With Constitution Day just behind us, it is
perhaps time that we examine the features of the document that not only defines
our country and its government, but has come to define us as the individuals we
are, and as the nation we’ve become.
Our constitution was written in a time of
strife, with the liberation struggle still fresh in the minds of the
Constituent Assembly – and yet it was written in a language of peace. Starting
with a blanket amnesty for both sides of the struggle to allow all exiles to
return home, and thus create a representative Constituent Assembly, the
Constitution was constructed as a forward looking document. One that would
encourage unity and nation-building, rather than recrimination and division.
Yet to see what makes it special, it is
necessary to look back, and see where it’s basic principles originated. After
all, the constitution claims we have “the
right of the individual to life, liberty and the pursuit of happiness,
regardless of race, colour, ethnic origin, sex, religion, creed or social or
economic status;” and that “said
rights are most effectively maintained and protected in a democratic society,
where the government is responsible to freely elected representatives of the
people, operating under a sovereign constitution and a free and independent
judiciary.” These ideas were not quite as prevalent even just a 100 years
ago.
Democracy, in fact, started way back in 508
BCE, in Athens, Greece. But it was a bit different from our democracy today. As
a direct democracy, all eligible Athenian citizens were members of the
legislative assembly that made laws. Strangely, judicial and executive
functions of the government were allocated to citizens by lottery. And, of course, eligible citizens did not
include women, slaves, foreigners, anyone who did not own land and of course,
men under 20. Cleisthenes codified their laws into the first democratic
constitution.
It was in the subsequent Roman Republic
that that our form of representative democracy first appeared. With
representatives from the Patricians and the Plebeians becoming Senators and
serving in the Senate, the first forms of representative democracy emerged. In
450 BCE the Romans codified their laws into a constitution known as the Twelve
Tables, and formalized Roman law, which still influences our judicial system to
this day.
Democracy soldiered on, throughout the
ages, constantly being usurped by those who would wield absolute power over a
nation. But in 1776, a group of colonies declared independence from the British
Empire, and to prevent the peoples of these colonies from losing their hard
fought power to a ruler again, they enacted the first modern constitution in
1789. It is from the United States’ Declaration of Independence that our
constitution referenced the rights of “Life,
Liberty and the pursuit of Happiness.”
But still, not everyone could vote. Universal
male suffrage, whereby all adult males could vote, came only a short while
after the US constitution was ratified, but from a radically different place.
The First French Republic, established in 1792, was the first example, though
tragically short lived – replaced by Napoleon’s French Empire. His empire’s
Napoleonic Code also influenced laws worldwide. Only in 1893, barely 123 years
ago, did universal suffrage (men as well as women) saunter onto the world
stage, when it was first implemented by New Zealand. It spread, slowly but
surely, to other democracies, with the last to grant suffrage to female voters
being Switzerland, in 1990.
But as democracy took hold over the world,
subjects under absolute rulers became restless. For example, the Parliament of
the United Kingdom, from which our own parliament derives its name, was
originally established as an advisory body to a king with absolute power. But
over the years, it had expanded and restricted the king’s power – most notably
first with the Magna Carta of 1215 CE. But after the English Civil War, and the
restoration of the monarchy after the Glorious Revolution of 1688, Parliament
increasingly became the method whereby the legitimacy of a government of the
king was determined.
Throughout the 18th and 19th
century, the power of the king was gradually diminished, and parliament emerged
as the ultimate authority. And as the British Empire expanded across the world,
the concept of representative democracy was spread as well. But since this form
of democracy originated from an absolute rule regime, it had inherited a flaw
from that regime as well. The concept of parliamentary sovereignty.
In essence, this gives parliament absolute
authority over all of government. Parliament can make laws concerning
everything, and cannot bind future parliaments by its laws. No judge can
overrule acts of parliament. This means that the current parliament of the
United Kingdom can rescind any right or protection granted to its citizens by
previous parliaments. I trust the danger of this is clear.
When the time therefore came for the
Constituent Assembly to construct the basis of what would form our nation, they
already had very clear examples to emulate and pitfalls to avoid. Instead of a
sovereign parliament, we have a government split into executive, legislative
and executive branches. Universal suffrage was implemented from day one. And
while our constitution can be amended so as to enable it to remain a living
document like the United States Constitution, we elected to entrench the basic
rights of our citizens in Article 131, which states: “No repeal or amendment of any of the provisions of Chapter 3 hereof,
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.”
I highly recommend that every citizen at
least once avails him or herself of the opportunity to read our constitution.
If you need more background, there is no more informative work that details its
construction than “State Formation in
Namibia: Promoting Democracy and Good Governance” by His Excellency Dr Hage
Geingob – his doctoral thesis.
No structure built can stand for long if it
does not have a solid foundation. The same is true for a nation. And as
structural engineers will tell you, no one can extend and built atop an
existing structure without first examining its foundations to see if it is
strong enough to support it. The same is true of a nation. That is what
Constitution Day is all about. If we want to continue to build a strong and
proud nation, we need to know the foundations it is built upon, or we shall
surely fail.
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