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Namibia Law Journal Volume 02 - Issue 02 (July - December 2010)


Footnotes


* Senior Lecturer, Head of Department, Private and Procedural Law, Faculty of Law, University of Namibia.

[3] The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols.

[4] 2TO/09/95.

[5] Amnesty International. 2003. "Namibia: Justice delayed is justice denied: The Caprivi treason trial"; 4 August, 42/001/2003. Web-Link; last accessed 19 July 2010.

[6] Reports submitted by The Government of the Republic of Namibia under Article 9 of the International Convention on the Elimination of Racial Discrimination CERD/C/NAM/12, 18 July 2007. Web-Link; last accessed 19 July 2010.

[7] See also Amoo, SK. 2008. "The bail jurisprudence of Ghana, Namibia, South Africa and Zambia". Forum on Public Policy: A Journal of the Oxford Round Table, Summer:1-29.

[8] The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols.

[9] Leary, V. 1982. International Labour Conventions and national law. La Haye: Martinus Nijhoff Publishers.

[10] The Protocol establishing the African Court on Human and Peoples' Rights entered into force on 25 January 2004.

[11] Steiner, HJ & P Alston. 2000. International human rights in context. New York: Oxford University Press, p 987.

[12] See Human Rights Committee. 2004. General Comment No. 31 (80). The Nature of the General Legal Obligation Imposed on States Parties to the Covenant Adopted on 29 March 2004 (2187th Meeting).

[13] The People v John Chisimba, 2TO/09/95, Zambia.

[14] Steiner & Alston (2000:925-6).

[15] Free Legal Assistance Group & Others v Zaire, African Commission on Human and Peoples' Rights Communication No. 25/89, 47/9, 56/91, 100/93 (1995).

[16] See the 1994 Decision in the Mekongo Communication Against Cameroon; African Commission on Human and Peoples' Rights, Communication No. 59/91 (1995).

[17] Steiner & Alston (2000:927).

[18] Pityana, NB. 2004. "Reflections on the African Court on Human and Peoples' Rights". African Human Rights Law Journal, 4:121. Web-Link; last accessed 19 July 2010.

[19] Article 30, Protocol to the Charter.

[20] Article 31, Protocol to the Charter.

[21] (ibid.).

[22] Pityana (2004).

[23] Article 29.2, Protocol to the Charter.

[24] Namibia and Zambia acceded to the ICCPR on 10 April 1984.

[25] Zambia signed the Charter on 17 January 1983, and ratified it on 10 January 1984. Namibia became a state party to the ICCPR on 28 February 1995.

[26] (1990) 2 SCR 1199; (1991) 49 CRR 1 (Supreme Court of Canada).

[27] In re Mlambo (1992) 4 SA 144 or (1992) 2 SACR 245.

[28] S v Heidenrich (NmHC) (1996) 2 BCLR 197 (1998) No. 229.

[29] In re Mlambo (1992) 4 SA 144 or (1992) 2 SACR 245; S v Heidenrich (NmHC) (1996) 2 BCLR 197 (1998) No. 229.

[30] In re Mlambo (1992) 4 SA 144 or (1992) 2 SACR 245.

[31] (ibid.).

[32] (1990) 2 SCR 1199.

[33] (1972) 407 US 514 at 530.

[34] R v Askov (1990) 2 SCR 1199.

[35] In the Askov case, the appellants were charged with conspiracy to commit extortion in November 1983. A, H and M were also charged with several related offences and detained in custody for almost six months before being released on recognisances. G was released on a recognisance shortly after his arrest. All counsel agreed on a date early in July 1984 for the preliminary hearing, but it could not be completed until September. A trial was then set for the first available date, in October 1985. The case could not be heard during that session, and was put over for trial to September 1986, almost two years after the preliminary hearing. When the trial finally began, appellants moved to stay the proceedings on the ground that the trial had been unreasonably delayed. The trial judge found that the major part of the delay following the appellants' committal stemmed from institutional problems and granted the stay. The Court of Appeal found: (1) no misconduct on the part of the Crown; (2) no indication of any objection by the appellants to any of the adjournments; and (3) no evidence of any actual prejudice to the appellants. It accordingly set aside the stay and directed that the trial proceed. But the Supreme Court found that the delay was prima facie excessive - indeed, grossly excessive. The Court further found that the defence never caused the delay nor agreed to it; the delay had been caused by the prosecution. Taking all those factors into consideration, the Court concluded that the delay could not be justified and was, therefore, unreasonable.

[36] 407 US 514 (1972).

[37] (ibid.:521).

[38] (ibid.:530).

[39] 1986 1 SCR 863 at 935.

[40] (ibid.).

[41] R v Askov (1990) 2 SCR 1199; and Mills v The Queen 1986 1 SCR 863 at 935.

[42] Mills v The Queen 1986 1 SCR 863 at 935.

[43] (1981) 2 SCR 64 at 73-74.

[44] In re Mlambo (1992) 4 SA 144 or (1992) 2 SACR 245.

[45] (1985) 5 EHRR 1.

[46] (1983) 5 EHRR 313.

[47] See also United States v Van Neumann 474 US 242 (1986) at 247. These factors received the imprimatur of the Privy Counsel in Bell v Director of Public Prosecutions of Jamaica and Another [1985] 2 All ER 585.

[48] 407 US 514 (1972).

[49] 1990 (1) ZLR 105 (SC) at 117 D-E.

[50] Barker v Wingo (1972) 407 US 514 at 530.

[51] The People v John Chisimba, 2TO/09/95, Zambia.

[52] S v Heidenrich (NmHC) 1996 (2) BCLR 197 (NmH): 1998 NR 229 at 235 A-C.

[53] R v Askov (1990) 2 SCR 1199.

[54] In re Mlambo (1992) 4 SA 144 or (1992) 2 SACR 245.

[55] S v Heidenrich (NmHC) (1996) 2 BCLR 197 (1998) No. 229.

[56] 1998 NR 160.

[57] 2000 NR 271.

[58] Case No. SA 04/2002. Unreported judgment of the Supreme Court of Namibia; Web-Link; last accessed 21 July 2010.

[59] 2000 (2) SACR 542 (SCA).

** BJuris; CuCL (cum laude); LLB (cum laude); LLM (cum laude); PhD Law Candidate, University of Namibia; Candidate Legal Practitioner at Sisa Namandje & Company Incorporated Legal Practitioners; Legal Advisor to the University of Namibia Student Representative Council.

[60] Holtmaat, R. 2004. "The concept of discrimination". Unpublished Academy of European Law Conference paper, p 2. Web-Link; last accessed 8 February 2010.

[61] Hayek, FA. 1972. The constitution of liberty. Chicago: Henry Regnery Company, p 85.

[62] Holtmaat (2004:2).

[63] Aristotle. 1980. 3 Ethica Nicomachea (Nicomachean Ethics). Translated by W Ross; edited by JL Ackrill and JO Urmson. Oxford: Oxford University Press, pp 112-117, 1131a-1131b.

[64] Beukes & Another v Botha & Others, unreported case No. (P) I 111/2004).

[65] At paragraph 3.

[66] Compare Articles 10 and 12(1)(a) of the Constitution.

[67] See e.g. Murray, W. 2007. "Equality and social rights: An exploration in light of the South African Constitution". Public Law, 2:751.

[68] Unreported case number (P) A. 141/2000 (20 April 2009)

[69]          That is if there is intelligible differentia proved through the application of the rational connection test. The Rational connection test will be discussed in more detail below.

[70] Müller v President of the Republic of Namibia & Another, 1999 NR 190 (SC).

[71] Government of the Republic of Namibia & Others v Mwilima & Others, SA 29/01.

[72] Müller v President of the Republic of Namibia & Another, 1999 NR 190 (SC); Mwellie v Ministry of Works, Transport and Communications, NmHc, 9.3.95, not reported, p 17. See alsoState v Vries, 1996 (2) SACR 639 NmHc, at 668(b)-670(a); Ramcharan, BG. 1981. "The rights of minorities". In Hewkin, L (Ed.). The International Bill of Rights: The Covenant of Civil and Political Rights. New York: Columbia University Press, 252.

[73] Mwilima case, original judgment, at 67.

[74] In the US, the term reverse discrimination was used in discussions of racial or gender quotas for collegiate admission to government-run educational institutions. Such policies have since been held to be unconstitutional in the US, while non-quota-based methods - which may include race as a factor, including some affirmative action programmes (race as a factor, ethnic minorities, and persons with physical, mental, or learning disabilities) - can be legal.

[75] This term is generally used in the US, alongside the term affirmative action.

[76] This term is generally used in Europe, particularly in the United Kingdom.

[77] This is found in Article 23 of the Constitution and was most probably adopted from the US.

[78] Department for Communities and Local Government. 2007. Discrimination Law review. A framework for fairness: Proposals for a single Equality Bill for Great Britain. A consultation paper. London: Voice UK, Respond & The Ann Craft Trust, p 61.

[79] No. 29 of 1998.

[80] Regarding similar developmental patterns in the US, see Fullinwider, R. 2009. "Affirmative Action". In Zalta, Edward N (Ed.). The Stanford Encyclopedia of Philosophy (Winter 2009 Edition). Web-Link; last accessed 7 February 2010.

[81] 438 US 265 (1978).

[82] No. 1 [551 US 701 (2007)].

[83] Lipsitz, G. 2006. The possessive investment in whiteness. Philadelphia: Temple University Press.

[84] 1996 (4) SA 197 (CC); 1996 (6) BCLR 752 (CC).

[85] Mwellie v Ministry of Works, Transport and Communication & Another, 1995 (a) BCCR 1118 (NmH).

[86] 1999 NR 190 (SC).

[87] Cabinet for the Territory of South West Africa v Chikane, 1989 (1) SA 349.

[88] At page 363.

[89] See the explanations in Chairman, Ciskei Council of State v Qokose 1994 (2) BCLR 1.

[90] Government of the Republic of Namibia v Cultura 2000, 1993 NR 328 (at 340B/C-C/D).

[91] This important principle was echoed both in S v Acheson 1991 NR 1 (at 10A-B) and S v Van Wyk 1993 NR 426 (at 456E-F).

[92] Uffindell t/a Aloe Hunting Safaris v Government of Namibia and Others. Unreported case number (P) A. 141/2000 (20 April 2009).

[93] Cf. Müller v President of the Republic of Namibia, at 200A-B; Harksen v Lane NO & Others, 1998 (1) SA 300 (CC), at paras 45 and 54; Van der Merwe v Road Accident Fund (Women's Legal Centre Trust as Amicus Curiae), 2006 (4) SA 230 (CC), at para. 25.

[94] See the Mwellie case at 1136H-I per Strydom JP (as he then was).

[95] Cassidy, EK. 2000. "Article 10 of the Namibian Constitution: A look at the first ten years of the interpretation of the rights to equality and non-discrimination and predictions of the future". In Hinz, MO, SK Amoo & D van Wyk (Eds). The Constitution at work: 10 years of Namibian nationhood. Pretoria: University of South Africa, p 169.

[96] Müller v President of the Republic of Namibia, at 200A-B.

[97] No. 1 of 1937.

[98] At 665A-C.

[99] At 665F-G.

[100] See also Brink v Kitshoff NO, 1996 (6) BCLR 775.

[101] Kauesa v Ministry of Home Affairs, 1994 NR 102.

[102] Per Goldstone J in President of the Republic of South Africa & Another v Hugo 1997 (6) BCLR 708, at paragraph 43.

[103] At 202 F-H.

[104] The Association of Law Societies of SA & The Law Society of Namibia. 2007. The practice of constitutional law: Human rights, and practical workings of the organs of the State and public bodies.  Windhoek: Justice Training Centre, p 48.

[105] See Coalition for Gay and Lesbian Equality v Minister of Justice 1998 (12) BCLR 1517, at paragraphs 16 and 22.

[106] Frank & Another v Chairperson of the Immigration Selection Board, 1999 NR 257 (at 318J-319A).

[107] 2000 NR 255 (at 266D).

[108] At 666.

[109] Arthur Frederick Uffindell t/a Aloe Hunting Safaris v Government of Namibia & 4 Others, unreported case No. (P) A 141/2000.

[110] At paragraph 11.

[111] (ibid.), referring to Lister v Incorporated Law Society, Natal, 1969 (1) 431 (N), at 434, and Sekretaris van Binnelandse Inkomste v Lourens Erasmus (Edms) Bpk, 1966 (4) SA 434 (A), at 443.

[112]        Discussed in Harksen v Lane NO & Others, 1998 (1) SA 300 (CC); Sieghart, P. 1984. The international law of human rights. Oxford: Oxford University Press, p 262.

[113] With reference to Prinsloo v Van der Linde & Another 1997 (3) SA 1012 (CC), at paragraphs [17] and [23]-[25]; Harksen v Lane NO & Others, at paragraphs [45]-[46], and Jooste v Score Supermarkets Trading (Pty) Ltd, 1999 (2) SA 1 (CC).

[114] Citing Mwellie v Ministry of Works, Transport and Communication & Another, 1995 (9) BCLR 1118 (NmH) in support.

[115] President of the Republic of South Africa v Hugo, 1997 (4) SA 1, at paragraph 41.

[116] Government of the Republic of Namibia v Cultura 2000, 1993 NR 328 (at 340B/C-C/D).

[117] President of the Republic of South Africa v Hugo, 1997 (4) SA 1.

[118] 202 F.3d 735, (5th Cir. 1999).

[119] (ibid.).

[120] 1991 NR 371 (at 375C-D).

[121] Naldi, G. 1995. Constitutional rights in Namibia. A comparative analysis with international human rights. Kenwyn: Juta & Co. Ltd, p 58.

[122] No. 26 of 1991.

[123] No. 2 of 1980.

[124] At 1132E-H.

[125] At 1127.

[126] At 1138E-H.

[127] 1997 (3) SA 1012, at 1024, paragraph 24.

[128] Co., 220 U.S. 61, 78-79 (1911).

[129] Mwellie, 1995 (9) BCLR 1118 (Nm), at 1138E-H.

[130] [1985] 1 SCR 295.

[131] R v Oakes [1986] 1 SCR 103.

[132] 447 US 557 (1980).

[133] 1991 NR 178, at 196I.

[134] 1998 NR 8.

[135] Slattery, B. 2009. "The pluralism of the Charter: Revisiting the Oakes Test". In Tremblay, Luc B & Gregoire CN Webber (Eds). The limitation of Charter rights: Critical essays on R v Oakes. Montreal: Editions Themis, pp 13-35.

[136] Naldi (1995:53).

[137] Kauesa v Ministry of Home Affairs, 1994 NR 102.

[138] This was a consolidation of the cases ofGunter Kessel v Ministry of Lands and Resettlement, Case No.'s (P) A 27/2006 and 266/2006;Heimaterde CC v Ministry of Lands and Resettlement, Case No. (P) A 269/2005; and Martin Joseph Riedmaier v Ministry of Lands and Resettlement, Case No. (P) A 267/2005.

[139] R v Edwards Books and Art Ltd [1986] 2 SCR 713.

[140] Ford v Quebec (Attorney General) [1988] 2 SCR 712.

[141] At 1132E-F.

[142] (ibid.).

[143] (ibid.).

[144] 1990 (2) SA 369.

[145] (ibid.:375A-B).

[146] For example, the prevention of harm to the individual; see Mill (1859/[1980]:13).

[147] See Parekh, B. 1992. "A case for positive discrimination". In Hepple, B & E Szyszczak (Eds). Discrimination: The limits of the law. London: Mansell Publishing Limited, p 261-280.

[148] Nagel, Thomas. 1973. "Equal treatment and compensatory discrimination". Philosophy and Public Affairs, 2(4):356-357.

[149] No. 19 of 1990.

[150] Unreported case No. SA 9/2005.

[151] See Minister of Home Affairs and Immigration v Majiet & Others, Unreported case No. SA 9/2005.

[152] At paragraph 44.

[153] No. 29 of 1990.

[154] Preamble to the Act. The Supreme Court commented that "in the wake of the enactment of the legal aid law, no one should necessarily feel left out, on account of poverty, from the right of access to the courts of law. So, the poverty-stricken potential claimant referred to in the Judge-President's hypothetical example is catered for".

[155] Hamwaama & Others v Attorney-General, unreported case No. A 176/2007.

[156] (ibid.:para. 24).

[157] S v Ganeb, 2002 NR 294.

[158] No. 51 of 1977.

[159] Ganeb, at 303G. In terms of the International Covenant on Civil and Political Rights (ICCPR), to which Namibia is a State Party, the right to appeal should be exercised "according to law". See also McKean, W. 1983. Equality and discrimination under international law. New York/Oxford: Clarendon Press/Oxford University Press

[160] Hamwaama, at paragraph 22.

[161] (ibid.:para. 23).

[162] (ibid.).

[163] (ibid.:para. 24).

[164] (ibid.).

[165] (ibid.:para. 22).

[166] (ibid.).

[167] 1992 (2) SA 667 (CC).

[168] At 672B.

[169] Hamwaama, at paragraph 16. See also S v Pennington & Another, 1999 (2) SACR 329, at 346b-d.

[170] Naldi (1995).

*** LL M, LL B; Lecturer and Acting Deputy Dean, Faculty of Law, University of Namibia.

[171] ILO. 2009. ILO Report 2009: Child labour. Web-Link; last accessed 12 November 2009.

[172] Rena, R. 2009. "The child labour in developing countries: A challenge". Industrial Journal of Management and Social Sciences, 3(1):1-8.

[173] Article 3, ILO Convention 182. This Convention was adopted in 1999, and entered into force in 2000. Namibia ratified the Convention on 15 November 2000.

[174] Child labour, as defined in Article 32 of the Convention on the Rights of the Child (CRC) is "economic exploitation [and] any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development".

[175] LeBeau, Debie. 2003. Towards the development of time-bound programmes for the elimination of the worst forms of child labour In Namibia. Discussion Document July 2003. International Labour Organisation's (ILO) International Programme on the Elimination of Child Labour (IPECL). Geneva/Pretoria: ILO, p 6.

[176] (ibid.:20).

[177] UNDP/United Nations Development Programme. 2001. Namibia Human Development Report 2000/2001: Gender and violence in Namibia. Windhoek: UNDP, p 119.

[178] (ibid.).

[179] LeBeau (2003:31).

[180] (ibid.).

[181] (ibid.).

[182] Terry, E. 2007. Elimination of child labour in Namibia. A discussion on what is known, existing policy and programmes and possible gaps. Windhoek: Ministry of Labour and Social Welfare & Programme: Towards the Elimination of the Worst Forms of Child Labour, p 54.

[183] Terry (2007).

[184] LeBeau (2003).

[185] (ibid.).

[186] (ibid.).

[187] Web-Link; last accessed 19 July 2010.

[188] LeBeau (2003)

[189] USDS/United States Department of State. 2009.Trafficking in persons 2009 - Namibia. Web-Link 1; Web-Link 2; last accessed 2 October 2009.

[190] At the time of writing, the Ministry of Labour and Social Welfare, in collaboration with the Ministry of Gender Equality and Child Welfare, was investigating child labour in many Regions across the country. One of the findings has been that both internal and external child trafficking exists in Namibia. However, the findings have not yet been publicly reported.

[191] See Steiner & Alston (2000:1004-5).

[192] See also McDougal, Myres. 1959. "The impact of international law upon national law: A policy-oriented perspective". South Dakota Law Review, 4(25):27-31.

[193] Article 144 of the Constitution of the Republic of Namibia reads as follows: "Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia".

[194] Steiner & Alston (2000).

[195] Article 144, Namibian Constitution.

[196] Committee on the Rights of the Child. 2003. General Comment No. 5, paragraphs 18 and 20.

[197] Article 7, Convention C182 of 1999.

[198] (ibid.:Article 3.)

[199] (ibid.:Article 4).

[200] (ibid.:Article 5).

[201] (ibid.:Article 6).

[202] (ibid.:Article 7).

[203] Article 1, Convention C138 of 1973.

[204] (ibid.:Article 2).

[205] (ibid.:Article 3).

[206] (ibid.:Article 7).

[207] ILO/International Labour Organisation. 2006. Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work: Effective abolition of child labour. Web-Link; last accessed 16 September 2009.

[208] (ibid.).

[209] (ibid.).

[210] (ibid.).

[211] (ibid.).

[212] Thus, it is immaterial whether Namibia has signed and/or ratified the 1998 ILO Declaration on Fundamental Principles and Rights at Work.

[213] Article 3(1), CRC.

[214] (ibid.:Article 12).

[215] (ibid.:Article 32).

[216] (ibid.:Article 34).

[217] (ibid.:Article 36).

[218] (ibid.:Article 39).

[219] (ibid.:Article 32(2)).

[220] The African Charter on Human and Peoples' Rights, adopted on 27 June 1981, entered into force on 21 October 1986 (OAU Doc. CAB/LEG/3, rev. 5, 21 I.L.M. 58 (1982)); hereafter referred to as the African Charter.

[221] The Assembly of Heads of State and Government is the supreme organ of the African Union.

[222] See Preamble to the African Charter.

[223] Article 15, ACRWC.

[224] Preamble, OPAC.

[225] (ibid.).

[226] Article 6(1), OPAC.

[227] Article 6(2) and (3), OPAC.

[228] Article 1, OPSC.

[229] (ibid.:Article 2).

[230] (ibid.:Article 3).

[231] (ibid.:Article 5, read with Article 3(b)-(c)).

[232] These include UN Guidelines and Declarations.

[234] Domestic action includes national laws, policies, programmes and any other administrative measure adopted by Namibia on the topic.

[235] Act No. 1 of 1990.

[236] (ibid.:Article 1(6)).

[237] Article 3(1), CRC.

[238] Naldi, GJ. 1995. Constitutional rights in Namibia. Kenwyn: Juta, p 79.

[239] S v Acheson 1991 1 NR 1 (HC) 10.

[240] Naldi (1995:81).

[241] No. 11 of 2007.

[242] Section 3(2)(a).

[243] Section 3(2)(b).

[244] Section 3(2)c).

[245] Section 3(2)(d).

[246] Section 3(4).

[247] Section 3(6).

[248] Terry (2007:84).

[249] See the discussion above on this Convention.

[250] Terry (2007:77).

[251] No. 1 of 2002.

[252] No. 33 of 1960.

[253] Section 1 of the Children's Act, 1960.

[254] Final Draft prepared by the Ministry of Justice, 2009.

[255] MGECW/Ministry of Gender Equality and Child Welfare. 2009. Draft Child Care and Protection Bill - Issues of public debate: Other child protection measures. Windhoek: MGECW, Legal Assistance Centre & UNICEF.

[256] Preamble, Child Care and Protection Bill.

[257] Section 2(c), Child Care and Protection Bill.

[258] Legal Assistance Centre (LAC) recommendations on section 58 of the Bill in MGECW (2009:35).

[259] Section 176, Child Care and Protection Bill.

[260] See LAC recommendations on section 176 in MGECW (2009:42).

[261] Section 158, Child Care and Protection Bill.

[262] Section 159, Child Care and Protection Bill.

[263] See the recommendation by the LAC to section 159 in MGECW (2009:37).

[264] No. 2 of 1999.

[265] Section 163, Child Care and Protection Bill.

[266] No. 29 of 2004.

[267] See the LAC's recommendations on section 58 in MGECW (2009:36).

[268] Section 24, ibid.

[269] No 6 of 2006.

[270] No 9 of 2003.

[272] No. 6 of 2006. Recent reports have suggested the Act might be repealed and its provisions incorporated into the Child Care and Protection Bill. If these recommendations are adopted by the Ministry of Gender Equality and Child Welfare, the Act would be repealed by the new legislation.

[273] Section 2, Children's Status Act.

[274] (ibid.:section 17).

[275] Section 2, Child Care and Protection Bill.

[276] (ibid.:section 16).

[277] No. 9 of 2003.

[278] Section 3, Maintenance Act.

[279] ILO (2006).

[280] No. 29 of 2004.

[281]         (ibid.:section1).

[282] No. 140 of 1992.

[283] MLSW/Ministry of Labour and Social Welfare. 2008. Action Programme on the Elimination of Child Labour in Namibia 2008-2012. Windhoek: MLSW, p 48.

[284] No. 11 of 1996.

[285] Section 2, Extradition Act, 1996.

[286] No. 4 of 2003.

[287] Section 2 of the Combating of Domestic Violence Act, 2003.

[288] Terry (2007:24).

[289] Section 21, Combating of Domestic Violence Act.

[290] Section 22, ibid.

[291] Section 4, ibid.

[292] No. 21 of 1980.

[293] Section 7, Combating of Immoral Practices Act.

[294] (ibid.).

[295] (ibid.:section 2).

[296] (ibid.:section 5).

[297] (ibid.:section 6).

[298] (ibid.:section 5).

[299] Terry (2007:27).

[300] Section 13, ibid.

[301] Ibid.

[302] No.7 of 2000.

[303] No. 37 of 1967.

[304] No. 8 of 2000.

[305] Section 2(2)(d), Combating of Rape Act.

[306] Section 3.

[307] This is because the prosecution has to prove, beyond reasonable doubt, that a criminal act has been committed by the accused. Thus, it is a way of lightening the burden of proof in such cases, making it easier for the prosecution to argue its case.

[308] Terry (2007:28).

[309] No. 51 of 1977.

[310] MLSW (2008:20).

[311] No. 25 of 2004.

[312] Section 189, Criminal Procedure Act, 2004.

[313] LeBeau, D, D Bosch, D Budlender & A Fourie. 2004. Towards the elimination of the worst forms of child labour in Namibia. Windhoek: Multi-disciplinary Research and Consultancy Centre, University of Namibia & Gender Training and Research Programme.

[314] Terry (2007:122).

[315] Terry (2007:57).

[316] Terry (2007).

[317] Terry (2007:127).

[318] Acquired immune deficiency syndrome.

[319] NPC/National Planning Commission. 1995.First National Development Plan (NDP1): 1995/1996-1999/2000, Vol. I & II. Windhoek: NPC; NPC. 2001. Second National Development Plan (NDP2): 2001/2002-2005/2006, Vol. 1-3. Windhoek: NPC.

[320] Human immunodeficiency virus.

[321] Section 17 of the National Gender Policy.

[322] MWACW/Ministry of Women Affairs and Child Welfare. 2003. "Services for children in need", Brochure. Windhoek: MWACW & UNICEF.

[323] Terry (2007:25).

[324] Section 31, Children's Act.

[325] Section 33, Children's Act.

[326] MWACW (2003).

[327] MGECW/Ministry of Gender Equality and Child Welfare. 2005. "Child welfare grants". Brochure. Windhoek: MGECW.

[328] ILO/International Labour Office. 2006. The end of child labour: Within reach. Global report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work . Geneva: ILO World Employment Programme.

[329] Terry (2007:45).

[330] Circular Formulary Ed. 5/2001 of 2001, Ministry of Education, Sport and Culture, on teenage pregnancy.

[331] (ibid.).

[332] Shejavali, N. 2009. "LAC calls for reform of school pregnancy policy"; The Namibian, 10 February 2009.

[333] This new Policy has been adopted by Cabinet, but is yet to be formally launched and implemented as there are still some consultations under way to finalise it.

[334] NPC (1995); NPC (2001); Office of the President. 2004. Namibia Vision 2030. Windhoek: Office of the President.

[335] NPC/National Planning Commission. 2008. Poverty Reduction Strategy for Namibia. Windhoek: NPC.

[336] (ibid.:2).

[337] (ibid.).

[338] (ibid.:17-20).

[339] See the framework outlined in (ibid.:25-26).

[340] NPC/National Planning Commission. 2002. National Poverty Reduction Action Programme 2001-2006. Windhoek: NPC.

[341] Terry (2007).

[342] Haarmann, C & D Haarmann (Eds). 2005. The Basic Income Grant in Namibia - Resource book. Windhoek: BIG Coalition.

[343] GRN/Government of the Republic of Namibia. 1995a . Food and Nutrition Policy for Namibia. Windhoek: National Food Security and Nutrition Council, Ministry of Agriculture, Water and Rural Development, pp 15-17.

[344] MAWRD/Ministry of Agriculture, Water and Rural Development. 2004. Follow-up Report on the Implementation of the World Food Summit Plan of Action in Namibia. Windhoek: Government of the Republic of Namibia, p 43.

[345] Terry (2007:44).

[346] Extended Programme Advisory Committee on Child Protection. 2008. Resolution Endorsing the Namibian National Action Programme towards the Elimination of Child Labour. Windhoek: Ministry of Labour and Social Welfare.

[347] MLSW (2008).

[348] (ibid.).

[349] Ministry of Basic Education, Sport and Culture. 2004. National Report on the Development of Education in Namibia. International Conference on Education, Geneva. Windhoek: MBESC; Web-Link: unpan1.un.org/intradoc/groups/public/.../cpsi/unpan036436.pdf; last accessed 17 October 2009.

[350] UNESCO/United Nations Educational, Scientific and Cultural Organisation. 2002. Primary research on children living and being on the street: The Namibian case. Conducted in co-operation with UNESCO. Windhoek: UNESCO.

[351] See ILO (2006:57-58).

[352] SIAPAC/Social Impact Assessment and Policy Analysis Corporation. 2002. A situation analysis of orphan children in Namibia. Windhoek: Directorate of Developmental Social Services, Ministry of Health and Social Services & United Nations Children's Fund (UNICEF), ES2-3.

[353] Terry (2007:44).

[354] (ibid.:39).

[355] Terry (2007:68).

[356] (ibid.:77).

[357] (ibid.:66).

[358] See http://www.santac.org/eng/About-us/Mission; last accessed 28 July 2010.

[359] CEDAW/C/NAM/2-3, submitted in 2005.

[360] SANTAC/ Southern African Regional Network against Trafficking and Abuse of Children. 2010. Tsireledzani: Understanding the dimensions of human trafficking in southern Africa. Web-Link; last accessed 28 July 2010.

[361] Web-Link; last accessed 16 June 2009. Cf. also USDS/United States Department of State. 2009. Trafficking in persons 2009 - Namibia. Web-Link; last accessed 2 October 2009.

[362] See the examples mentioned in Terry (2007:64).

[363] Terry (2007:125).

[364] MLSW (2008:48).

[365] Terry (2007).

[366] MLSW (2008:47).

[367] LAC (2002:194), cited in Terry (2007:80).

[368] (ibid.).

[369] MLSW (2008:100).

[370] LeBeau et al. (2004), cited in Terry (2007).

[371] Terry (2007:83).

**** LLD, University of the Western Cape; LLM (Human Rights and Democratisation in Africa) University of Pretoria; LLM (Human Rights Specialising in Reproductive and Sexual Health Rights), University of the Free State; LLB (Hons) Makerere University; Post-Doctoral Fellow, Faculty of Law, University of the Western Cape. I am indebted to the anonymous reviewers for the invaluable comments on this article. The usual caveats apply. djmujuzi@gmail.com.

[372] No. 25 of 2004.

[373] No. 17 of 1998.

[374] Section 86(3) of the Ugandan Prisons Act, No. 17 of 2006. It provides that, for the purposes of calculating remission, the sentence of life imprisonment means mean 20 years' imprisonment. For a detailed discussion of the law relating to life imprisonment in Uganda, see Mujuzi, JD. 2008. "Why the Supreme Court of Uganda should reject the Constitutional Court's understanding of imprisonment for life". African Human Rights Law Journal, 8:163-185.

[375] Section 73 of the South African Correctional Services Act, 1998 (No. 111 of 1998). For a detailed discussion of the law relating to life imprisonment in South Africa, see Mujuzi, JD. 2009a. "Life imprisonment in South Africa: Yesterday, today, and tomorrow". South African Journal of Criminal Justice, 22(1):1-38.

[376] For a detailed discussion of the law relating to life imprisonment in Mauritius, see Mujuzi, JD. 2009b. "The evolution of the meaning(s) of penal servitude for life (life imprisonment) in Mauritius: The human rights and jurisprudential challenges confronted so far and those ahead". Journal of African Law, 53(2):222-248.

[377] No. 25 of 2004.

[378] No. 51 of 1977.

[379] The Department of Justice manual relating to the release of prisoners provides that "prisoners sentenced for life (for which the minimum period of detention is regarded as twenty (20) years for administrative purposes) may be considered for parole … after having served at least half of the minimum period of detention of twenty (20) years, irrespective of whether it was his first offence or not'. See "Release of prisoners on parole"; Department of Justice, Directorate of Prisons, File No. 10/8/B, 4 August 1986; para. 4.3.1(h)(i); on file with the author.

[380] See Weidlich, Brigitte. 2010. "Changes protect whistleblowers, increase fines", 2 July 2010; Web-Link; last accessed 5 July 2010.

[381] Section 309, 2004 Criminal Procedure Act.

[382] For the discussion on Rwanda, see Mujuzi, JD. 2009c. "Issues surrounding life imprisonment after the abolition of the death penalty in Rwanda". Human Rights Law Review, 9(2):329-338. For a discussion of life imprisonment in South Africa and Mauritius, see Mujuzi (2009a, 2009b, respectively).

[383] See e.g. S v Alexander (SA5/99) [2003] NASC 5 (13 February 2003), where the appellant's appeal against the sentence of life imprisonment for murder was allowed and substituted with 16 years' imprisonment; in S v Katjivari (FA 2.97) [1998] NAHC 6 (18 May 1998), the appellant's life sentence for murder was substituted with 15 years' imprisonment; S v Koopman (SA6/00) [2001] NASC 3 (28 May 2001), in which the appellant's appeal against the sentence of life imprisonment for murder was dismissed; S v Rooi (SA17/03) [2004] NASC 1 (1 April 2004), in which the appellant's appeal against the sentence of life imprisonment for murder was struck off the court's roll; S v Singanda (SA 6/95) [1997] NASC 3, where the appellant's appeal against his murder conviction and life imprisonment were allowed; S v Moses (SA 2/96) [1996] NASC 8 (11 October 1996), in which the appellant's appeal against the sentence of life imprisonment for murder was allowed and substituted with 17 years' imprisonment; and S v Shikunga (SA 6/95) [1997] NASC 2 (20 August 1997), in which the appellant's appeal against his life sentence for murder was dismissed.

[384] Section 309(3)(a)(i).

[385] Section 309(3)(b)(i).

[386] Schedule 1 provides for 26 different offences, which include treason, sedition, public violence, murder, culpable homicide, rape (whether under a statute or common law), indecent assault, sodomy, bestiality, robbery, assault (when a dangerous wound is inflicted), kidnapping, child stealing, arson, malicious injury to property, fraud, an offence relating to money laundering, and an offence relating to coinage.

[387] Section 309(3)(c)(i).

[388] Section 309(3)d)(i).

[389] Article 1(1) of the Convention provides that, for "the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions".

[390] UN Treaty Collections, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Web-Link
; last accessed 12 January 2010.

[391] Article 19 of the Convention against Torture provides that "[t]he States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of the Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken and such other reports as the Committee may request".

[392] Namibia's Initial Report to the Committee against Torture, CAT/C/28/Add.2, 29 January 1997, para. 5.

[393] See Concluding Observations of the Committee against Torture on Namibia's Initial Report, A/52/44 paras 227-252, 6 May 1997, at para. 241.

[394] Underlining in original.

[395] Namibia's Initial Report to the Committee against Torture, CAT/C/28/Add.2, 29 January 1997, para. 43.

[396] It has been demonstrated that "[u]nlike torture, which is clearly defined under article 1 of [the Convention against Torture], the terms 'cruel', 'inhuman' and 'degrading' treatment or punishment are not defined in this treaty. The reason for this lies in its drafting history ... [T]he drafters of the Convention found it 'impossible' to define cruel, inhuman or degrading treatment or punishment". See Mujuzi, JD. 2009d. "Execution by hanging not torture or cruel punishment? Attorney General v Susan Kigula and Others. Malawi Law Journal, 3(1):133-146, at 143.

[397] For example, in declaring corporal punishment to be unconstitutional for violating Article 8 of the Namibian Constitution, Mohamed AJA relied on the Oxford English Dictionary to definecruel, inhuman and degrading treatment or punishment. See Ex parte: Attorney-General, in Re: Corporal Punishment by Organs of State 1991(3) SA 76 (NmSc).

[398] S v Tcoeib 1996 (1) SACR 390 (NmS) at 399.

[399] Bull & Another v The State 221/2000 [2001] ZASCA 105 (26 September 2001] para. 23.

[400] No. 8 of 1959.

[401] Attorney General v Susan Kigula & Others Constitutional Appeal No. 03 of 2006 (judgment of 21 January 2009, unreported).

[402] Kafantanyenyi & Others v Attorney General Constitutional Case No. 12 of 2005 (unreported).

[403] S v Vries [1996] NAHC 53.

[404] Stock Theft Act, 1990 (No. 12 of 1990).

***** Chairholder of one of the 14 World Trade Organisation (WTO) Chairs worldwide in the WTO's Chairs Programme in Geneva, Switzerland; Senior Lecturer in Law, Faculty of Law, University of Namibia. I am indebted to Dr Katharina Ruppel-Schlichting for her assistance in doing some of the research for this contribution.

[406] SACU/Southern African Customs Union. 2002. Agreement between the Governments of the Republic of Botswana, the Kingdom of Lesotho, the Republic of Namibia, the Republic of South Africa and the Kingdom of Swaziland ; Web-Link; last accessed 29 May 2010.

[407] One major challenge for SACU is that, so far, the institutional framework has not been realised to a satisfactory extent. Neither the Tariff Board nor the Tribunal are yet in place.

[408] Articles 7(f) and 13. The Tribunal has not yet been established.

[409] Article 34.

[410] Articles 38ff.

[411] Article 31. This mechanism is de facto not yet in existence.

[413] Common Market of South America (Argentina, Brazil, Paraguay and Uruguay).

[416] McCarthy, C. 2010. "The global financial and economic crisis and its impacts on sub-Saharan economies". In McCarthy, C, JB Cronjé, W Denner, T Fundira, W Mwanza & E Bursik. Supporting regional integration in East and Southern Africa - Review of selected issues Stellenbosch: Trade Law Centre for Southern Africa (tralac).

[417] Erasmus, G. 2009. "Regional trade arrangements: Developments and implications for southern African states". Namibia Law Journal, 1(1):29-41.

[418] Flatters, F & M Stern. 2006. "SACU revenue sharing: Issues and options". Policy Brief. Washington, DC: United States Agency for International Development & Serbia Economic Growth Actitivty.

[419] (ibid.).

[420] WTO/World Trade Organisation. 2009. Trade policy review - Southern African Customs Union (SACU). Record of the meeting. WT/TPR/M/222 7 December 2009; 39 para 261; Web-Link; last accessed 25 May 2010.

[421] WTO/World Trade Organisation. 2010. World Trade Report 2010 - Trade in natural resources. Geneva: WTO Publications, p 22.

[422] Statement made in Parliament by Namibia's Deputy Finance Minister, Calle Schlettwein, on 11 May 2010. Cf. Weidlich, B. 2010a. "SACU summit to look at revenue formula". The Namibian, 19 April 2010; and Weidlich, B. 2010b. "SACU revenue for Namibia less than half". The Namibian, 12 May 2010.

[423] SACU executive Secretary Tswelopele Moremi of the SACU Secretariat. Cf. Weidlich, B. 2009. "SACU reflects on its first century". The Namibian, 8 April 2009.

[424] Fundira, T. 2010. "The state of regional trading arrangements in southern Africa: Options and considerations". In McCarthy et al. (2010:140).

[425] Mike Schussler, a South African economist; cf. The Namibian, 11 March 2010, "SACU is a waste of money".

[426] Craemer, T. 2010. "Downgrading SACU could have political, economic costs". Engineering News Online, 21 May 2010; Web-Link; last accessed 28 May 2010.

[427] As stated by King Mwsati III of Swaziland on the occasion of the SACU centenary celebrations in Windhoek. See Ndlangamandla, M. 2010. "King shares new SACU vision". Swazi Observer, 23 April 2010; Web-Link; last accessed 10 May 2010.

[428] The EPA was revised in 2005 and 2010. The more recent revision incorporates changes that have taken place over the last decade, such as the growing importance of regional integration, food security, HIV and AIDS, climate change, and trade relations.

[429] With regard to the EU's non-reciprocal preferences for goods imported from ACP countries, the WTO had issued a waiver permitting exceptional and preferential treatment for trade in goods that expired at the end of 2007.

[430] UNECA/United Nations Economic Commission for Africa. 2008.Economic Partnership Agreements negotiations: A comparative assessment of the Interim Agreements; Web-Link; last accessed 10 May 2010.

[431] The Pacific, the Caribbean, West Africa, Central Africa, Eastern and Southern Africa, and the Southern African Development Community (SADC, but without South Africa).

[432] Statement by the European Communities' representative at the Trade Policy Review meeting held on 4 and 6 November 2009. WTO (2009:16, para. 90).

[433] Erasmus (2009:37f).

[434] Cf. Dessande, BH. 2010. "Trade policy implications of Economic Partnership Agreements (EPAs) between the European Union (EU) and Namibia". Unpublished thesis submitted in partial fulfilment of the degree of Master of Laws, University of Namibia.

[435] Ministry of Trade and Industry. 2010. "An update on the EPA negotiations". Ministerial statement made by the Hon. Hage Geingob, Minister of Trade and Industry, in the National Assembly on 19 May 2010; Web-Link; last accessed 27 May 2010.

[436] The consultative decision-making process is one of the issues which need to be put into practice, as it was not applied when the bilateral agreement between the EU and South Africa was concluded.

[437] Namibia's Minister of Trade and Industry, Hage Geingob, was quoted as saying that, if the five SACU member states could not find a solution, it might well spell the end of the customs union; Weidlich, B. 2010c. "If no EPA solution, SACU might end: Hage Geingob"; The Namibian, 21 May 2010.

[438] Communiqué by the Heads of State and Government Meeting of the Member States of the Southern African Customs Union (SACU) adopted on Friday, 16 July 2010, in Pretoria, South Africa; Web-Link; last accessed 25 July 2010.

[439] President Hifikepunye Pohamba of Namibia, King Mswati III of Swaziland, President Jacob Zuma of South Africa, President Ian Khama of Botswana, and Prime Minister Pakalitha Mosisili of Lesotho.

[440] Weidlich, B. 2010d. "SACU at 100 eyes transformation". The Namibian, 23 April 2010.

[441] SACU/Southern African Customs Union. 2010. Final Communiqué adopted by the Heads of State and Government Meeting on 22 April 2010 in Windhoek, Namibia; Web-Link; last accessed 18 May 2010.

[442] SACU (2010).

[443] For the challenges SADC currently faces with regard to regional integration, see Ruppel, OC. 2009a. "The SADC Tribunal, regional integration and human rights: Major challenges, legal dimensions and some comparative aspects from the European legal order". Recht in Afrika, 2: 205ff; Ruppel, OC. 2009b. "The Southern African Development Community (SADC) and its Tribunal: Reflexions on a Regional Economic Communities' potential impact [sic] on human rights protection". Verfassung und Recht in Übersee, 173-186.

[444] For further challenges, see e.g. Mwanza, WN. 2010. "Africa's continental integration agenda: Suggestions for African countries and regions". In McCarthy et al. (2010:67ff).

[445] Jakobeit, C, T Hartzenberg & N Charalambides. 2005. Overlapping membership in COMESA, EAC, SACU and SADC. Eschborn: Deutsche Gesellschaft für Technische Zusammenarbeit.

[446] SADC currently counts 15 member states : Angola, Botswana, the Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, the Seychelles, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe.

[447] On the jurisdiction of the SADC Tribunal, see Ruppel, OC. 2009c. "Regional economic communities and human rights in East and Southern Africa". In Bösl, A & J Diescho (Eds) Human rights in Africa - Legal perspectives on their protection and promotion. Windhoek: Macmillan Education Namibia, pp 295ff; and Ruppel, OC & F-X Bangamwabo. 2008. "The mandate of the SADC Tribunal and its role for regional integration". In Bösl, A, K Breydenbach, T Hartzenberg, C Mccarthy & K Schade (Eds). Yearbook for Regional Integration. Stellenbosch: Trade Law Centre for Southern Africa (Tralac), pp 187ff.

[448] Jacobeit et al. (2005:4).

[449] Andresen, H, H Brandt, H Gsänger, U Otzen, R Qualmann & HM Stahl. 2001. "Promoting regional integration in SADC". Reports and Working Papers No. 5/2001. Bonn: German Development Institute, p 3.

[450] In June 2009, COMESA launched its own customs union; see COMESA/Common Market of Eastern and Southern Africa. 2009. Official Gazette of COMESA, 14(4); Web-Link; last accessed 8 May 2010. However, only a few of the 19 COMESA countries actually signed up; cf. Van den Bosch, S. 2010. "SACU reaches 100th year despite recent divisions"; Inter Press Service, 26 April 2010; Web-Link; last accessed 26 May 2010.

[451] See COMESA-EAC-SADC/Common Market of Eastern and Southern Africa, East African Community & Southern African Development Community. 2008.Final Communiqué of the COMESA-EAC-SADC Tripartite Summit of Heads of State and Government, held in October 2008 in Kampala, Uganda: Towards a single market - Deepening COMESA-EAC-SADC integration; Web-Link; last accessed 13 December 2008.

[452] As stated by Executive Secretary Tswelopele Moremi of the SACU Secretariat. Cf. Weidlich, B. 2009. "SACU reflects on its first century"; The Namibian, 8 April 2009; and SACU/Southern African Customs Union. 2009a. Press statement on the outcome of the Special SACU Council of Ministers Meeting held on 17 September 2009 in Ezulwini, Swaziland; Web-Link; last accessed 29 May 2010.

[453] As can be taken from recent advertisements in Namibian newspapers which request an impact analysis of a possible trade agreement between SACU and the EAC; cf. The Namibian, 23 April 2010.

[454] Erasmus, G. 2010. "Will SACU have a permanent Summit?"; Web-Link; last accessed 27 May 2010.

[455] As noted by Trudi Hartzenberg of the Trade Law Centre for Southern Africa (tralac). See Weidlich, B. 2010e. "Deep re-thinking required for future of customs union"; The Namibian, 19 May 2010.

[456] The SACU Executive Secretary has identified an assessment of the agricultural sector in the SACU Region, and efforts have been made to establish key areas for cooperation; Weidlich, B. 2009. "SACU reflects on its first century"; The Namibian, 8 April 2009.

[457] Articles 38ff.

[458] These issues were the subject of the 1996 Singapore Ministerial Conference of the WTO, and are commonly referred to as the Singapore issues.

[459] SACU (2009a).

[460] Draper, P, D Halleson & P Alves. 2007. "SACU, regional integration and the overlap issue in southern Africa: From spaghetti to cannelloni?". Trade Policy Report No. 15. Braamfontein: The South African Institute of International Affairs, p 32; Web-Link; last accessed 28 May 2010.

[461] SACU-EFTA's FTA came into force in May 2008, meaning that provisions on intellectual property and investment have to be reviewed by the end of April 2013 at the latest.

[462] SACU/Southern African Customs Union. 2009b.Press statement on the 20th Meeting of the SACU Council of Ministers held on 04 December 2009 in Windhoek, Namibia; Web-Link http://www.sacu.int/docs/pr/2009/pr1207.pdf; last accessed 29 May 2010.

[463] Moremi (2010).

[464] As noted by Namibia's Deputy Finance Minister, Calle Schlettwein; cf. Weidlich, B. 2010e. "Deep re-thinking required for future of customs union"; The Namibian, 19 May 2010.

[465] WTO (2009:47 at para 316).

[466] Craemer (2010).

[467] Compared with 2005/2006 when its share was still over 52%. See WTO document WT/TPR/M/222/Add.1, p 41.

[468] Press release by the International Monetary Fund; Web-Link http://www.imf.org/external/np/sec/pr/2010/pr10224.htm; last accessed 29 July 2010.

[469] Professor of Law of the Faculties of Law at the University of Namibia and the University of Bremen, Germany.

[470] Organised by the Rule of Law Programme for Sub-Saharan Africa, Konrad Adenauer Foundation, under the directorship of Prof. Christian Roschmann, Nairobi.

[471] Which already enjoys a semi-autonomous status within the Sudan.

[472] This, at least, is the clear indication if one listens to the leading political force in Southern Sudan - the Sudan People's Liberation Movement/Army (SPLM/A) - which also scored an almost unchallenged victory in Southern Sudan in the recent elections, and to the ordinary person in the streets of Juba and elsewhere. The SPLM/A received 93% of the vote in the south. Its candidate for the office of President of Sudan as a whole received 22% of the vote, although Yasir Arman, whose name had remained on the ballot paper, had withdrawn his candidacy beforehand (cf. Neue Zürcher Zeitung, 29 April 2010).

[473] The author of this article assisted a delegation of lawyers, traditional leaders, and members of the Local Government Board of Southern Sudan in familiarising themselves with traditional authority and customary law in Namibia in 2008, and drafted a customary law strategy for the Government of Southern Sudan (Hinz, MO. 2009a. "... to develop the customary laws into the common law of the Sudan ...": Customary law in Southern Sudan: A strategy to strengthen Southern Sudanese customary law as a source of law in an autonomous legal system . Juba & Windhoek: United Nations Development Programme, Ministry of Legal Affairs and Constitutional Development & University of Namibia).

[474] On Somalia, see Bradbury, M 2008. Becoming Somaliland. Oxford: James Curry; on Eritrea, see Medhanie, T. 2008. Constitution-making, legitimacy and regional integration: An approach to Eritrea's predicament and relations with Ethiopia. Aalborg: Aalborg University.

[475] Cf.here Taha, MM. 1990. The second message of Islam. New York: Syracuse University Press; An-Na'im, AA. 1990. Towards an Islamic reformation. Civil liberties, human rights and international law. New York: Syracuse University Press; Burr, JM & RO Collins. 2003. Revolutionary Sudan. Hassan al-Turabi and the Islamist state: 1989-2000. Leiden: Brill. The Sudanese Mahmoud Mohammed Taha promoted a reform of Islam from within. He was executed for apostasy in Khartoum in 1985 (cf. Bennett, C. 2005. Muslims and modernity: An introduction to the issues and debates. London/New York: Continuum, pp 56f). Hassan at-Turabi is said to be the architect of Khartoum's Islamist ideology (cf. Piro, GA. 2007. The African jihad. Bin Laden's quest for the Horn of Africa. Trenton Asmara: The Red Sea Press, pp 16ff). Abdullahi Ahmed an-Na'im translated Taha's second message to Islam into English and supports Taha's liberal Islam in his own writings (cf. Bennett 2005:75ff).

[476] Cf. Piro (2007:6).

[477] Cf. Johnson, DH. 2007. The root course of Sudan's civil war (Updated fourth impression). Oxford: James Currey, pp 22ff, 59ff, 130ff.

[478] For this and the following, see Holt, PM & MW Daly. 2000. A history of the Sudan: From the coming of the Islam to the present day (Fifth edition). London: Pearson Education; Petterson, D. 2003. Inside Sudan: Islam, conflict, and catastrophe. Boulder: Westview Press; Johnson (2007); Bankie, BF. 2008. "The experience of Africans under Arab colonialisation and its antithesis". Juba (on file with the author of this article).

[479] On the history of the SPLM/A, cf. Johnson (2007:91ff, 111ff).

[480] John Garang led the SPLM/A through the CPA negotiations, but died in an air accident shortly after its signing.

[481] The Abyei area is special amongst the three mentioned, because of its ethnic relationship to the south and its economic importance. Most of Abyei belongs to the Dinka community, which is ethnically dominant in the south. Abyei was the focus of an international dispute between the south and the north because of its oil resources. As to the latter, cf. Permanent Court of Justice. 2009. Final award in the matter of an arbitration before a tribunal constituted in accordance with article 5 of the arbitration agreement between the Government of Sudan and the Sudan People's Liberation Movement/Army on delimiting Abyei area . The Hague: Permanent Court of Arbitration. It is noteworthy that Darfur - the part of northern Sudan with which the international community has shown most concern over the past few years - has not been considered in the CPA. On Darfur, cf. Flint, J & A de Waal. 2008. Darfur. A new history of a long war. London: Zed Books; African Union. 2009. Report of the African Union High Level Panel on Darfur. Abuja: African Union.

[482] Cf. chapeau of the CPA.

[483] Cf. Assessment and Evaluation Commission. 2008. Mid-term evaluation report submitted to the Comprehensive Peace Agreement. [No place of publication indicated]: Assessment and Evaluation Commission; Thomas, E. 2009. Against the gathering storm. Securing Sudan's Comprehensive Peace Agreement. London: The Royal Institute of International Affairs.

[484] E-newspaper www.sudantribune.com; last accessed 10 January 2010.

[485] The National Congress Party, which the ruling party in the northern part of the Sudan.

[486] Der Spiegel, 4 January 2010.

[487] Neue Zürcher Zeitung, 9 January 2010; "Not much to celebrate in Southern Sudan".

[488] See Hinz (2009a).

[489] The Interim Constitution of Southern Sudan of 2005.

[490] Cf. here Murray; C & C Maywald. 2003. "Sub-national constitution-making in Southern Sudan". Rutgers Law Journal, 37:1203ff.

[491] Which has since been implemented; the ten states exist, have adopted constitutions, and have established the envisaged governmental institutions.

[492] The following is based on work done by the author of this article as part of an assignment by the UNDP and the Southern Sudanese Ministry of Legal Affairs and Constitutional Development (MoLACD). The objective of the assignment was to draft a customary law strategy for the GSS (see Hinz 2009a). Cf. also Mading Deng, F. 1971. Tradition and modernization. A challenge for the law among the Dinka of the Sudan. New Haven/London: Yale University Press; Wuol Makec, J. 1988. The customary law of the Dinka people of Sudan. London: Afroworld Publishing; Hinz, MO. 2009b. "The ascertainment of customary law: What is it and what is it for?" In USIP & World Bank (Eds). Customary justice and legal pluralism in post-conflict and fragile societies. Conference Packet. Washington: United States Institute of Peace, George Washington University & World Bank, pp 133ff; Hinz, MO. 2009b. "Observations about local government in Southern Sudan". In USIP & World Bank (Eds). Customary justice and legal pluralism in post-conflict and fragile societies. Conference Packet. Washington: United States Institute of Peace, George Washington University & World Bank, pp 47ff; Biong Mijak, D. 2010. "Traditional authority in the post-CPA Southern Sudan". In Hinz, MO (Ed., in cooperation with C Mapaure). In search of justice and peace: Traditional and informal justice systems. Windhoek: Namibia Scientific Society, pp 325ff.

[493] There are more articles in the ICSS which refer to traditional authority and customary law. Article 174 was obviously modelled after Section 211 of the Constitution of South Africa of 1996.

[494] Government of Southern Sudan. 2009. The Kings, Chiefs and Traditional Leaders Conference, Bentiu, Unity State, 18-19 May 2009. Juba: Government of Southern Sudan.

[495] (ibid.:3).

[496] (ibid.:3).

[497] (ibid:10).

[498] (ibid:11).

[499] Hinz (2009a).

[500] The strategy, therefore, models the possible framework of the CLC, which is statutorily provided for in section 14(2)(c) of the Ministry of Legal Affairs and Constitutional Development Act of 2008. The envisaged CLC will be a unique institution, solely devoted to matters of customary law and, thus, the driving force behind the promotion and implementation of the proposed customary law strategy.

[501] The ascertainment of customary law through the various traditional communities in Southern Sudan has been given a special place in the strategy. However, the ascertainment process will not necessarily respond to the need for change and development. For this reason, the customary law strategy addresses ways to achieve such change and development. In addition, the strategy suggests to the GSS the legal and social environment for the operation of customary law. All these suggestions were largely based on work done in Namibia over the past few years. Cf. Hinz, MO & JW Kwenani. 2006. "The ascertainment of customary law". In Hinz, MO (Ed., in collaboration with HK Patemann). The shade of new leaves. Governance in traditional authority: A southern African perspective. Münster: Lit Verlag, pp 203ff; Hinz, MO. 2009c. "Phase 1 of the Namibian Ascertainment of Customary Law Project to be completed soon". Namibia Law Journal, 1(2):109ff. See also the strategy referred in Hinz (2009a:77ff).

[502] As referred to above, see footnote 15.

[503] (ibid.).

[504] Legal Practitioner of the High Court of Namibia.

[505] The member states of SADC and the SADC Tribunal are Angola, Botswana, the Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, the Seychelles, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.

[506] Tribunal Registry. [n.d.]. "The SADC Tribunal in 20 questions. A guide to SADCT". Unpublished.

[507] (ibid.).

[508] As defined in Article 1, SADC Treaty.

[509] (ibid.).

[510] (ibid.).

[511] Tribunal Registry. [n.d.].

[512] Article 15, SADC Protocol.

[513] Tribunal Registry. [n.d.].

[514] (ibid.).

[515] Rule 78.

[516] Tribunal Registry. [n.d.].

[517] Case No. SADC (T) 07/2009 (judgment delivered on 5 February 2010); hereafter referred to as the Mondlane case.

[518] Standing.

[519] Tribunal Registry. [n.d.].

[520] Article 17, SADC Protocol.

[521] Article 19, SADC Protocol.

[522] Case No. SADC (T) 02/2009; hereafter referred to as the Bookie case.

[523] (ibid.:2).

[524] (ibid.:3).

[525] (ibid.).

[526] Article 19, SADC Protocol.

[527] Bookie case, p 3.

[528] (ibid.:2).

[529] (ibid.:4).

[530] Case No. SADC (T) 07/2009.

[531] (ibid.:6).

[532] (ibid.).

[533] (ibid.).

[534] (ibid.:3).

[535] Defined in the SADC Treaty as the Chief Executive Officer of SADC, appointed under Article 10(7) of the Treaty.

[536] Hereafter referred to as Council.

[537] Hereafter referred to as Director: PPRM.

[538] Mondlane case, p 5.

[539] (ibid.:2).

[540] In no particular order of importance.

[541] Mondlane case, p 5.

[542] (ibid.).

[543] (ibid.:10).

[544] (ibid.).

[545] The Executive Secretary.

[546] Mondlane case, p 11.

[547] (ibid.).

[548] (ibid.:12).

[549] (ibid.).

[550] (ibid.).

[551] (ibid.:13).

[552] (ibid.).

[553] As at the date of writing this report, i.e. March 2010.

[554] SADC Tribunal Review, February 2010(1):19.

[555] SADC T 2/07; SADC T 11/08; SADC T 3/09; hereafter referred to as the Campbell case.

[556] SADC Tribunal Review, February 2010(1):21.

[557] (ibid.).

[558] (ibid.:22).

[559] (ibid.).

[560] (ibid.).

[561] Tribunal Registry. [n.d.] and Article 32, SADC Protocol.

[562] February 2010.

[563] At page 7.

[564] No. 81 of 1963.

[565] Comment from social worker, p 115.

[566] At page 129.

[567] Page 156.

[568] Detmold v Minister of Health and Social Services 2004 NR 175.

[569] (A 17/2005) [2008] NAHC 153 (23 July 2008).

[570] Thloro v Minister of Home Affairs, (P) A 159/2000 [2 July 2008].

[571] No. 6 of 2006.

[572] Page 198.

[573] Approved by Cabinet in October 2009.

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