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CHAPTER 19
Amendment of the Constitution
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Article
131 - Entrenchment of Fundamental Rights and Freedoms |
| No repeal or amendment
of any of the provisions of Chapter 3 hereof, in so far as such
repeal or amendment diminishes or detracts from the fundamental
rights and freedoms contained and defined in that Chapter, shall
be permissible under this Constitution, and no such purported
repeal or amendment shall be valid or have any force or effect. |
Article
132 - Repeal and Amendment of the Constitution |
| (1) |
Any bill seeking
to repeal or amend any provision of this Constitution shall indicate
the proposed repeals and/or amendments with reference to the
specific Articles sought to be repealed and/or amended and shall
not deal with any matter other than the proposed repeals or amendments. |
| (2) |
The majorities required
in Parliament for the repeal and/or amendment of any of the provisions
of this Constitution shall be: |
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(a) |
two-thirds of all the members
of the National Assembly; and |
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(b) |
two-thirds of all the members
of the National Council. |
| (3) |
(a) |
Notwithstanding the provisions
of Sub-Article (2) hereof, if a bill proposing a repeal and/or
amendment of any of the provisions of this Constitution secures
a majority of two-thirds of all the members of the National Assembly,
but fails to secure a majority of two-thirds of all the members
of the National Council, the President may by Proclamation make
the bill containing the proposed repeals and/or amendments the
subject of a national referendum. |
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(b) |
The national referendum referred
to in Sub-Article (a) hereof shall be conducted in accordance
with procedures prescribed for the holding of referenda by Act
of Parliament. |
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(c) |
If upon the holding of such
a referendum the bill containing the proposed repeals and/or
amendments is approved by a two-thirds majority of·all
the votes cast in the referendum, the bill shall be deemed to
have been passed in accordance with the provisions of this Constitution,
and the President shall deal with it in terms of Article 56 hereof. |
| (4) |
No repeal or amendment
of this Sub-Article or Sub-Articles (2) or (3) hereof in so far
as it seeks to diminish or detract from the majorities required
in Parliament or in a referendum shall be permissible under this
Constitution, and no such purported repeal or amendment shall
be valid or have any force or effect. |
| (5) |
Nothing contained
in this Article: |
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(a) |
shall detract in any way from
the entrenchment provided for in Article 131 hereof of the fundamental
rights and freedoms contained and defined in Chapter 3 hereof; |
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(b) |
shall prevent Parliament from
changing its own composition or structures by amending or repealing
any of the provisions of this Constitution: provided always that
such repeals or amendments are effected in accordance with the
provisions of this Constitution. |
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CHAPTER 20
The Law in Force and Transitional
Provisions
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Article
133 - The First National Assembly |
| Notwithstanding
the provisions of Article 46 hereof, the Constituent Assembly
shall be deemed to have been elected under Articles 46 and 49
hereof, and shall constitute the first National Assembly of Namibia,
and its term of office and that of the President shall be deemed
to have begun from the date of Independence. |
Article
134 - Election of the First President |
| (1) |
Notwithstanding
the provisions of Article 28 hereof, the first President of Namibia
shall be the person elected to that office by the Constituent
Assembly by a simple majority of all its members. |
| (2) |
The first President
of Namibia shall be deemed to have been elected under Article
28 hereof and upon assuming office shall have all the powers,
functions, duties and immunities of a President elected under
that Article. |
Article
135 - Implementation of this Constitution |
| This Constitution
shall be implemented in accordance with the provisions of Schedule
7 hereof. |
Article
136 - Powers of the National Assembly prior to the Election of
a National Council |
| (1) |
Until elections
for a National Council have been held: |
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(a) |
all legislation shall be enacted
by the National Assembly as if this Constitution had not made
provision for a National Council, and Parliament had consisted
exclusively of the National Assembly acting on its own without
being subject to the review of the National Council; |
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(b) |
this Constitution shall be construed
as if no functions had been vested by this Constitution in the
National Council; |
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(c) |
any reference in Articles 29,
56, 75 and 132 hereof to the National Council shall be ignored:
provided that nothing contained in this Sub-Article shall be
construed as limiting in any way the generality of Sub-Articles
(a) and (b) hereof. |
| (2) |
Nothing contained
in Sub-Article (1) hereof shall detract in any way from the provisions
of Chapter 8 or any other provision of this Constitution in so
far as they make provision for the establishment of a National
Council, elections to the National Council and its functioning
after such elections have been held. |
Article
137 - Elections of the First Regional Councils and the First
National Council |
| (1) |
The President shall
by Proclamation establish the first Delimitation Commission which
shall be constituted in accordance with the provisions of Article
104 (1) hereof, within six (6) months of the date of Independence. |
| (2) |
Such Proclamation
shall provide for those matters which are referred to in Articles
102 to 106 hereof, shall not be inconsistent with this Constitution
and shall require the Delimitation Commission to determine boundaries
of regions and Local Authorities for the purpose of holding Local
Authority and Regional Council elections. |
| (3) |
The Delimitation Commission
appointed under such Proclamation shall forthwith commence its work, and
shall report to the President within nine (9) months of its appointment:
provided that the National Assembly may by resolution and for good cause
extend the period within which such report shall be made. |
| (4) |
Upon receipt of
the report of the Delimitation Commission the President shall
as soon as reasonably possible thereafter establish by Proclamation
the boundaries of regions and Local Authorities in accordance
with the terms of the report. |
| (5) |
Elections for Local
Authorities in terms of Article 111 hereof shall be held on a
date to be fixed by the President by Proclamation, which shall
be a date within six (6) months of the Proclamation referred
to in Sub-Article (4) hereof, or within six (6) months of the
date on which the legislation referred to in Article 111 hereof
has been enacted, whichever is the later: provided that the National
Assembly may by resolution and for good cause extend the period
within which such elections shall be held. |
| (6) |
Elections for Regional
Councils shall be held on a date to be fixed by the President
by Proclamation, which shall be a date within one (1) month of
the date of the elections referred to in Sub-Article (5) hereof,
or within one (1) month of the date on which the legislation
referred to in Article 106 (3) hereof has been enacted, whichever
is the later: provided that the National Assembly may by resolution
and for good cause extend the period within which such elections
shall be held. |
| (7) |
Elections for the
first National Council shall be held on a date to be fixed by
the President by Proclamation, which shall be a date within one
(1) month of the date of the elections referred to in Sub-Article
(6) hereof, or within one (1) month of the date on which the
legislation referred to in Article 69(2) hereof has been enacted,
whichever is the later: provided that the National Assembly may
by resolution and for good cause extend the period within which
such elections shall be held. |
Article
138 - Courts and Pending Actions |
| (1) |
The Judge-President
and other Judges of the Supreme Court of South-West Africa holding
office at the date on which this Constitution is adopted by the
Constituent Assembly shall be deemed to have been appointed as
the Judge-President and Judges of the High Court of Namibia under
Article 82 hereof on the date of Independence, and upon making
the oath or affirmation of office in the terms set out in Schedule
1 hereof, shall become the first Judge-President and Judges of
the High Court of Namibia: provided that if the Judge-President
or any such Judges are sixty-five (65) years of age or older
on such date, it shall be deemed that their appointments have
been extended until the age of seventy (70) in terms of Article
82(4) hereof. |
| (2) |
(a) |
The laws in force immediately
prior to the date of Independence governing the jurisdiction
of Courts within Namibia, the right of audience before such Courts,
the manner in which procedure in such Courts shall be conducted
and the power and authority of the Judges, Magistrates and other
judicial officers, shall remain in force until repealed or amended
by Act of Parliament, and all proceedings pending in such Courts
at the date of Independence shall be continued as if such Courts
had been duly constituted as Courts of the Republic of Namibia
when the proceedings were instituted. |
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(b) |
Any appeal noted to the Appellate
Division of the Supreme Court of South Africa against any judgment
or order of the Supreme Court of South-West Africa shall be deemed
to have been noted to the Supreme Court of Namibia and shall
be prosecuted before such Court as if that judgment or order
appealed against had been made by the High Court of Namibia and
the appeal had been noted to the Supreme Court of Namibia. |
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(c) |
All criminal prosecutions initiated
in Courts within Namibia prior to the date of Independence shall
be continued as if such prosecutions had been initiated after
the date of Independence in Courts of the Republic of Namibia. |
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(d) |
All crimes committed in Namibia
prior to the date of Independence which would be crimes according
to the law of the Republic of Namibia if it had then existed,
shall be deemed to constitute crimes according to the law of
the Republic of Namibia, and to be punishable as such in and
by the Courts of the Republic of Namibia. |
| (3) |
Pending the enactment
of the legislation contemplated by Article 79 hereof: |
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(a) |
the Supreme Court shall have
the same jurisdiction to hear and determine appeals from Courts
in Namibia as was previously vested in the Appellate Division
of the Supreme Court of South Africa; |
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(b) |
the Supreme Court shall have
jurisdiction to hear and determine matters referred to it for
a decision by the Attorney-General under this Constitution; |
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(c) |
all persons having the right
of audience before the High Court shall have the right of audience
before the Supreme Court; |
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(d) |
three (3) Judges shall constitute
a quorum of the Supreme Court when it hears appeals or deals
with matters under Sub-Articles (a) and (b) hereof: provided
that if any such Judge dies or becomes unable to act after the
hearing of the appeal or such matter has commenced, but prior
to judgment, the law applicable in such circumstances to the
death or inability of a Judge of the High Court shall apply mutatis
mutandis; |
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(c) |
until rules of the Supreme Court
are made by the Chief Justice for the noting and prosecution
of appeals and all matters incidental thereto, the rules which
regulated appeals from the Supreme Court of South-West Africa
to the Appellate Division of the Supreme Court of South Africa,
and were in force immediately prior to the date of Independence,
shall apply mutatis mutandis. |
Article
139 - The Judicial Service Commission |
| (1) |
Pending the enactment
of legislation as contemplated by Article 85 hereof and the appointment
of a Judicial Service Commission thereunder, the Judicial Service
Commission shall be appointed by the President by Proclamation
and shall consist of the Chief Justice, a Judge appointed by
the President, the Attorney-General, an advocate nominated by
the Bar Council of Namibia and an attorney nominated by the Council
of the Law Society of South-West Africa: provided that until
the first Chief Justice has been appointed, the President shall
appoint a second Judge to be a member of the Judicial Service
Commission who shall hold office thereon until the Chief Justice
has been appointed. The Judicial Service Commission shall elect
from amongst its members at its first meeting the person to preside
at its meetings until the Chief Justice has been appointed. The
first task of the Judicial Service Commission shall be to make
a recommendation to the President with regard to the appointment
of the first Chief Justice. |
| (2) |
Save as aforesaid
the provisions of Article 85 hereof shall apply to the functioning
of the Judicial Service Commission appointed under Sub-Article
(1) hereof, which shall have all the powers vested in the Judicial
Service Commission by this Constitution. |
Article
140 - The Law in Force at the Date of Independence |
| (1) |
Subject to the provisions
of this Constitution, all laws which were in force immediately
before the date of Independence shall remain in force until repealed
or amended by Act of Parliament or until they are declared unconstitutional
by a competent Court. |
| (2) |
Any powers vested
by such laws in the Government, or in a Minister or other official
of the Republic of South Africa shall be deemed to vest in the
Government of the Republic of Namibia or in a corresponding Minister
or official of the Government of the Republic of Namibia, and
all powers, duties and functions which so vested in the Government
Service Commission, shall vest in the Public Service Commission
referred to in Article 112 hereof. |
| (3) |
Anything done under
such laws prior to the date of Independence by the Government,
or by a Minister or other official of the Republic of South Africa
shall be deemed to have been done by the Government of the Republic
of Namibia or by a corresponding Minister or official of the
Government of the Republic of Namibia, unless such action is
subsequently repudiated by an Act of Parliament, and anything
so done by the Government Service Commission shall be deemed
to have been done by the Public Service Commission referred to
in Article 112 hereof, unless it is determined otherwise by an
Act of Parliament. |
| (4) |
Any reference in
such laws to the President, the Government, a Minister or other
official or institution in the Republic of South Africa shall
be deemed to be a reference to the President of Namibia or to
a corresponding Minister, official or institution in the Republic
of Namibia and any reference to the Government Service Commission
or the government service, shall be construed as a reference
to the Public Service Commission referred to in Article 112 hereof
or the public service of Namibia. |
| (5) |
For the purposes
of this Article the Government of the Republic of South Africa
shall be deemed to include the Administration of the Administrator-General
appointed by the Government of South Africa to administer Namibia,
and any reference to the Administrator-GeneraI in legislation
enacted by such Administration shall be deemed to be a reference
to the President of Namibia, and any reference to a Minister
or official of such Administration shall be deemed to be a reference
to a corresponding Minister or official of the Government of
the Republic of Namibia. |
Article
141 - Existing Appointments |
| (1) |
Subject to the provisions
of this Constitution, any person holding office under any law
in force on the date of Independence shall continue to hold such
office unless and until he or she resigns or is retired, transferred
or removed from office in accordance with law. |
| (2) |
Any reference to
the Attorney-General in legislation in force immediately prior
to the date of Independence shall be deemed to be a reference
to the Prosecutor-General, who shall exercise his or her functions
in accordance with this Constitution. |
Article
142 - Appointment of the First Chief of the Defence Force, the
First Inspector-General of Police and the First Commissioner
of Prisons |
| The President shall,
in consultation with the leaders of all political parties represented
in the National Assembly, appoint by Proclamation the first Chief
of the Defence Force, the first Inspector-General of Police and
the first Commissioner of Prisons. |
Article
143 - Existing International Agreements |
| All existing international
agreements binding upon Namibia shall remain in force, unless
and until the National Assembly acting under Article 63(2)(d)
hereof otherwise decides. |