To Constitute A Nation

Originally published in the Informanté newspaper on Thursday, 11 February, 2016.

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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