Kudus caught in the headlights
The Omusati case in which yet another local authority illegally fired officials without due process and the disappointing announcement by Minister Tweya declaring the need for new media restrictions, beg some serious questions.
Why is it that decision-makers on ALL levels seem to forget sometimes that Namibia has a world class Constitution and that this country is not a dictatorship or monarchy ruled by an omnipotent Cabinet, city/town council, and boards of directors, tribal chiefs or church leaders?
Why do we act like a startled kudu caught in oncoming headlights when something happens that decision-makers don’t like and they forget that we have laws in place that need only be applied evenly and fairly to find solutions?
What happened to ‘look before you leap?’ Why do we consistently take actions and make sweeping statements without first considering the law of the land as an action guide?
If the public knew how many cases over the years, the government has either lost or ‘not defended’ in the courts and how many pieces of legislation have been struck down as unconstitutional or how many arrests and detentions have been repudiated, they would be shocked.
Hundreds of millions, I dare say billions, may have been paid out over the years (in out-of-court settlements, back pay, legal fees, judgements, and penalties), precisely because our decision-makers, enforcement agencies and officials at all levels, take actions without research or professional consideration and in some cases, they do so in complete ignorance of the law or the limits of their authority.
How many times do we read that people are reinstated to their posts for being fired illegally? How many tens of millions are paid to people ‘suspended with pay’ for supposedly doing things that are never proven in courts or hearings?
How many laws get passed that overlap existing laws or are not properly legally drafted and contain ambiguous language? One look at those people from the horrendously long Caprivi treason trial who were acquitted after more than 15 years in jail or other people held for months (or years) and then are let go due to lack of evidence (with their reputations in tatters), says something about whether we know the rules and laws of the country before we ACT on them.
People read about a proposed law that is merely an idea at the outset and begin to act as if it’s the real deal before the thing is even legally drafted into words much less tabled in Parliament. What does that say about the level of civics education in Namibia? How many of our people understand the long process it takes to get laws gazetted?
It seems that many people don’t get this key point: If Cabinet advises against something or recommends something that, in and of itself, is not instantly the law of the land per se.
There is a process that must be carried through to make something a law. Actually, our democratic processes are actually quite advanced and thorough.
I recall that unconstitutional nonsense some years back about banning mini-shirts in Namibia. I wrote about a case where my daughter was threatened with arrest (I was there) because her shorts were ‘too short’ in the eyes of some random police officer. No single police officer has the right to MAKE the law. Indeed, there are public decency laws, so all police should use them and let the courts decide. Law enforcement officials must never be judge, jury and executioner.
Of course, there will be misinterpretations of the law and that is what the courts are for. Sometimes there will be well-intentioned actions by those in authority that are based on a wrong understanding of the words of the Constitution.
Fair enough; we all make errors and none of us can be expected to know every little thing. But, what I am talking about here is the constant flow of high impact, unethical and illegal actions taken on so many levels in so many places that are unchecked and unchallenged.
Our Constitution rules all of us, all the time. No one, not a single living soul, can abrogate that Constitution at will, not a chief, not a president, not a bishop, not a minister and not even our employers, parents and teachers.
Regardless of who someone is, what ‘power’ those around them believe they have or what judgements each of us subjectively hold in our hearts, the rule of law in Namibia is supreme and NO ONE is above or below it. This is an ideal, of course, but if we don’t have overarching ideals for which we stand, then what’s the point?
Let us accept a painful self-criticism. Far too many amongst us are gullible, under-educated, inexperienced, prone to a ‘pack-mentality’ and follow the crowd, and are generally naïve about the wily ways of those with hidden, selfish agendas.
We are too easily influenced by gossip, rumors, unfounded speculation and someone else’s interpretation of cultural/traditional dictates, pseudo religions or flat out malicious lies. I have seen far too much of this, particularly in rural, remote or more isolated areas. But, the rule of law, taught to all, understood by the majority, is the only effective weapon against this.
Consider this: how can a father decide that the rape of his 14 year-old daughter should not be placed under the same rules of law that apply to anyone else accused of a statutory crime? His daughter has rights that he has no authority to set aside.
If we believe that payoffs to the parents of minors who are victims of crime is OK, then EVERYONE in ALL similar cases must be allowed to do the same thing. Therefore, those three thugs who just gang raped a 14-year-old in the Ombili informal settlement can just payoff the relatives of their victim to avoid all culpability and they are free to gang rape again and again.
This is an extreme, but I state it this way to make my point.
Consider another recent case: one ministry cannot just decide that the entire country doesn’t want a child born in Namibia of parents from the Netherlands (who are legally in Namibia for more than a decade) to be able to get a Namibian birth certificate, so they deny the parents’ request without looking at what the national law says on the matter nor do they consider precedents set in other similar cases where a different outcome was the result (i.e., Shiloh Jolie-Pitt).
Ergo, GRN suffers yet another loss in the courts because the ministry involved did not exercise sufficient due diligence before acting to rush a law through parliament to thwart a High Court ruling that went against them.
Consider all the many cases of widows and orphans disinherited by greedy and/or uninformed relatives and their assets are stolen while there is a Constitution in place that gives that widow and those children rights that must be respected.
We already know what must be done in such culturally-excused theft or disinheritance cases and yet, we consistently fail to do it (particularly when the victim is black, poor, under-educated and doesn’t have a ‘connected’ relative or friend.)
Each time the existing laws are not applied and a citizen’s rights are trampled - whether we know about it or not, whether that person complains about it or not - we weaken the nation.
Those in authority must not react spontaneously, but neither should they move like a kudu crossing the B-1 that gets caught in an oncoming car’s headlights and is confused and doesn’t know which way to move. There are rules, regulations and systems in place that guide how decisions are made. They are there, and we must use them.