling that the word â sexâ only refers to male and female and has nothing to say about sexual orientation. Finally the dissertation concludes that transformative constitutionalism, while not the only interpretive model adhere to by the Namibian superior courts, has been acknowledge as a good model giving the freedoms and rights in the Constitution a broad interpretation, and well-defined protection to Namibians
