Constitutional history of Namibia

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The constitutional history of Namibia describes that part of the legal history of Namibia that deals with the historical development of substantive constitutional law on the territory of today's Namibia. This genesis was a multi-stage process up to the state independence as the Republic of Namibia , which took place after the German colonial administration which collapsed in the First World War , on the basis of subsequent international legal determinations and later interventions, a step-by-step policy of taking over South Africa during the apartheid period and the Namibian liberation struggle .

Since it was taken over by South African administration, the name South-West Africa or South West Africa ( SWA or SWA ) in English or Afrikaans Suidwes-Afrika was officially and exclusively used for the territory of today's Namibia , until 1968 a UN resolution Namibia introduced as the country's future self-name. During the subsequent transition period up to the founding of the Republic of Namibia, it was internationally customary to designate the area still under South African administration as South West Africa / Namibia .

From the German colony to the mandate area of ​​the League of Nations since 1915

In February 1915, South African troops began to occupy parts of the area of German South West Africa . General Louis Botha reached Windhoek via Karibib on May 20, 1915. German rule over the colony's territory ended on July 9, 1915 with the surrender of their military forces at Khorab not far from Tsumeb . The military governor of the South African occupation forces General Percival Scott Beves and a chief civil secretary acted as provisional administrative representatives . Both functions were abrogated by a proclamation by the Union Minister of Defense on October 28, 1915. With this ordinance, all of their powers were transferred to the function of a future administrator. The same minister laid down the tasks of the administrator more precisely in a further proclamation published on November 27, 1918. Edmond Howard Lacam Gorges took on this task .

As a result of the Versailles Treaty of June 28, 1919, South West Africa became a protectorate of the Union of South Africa . The South African treaty of Peace and South West Africa Mandate Act 49 of 1919 established the right to a mandate in the former “protected area” of German South West Africa and determined the structure of the future administration in this area. The Governor-General of South Africa was declared the supreme ruling authority over South-West Africa , who exercised legislative and executive power over it. In this function he delegated administrative responsibility to a future administrator of South West Africa by means of the South Africa Proclamation 1 of January 2, 1921 . The administrator was assigned an advisory council, the Advisory Council on the basis of the SWA Proclamation 1 of 3 January 1921 (amended by Proclamation 51 of 1921 ).

With the Administration of Justice Proclamation 21 of 1919 , South West Africa received a legal system based on Roman-Dutch law . In 1921 the government in Pretoria discussed a proposal that the area of ​​South West Africa should be administered as the fifth province.

The De Wet Commission was appointed by the South African government in 1920 . She had been given the task of making proposals for future forms of administration in South West Africa. According to a proposal, an Advisory Council of six members should be set up to manage the area . A provincial council also came into the discussion, which should send a delegation of representatives to the Union parliament, as the South African provinces have already done. In 1922, the commission proposed with a resolution that all residents of the mandate area of ​​European descent should receive Union nationality if they so wished, but rejected the proposal to make South West Africa the fifth province in the Union.

Legislative Assembly 1925

In 1925 the South West Africa Constitution Act, No. 42 of 1925 passed by the Parliament of the Union of South Africa. With this law, the legal basis for a legislative assembly was created (Legislative Assembly) and the Cabinet (Executive Committee) in South West Africa. This consisted of 18 members, 12 of whom were elected and 6 were appointed to this office. Its responsibilities included many tasks, with the exception of those that fell within the realm of the Union government ( Pretoria ). These included national defense, the railway system, the ports, the post and telegraph system, court affairs, as well as immigration issues, customs and consumption taxes, banks and currency, as well as the "native affairs".

As a result of the 1926 elections for the South West African Legislative Assembly (SWALA), the population of German origin gained a slim majority. That was the starting point for rivalries between the Germans and other inhabitants of South West Africa of European descent. The organization Deutscher Bund began to campaign for a return to Germany. At the beginning of the 1930s, National Socialists came to South West Africa to promote the politics of the NSDAP .

After the 1934 SWALA election , the United National South West Party gained a two-thirds majority. She immediately sent a delegation to the South African Prime Minister to encourage South West Africa to join the South African Union as the fifth province . In 1945 the United National South West Party repeated its call for South West Africa to join the Union.

Incorporation to South Africa since 1946

The targeted incorporation of South West Africa into the South African Union began in 1946 through preparatory steps. But as early as 1945, at the UN conference in San Francisco , the South African Union declared its claim to the area of ​​South West Africa, as it had ruled and administered this territory as an integral part of its territory for 25 years and because the Union guaranteed it its own legislative assembly have. The South African representatives asked the UN to modify the mandate so that South West Africa could become a full part of the Union in the future. For this purpose a survey was carried out among part of the population of South West Africa in the spring of 1946.

On October 4, 1946, before the UN Mandate Commission, Prime Minister Smuts repeated South Africa's claim to the integration of South West Africa into the Union. The South African position assumed that incorporation was now only a formal process, since the experimental phase was long over. South West Africa's population is fully aware of the government's plans. The expectations of the population of European descent on the issue of inclusion would be well known through the press, through statements by leading figures and through the South West African Legislative Assembly . The wishes of the non-European population had been determined through consultations with tribal groups. 208,850 people spoke out as supporters and 33,520 as opponents of the question of integration. 56,790 people in this group were not interviewed because they lived scattered on farms or as nomads .

The final treatment of the South African proposal in the UN Mandate Commission took place in the meeting of November 15, 1946. The resulting clear opinion signaled that there was little hope that the South African proposals would be fulfilled in the UN General Assembly . India and the Soviet Union had taken the lead in this. The Indian delegation felt that South Africa's proposals were highly backward-looking. India also expressed the view that the South African crackdown was a breach of international law and a harmful precedent. Finally, on December 16, 1946, a resolution initiated by the United States , India and Denmark was passed, in which the plans to incorporate South West Africa were resolutely rejected. At the same time, the South African Union was called upon to continue territorial administration in the spirit of the previous mandate regulations and to place the mandate area under a direct international system of supervision in future. South Africa should submit suitable proposals to the UN General Assembly.

In March 1947 a South African parliamentary group asked Prime Minister Smuts to promote the integration of South West Africa. Smuts declined and refused to suggest further annexation. At the meeting of the UN Mandate Commission on October 16, 1947, India continued to press consistently for South West Africa to be placed under international supervision and again demanded that South Africa submit appropriate proposals for an agreement at the next UN General Assembly. The General Assembly confirmed this note. The South African UN delegation responded to this request with the willingness of its country to submit further annual reports on South West Africa, but declined a supervisory responsibility of the UN. In 1948, Pretoria sent the UN General Assembly in Paris, as agreed, a report on the mandate territory. The South West African Legislative Assembly reiterated its interest in parliamentary representation in the House of Assembly and the Senate of South Africa.

With the parliamentary elections of 1948 in South Africa, the political balance of power on the Cape changed fundamentally.

The constitutional situation for South West Africa, previously defined by the SWA Constitutional Act of 1925, has now been substantially corrected on the basis of the South West Africa Affairs Amendment Act 23 of 1949 . This gave South West Africa the right to direct representation in the South African parliamentary system. The South West African Legislative Assembly , however, retained its continued legislative jurisdiction over matters that were not reserved to the Union of South Africa. The South African parliament now gained full legislative competence over South West Africa. The South African Governor-General lost his legislative authority over the territory, as this was now transferred to the Administrator of South West Africa , but was subject to the approval of the South African head of state (Governor-General) . With the South West Africa Affairs Amendment Act 55 of 1951 , this responsibility was revised, as a result of which the Governor-General was again able to establish legal norms for South West Africa by means of a proclamation in the Government Gazette .

The advancing development of the apartheid doctrine was also reflected in the South West Africa Native Affairs Administration Act 56 of 1954 , with which responsibility for native affairs was transferred to the South African Minister of Native Affairs (later Minister of Bantu Administration and Development ).

However, the responsibility of the SWA administration for the groups of Basters and Coloreds remained unaffected. The Department of Colored Affairs (later the South African Department of Colored, Rehoboth and Nama Relations ) later took on this responsibility as part of the state's racial segregation policy.

Around 1945, 60 to 70 percent of the non-European population in South West Africa lived in areas outside the police zone. That was 129,545 people in Ovamboland, 20,537 people in Okavango, 18,640 people in Caprivi and 5,822 people in Kaokoveld. In terms of administrative policy, they lived under a form of indirect rule .

In December 1950, the United Nations Trusteeship Committee recommended the UN General Assembly to set up a Commission for South Africa to collect investigative reports and petitions from the territory of South West Africa. This proposal did not receive sufficient support and instead a 5-nation committee was formed which conducted a dialogue with South Africa on how the International Court of Justice could control the situation in the mandate area. On May 16, 1951, the South African Prime Minister Malan informed the South African parliament that his government was ready to hold talks with UN representatives without abandoning its own principles. The aim of South Africa in such talks is, however, that South West Africa and its affairs should be taken out of UN competence and that they should be dealt with individually in accordance with the terms of the mandate. Daniel Malan emphasized to the members of parliament that the previous practice of mandate area administration was subject to South African government policy.

In 1953 the UN Committee on South West Africa was finally established .

With the constitution of the new South African Senate (Senate Act, No. 53 of 1955) at the beginning of 1955, people elected and appointed by the Governor-General-in-Council came together for this 48-member body. The representatives of South West Africa were two appointed members (the Union had 8 seats here) and two elected senators (each South African province sent 8 members) from the Legislative Assembly of South West Africa.

Incorporation of South West Africa into the Republic of South Africa since 1968

Southwest Africa postage stamps, 1973

The effectiveness of the previous constitutional law of 1925 ended in 1968. In its place came the South West Africa Constitution Act 39 of 1968 . This expanded the legislative power of the Republic of South Africa to South West Africa and brought about the incorporation of the mandate area. The administrator continued to perform his duties, but was under the control of the President of South Africa, who under this law had full administrative responsibility over South West Africa as "an integral part of the republic". With this law, apartheid policy formally transferred the self-government policy of the homelands, previously only practiced in South Africa, to traditionally settled tribal areas in neighboring South West Africa.

Through the Development of Self-Government for Native Nations in South West Africa Act 54 of 1968 , the South African power introduced the system of native nations (German: ' native nations '). The six areas of Damaraland , Hereroland , Kaokoland , Okavangoland , Eastern Caprivi and Ovamboland have now been declared habitats of a native nation according to the proposals of the Odendaal Plan . In these areas, the authorities established Legislative Councils , so-called legislative assemblies, in the South West African homelands to enforce this law .

In each of these areas an Executive Council (German roughly: Executive Council) was provided, which carried out the business of government . Finally, the South West Africa Affairs Act 25 of 1969 granted the Republic of South Africa even greater legal and administrative control over South West Africa. These regulations served to deepen the apartheid system in all important questions of life in South West Africa. The SWA administrative authorities were able to adopt any ordinance without spending a previous rechtsaufsichtliche obtain approval from the South African president.

At the suggestion of African and Asian states in the UN General Assembly , South West Africa was renamed . At the meeting that took place on June 12, 1968, the UN representatives passed the resolution (Resolution 2372 (XXII)) that South West Africa should in future be referred to as Namibia . The vote on this resulted in 96 votes in favor against 2 against (South Africa, Portugal ) with 18 abstentions. The abstentions came in particular from leading Western and Commonwealth countries and from Malawi . Six countries, including Lesotho and Botswana , stayed away from the vote. The head of the British UN delegation, Lord Caradon , made it clear that South Africa had forfeited its right to administer South West Africa .

Partial autonomy as a preliminary stage to state independence since 1977

A legal opinion by the International Court of Justice in The Hague in 1971 resulted in a change in the South African government's view of the situation in South West Africa / Namibia . As a reaction to this, the South West Africa Constitution Amendment Act 95 of 1977 came into force, which authorized the South African President "with a view to the eventual achievement of independence" to draw up legal regulations that would allow such constitutional development.

As a result of this law, there were changes in the parliamentary integration of South West Africa / Namibia . The RSA Proclamation R249 of 28 September 1977 abolished the parliamentary seats for South West Africa / Namibia in the South African parliament. At the same time, on the basis of the RSA Proclamation 180 of 19 August 1977 issued by the President, South Africa established an administrative office for the function of Administrator-General for SWA / Namibia . The RSA Proclamation 181 of August 19, 1977 gave this authority the power to enact legal provisions for South West Africa / Namibia by proclamation in the Official Gazette of SWA , even if this concerned repeal or changes to legal norms of South African legislative organs that apply to South West Africa / Namibia related. In this way, between 1977 and 1980 competences under numerous legal provisions were transferred from South Africa to the SWA administration.

In connection with this externally initiated development, citizens of South West Africa / Namibia tried to influence the future of the country with the Gymnasium Constitutional Conference in 1975 and to work towards the country's independence with their own draft constitution. Contrary to the international rejection of his approach and the UN positions, South Africa pushed through elections in South West Africa / Namibia . The Constituent Assembly and Election Proclamation, 1978 ( AG 63/1978) served for this purpose . SWAPO and other political groups called for a boycott of these elections.

At its meeting on September 29, 1978, the UN Security Council passed resolution 435 , with which it called on South Africa to place the administration of South West Africa / Namibia solely in the competence of the people of the country. Since then, a process has begun that resulted in South Africa's willingness to take the path to correct its policies in favor of future Namibian independence.

In 1979, based on the National Assembly Proclamation, in 1979 (AG 21/1979), the interim Constituent Assembly (German: 'Constituent Assembly') was transformed into the National Assembly (German: National Assembly) with legal competence. A Council of Ministers was established on the basis of the Council of Ministers Proclamation, 1980 (AG 19/1980) .

In 1980 the Representative Authorities Proclamation, 1980 (AG 8/1980) prepared the basis for a new level of subordinate government agencies for the ethnic splitting of the population into eleven groups. The authorities gave the newly created administrative units the right to control several areas of responsibility, including municipal land rights, education, health care and social welfare.

In April 1977, an opposition alliance of black representatives against the SWAPO was formed, which consisted of several groups and appeared under the name Namibia National Front . Those were:

  • South West African National Union (mostly support from the Herero )
  • Voice of the People (mostly Damara and Nama )
  • a group of the Namibia African People's Democratic Organization (Damara)

and associated tribal representatives came from:

  • Damara Council,
  • Damara Tribal Executive and
  • Groups of the Mbandero tribe among the Herero and the Bondelswart tribe of the Nama.

In April 1977 Western representatives of the UN Security Council met with Prime Minister Vorster in Cape Town to discuss the implementation of UN Security Resolution 385. The questions discussed included the demands for free elections in Namibia under the supervision of the UN, withdrawal of the political and military presence of South Africa, the release of political prisoners and their free return from political exile, the abolition of discriminatory and repressive laws and a plan for a transitional government the proposals of the gym conference . All members of the Gym Constitutional Conference were involved in these discussions .

Transitional government with steps towards independence in 1985

In 1985, a multi-party conference resulted in the proposal for a Transitional Government of National Unity (German: ' Transitional Government of National Unity '). The SWAPO and other organizations opposed this request. However, following the proposal, the RSA Proclamation R101 of 1985 created a legislative and an executive authority , supplemented by the Constitutional Council (' Constitutional Council ') on the basis of the Constitutional Council Act 8 of 1985 . The new form of government was incorporated into a Bill of Fundamental Rights and Objectives .

The implementation of the UN Security Council resolution of 1978 began on April 1, 1989. This path was opened because South Africa signed a four-point protocol with Angola and Cuba in Brazzaville in December 1988 , which included the withdrawal of South African troops from Angola and South West Africa / Namibia and the withdrawal of Cuban troops from Angola.

With regard to UN Security Council Resolution 435 and its fulfillment, the First Law Amendment (Abolition of Discriminatory or Restrictive Laws for purposes of Free and Fair Election) Proclamation (AG 14/1989) and the Second Law Amendment (Abolition of Discriminatory or Restrictive Laws for purposes of Free and Fair Election) Proclamation (AG 25/1989) in force. This repealed older legislation that would have prevented free and fair elections.

In the period that followed, there were local armed conflicts between SADF and SWAPO, but also the murder of Anton Lubowski . The general administrator of Namibia Louis Pienaar assured that the South West African Police had been instructed to arrest the perpetrator.

State sovereignty 1990

Namibia officially became independent on March 21, 1990 as a result of the parliamentary elections in 1989 . The constituent assembly became the first legislative assembly. In February, the then SWAPO President Sam Nujoma was elected as the country's first President. On the basis of Resolution 652 of the UN Security Council of April 17, 1990, Namibia became a member of the United Nations .

Namibia's struggle for independence has claimed many lives since November 1, 1988, including 1,087 Namibian civilians, 715 people from the security forces involved and 11,291 SWAPO insurgents and Angolan soldiers .

See also

literature

Web links

Individual evidence

  1. ^ André du Pisani : SWA / Namibia . Johannesburg 1986. pp. 47-48.
  2. a b c d e f Legal Assistance Center: NAMLEX, Index of the Laws of Namibia . Windhoek 2018, online as PDF at www.lac.org.na (English)
  3. ^ GMO Bulkeley: The Mandated Territory of South-West Africa. In: Ellen Hellmann , Leah Abrahams (Ed.): Handbook on Race Relations in South Africa . Oxford University Press, Cape Town / London / New York 1949, p. 748.
  4. ^ Charles Dundas: South-West Africa. The factual background . South African Institute of International Affairs, Johannesburg 1946, pp. 12–13 (online at www.africaportal.org, PDF document, pp. 15–16; English).
  5. Victor L. Tonchi, William A. Lindeke, John J. Grotpeter: Historical dictionary of Namibia (= African historical dictionaries no 57th.). Metuchen 2012, ISBN 978-0-8108-5398-0 (English).
  6. ^ A b G. VO Bulkeley: The Mandated Territory of South-West Africa. In: Ellen Hellmann, Leah Abrahams (Ed.): Handbook on Race Relations in South Africa . Oxford University Press, Cape Town / London / New York 1949, pp. 748–749.
  7. ^ GMO Bulkeley: The Mandated Territory of South-West Africa. In: Ellen Hellmann, Leah Abrahams (Ed.): Handbook on Race Relations in South Africa . Oxford University Press, Cape Town / London / New York 1949, pp. 755–756.
  8. ^ Pisani: SWA / Namibia. 1985, pp. 108-119
  9. ^ GMO Bulkeley: The Mandated Territory of South-West Africa. In: Ellen Hellmann, Leah Abrahams (Ed.): Handbook on Race Relations in South Africa . Oxford University Press, Cape Town / London / New York 1949, pp. 756–758.
  10. ^ National Library of Australia: South Africa. Department of Colored Relations and Rehoboth Affairs . on www.trove.nla.gov.au (English)
  11. ^ GMO Bulkeley: The Mandated Territory of South-West Africa. In: Ellen Hellmann, Leah Abrahams (Ed.): Handbook on Race Relations in South Africa . Oxford University Press, Cape Town / London / New York 1949, p. 749.
  12. ^ SAIRR : A Survey of Race Relations in South Africa 1950–1951 . Johannesburg 1951, p. 17.
  13. ^ UNHCR: Establishment of a Good Offices Committee on South West Africa . at www.refworld.org (English)
  14. ^ SAIRR: A Survey of Race Relations in South Africa 1954–1955 . Johannesburg 1955, pp. 23-24.
  15. ^ SAIRR: A Survey of Race Relations in South Africa 1968 . Johannesburg 1969, p. 307.
  16. ^ SAIRR: A Survey of Race Relations in South Africa 1968 . Johannesburg 1969, p. 304.
  17. ^ Establishment of Office of Administrator-General for the Territory of South-West Africa Proclamation, 1977 (Proclamation No. 180 of 1977 of the State President)
  18. Empowering of the Administrator-General for the Territory of South-West Africa to make Laws Proclamation, 1977 (Proclamation No. 181 of 1977 of the State President)
  19. ^ SAIRR: A Survey of Race Relations in South Africa 1977 . Johannesburg 1978, p. 595.
  20. ^ SAIRR: A Survey of Race Relations in South Africa 1977 . Johannesburg 1978, p. 596.
  21. ^ SAIRR: Race Relations Survey 1989/90 . Johannesburg 1990, p. 220.
  22. ^ United Nations : Application of the Republic of Namibia. online at www.undocs.org (PDF, English)
  23. ^ SAIRR: Race Relations Survey 1989/90 . Johannesburg 1990, p. 222.