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CHAPTER 4
Public Emergency, State of National
Defence and Martial Law
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Article
26 - State of Emergency, State of National Defence and Martial
Law |
| (1) |
At a time of national
disaster or during a state of national defence or public emergency
threatening the life of the nation or the constitutional order,
the President may by Proclamation in the Gazette declare that
a state of emergency exists in Namibia or any part thereof. |
| (2) |
A declaration under
Sub-Article (1) hereof, if not sooner revoked, shall cease to
have effect: |
|
(a) |
in the case of a declaration
made when the National Assembly is sitting or has been summoned
to meet, at the expiration of a period of seven (7) days after
publication of the declaration; or |
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(b) |
in any other case, at the expiration
of a period of thirty (30) days after publication of the declaration; |
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unless before the
expiration of that period, it is approved by a resolution passed
by the National Assembly by a two-thirds majority of all its
members. |
| (3) |
Subject to the provisions
of Sub-Article (4) hereof, a declaration approved by a resolution
of the National Assembly under Sub-Article (2) hereof shall continue
to be in force until the expiration of a period of six (6) months
after being so approved or until such earlier date as may be
specified in the resolution: provided that the National Assembly
may, by resolution by a two-thirds majority of all its members,
extend its approval of the declaration for periods of not more
than six (6) months at a time. |
| (4) |
The National Assembly
may by resolution at any time revoke a declaration approved by
it in terms of this Article. |
| (5) |
(a) |
During a state of emergency
in terms of this Article or when a state of national defence
prevails, the President shall have the power by Proclamation
to make such regulations as in his or her opinion are necessary
for the protection of national security, public safety and the
maintenance of law and order. |
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(b) |
The powers of the President
to make such regulations shall include the power to suspend the
operation of any rule of the common law or statute or any fundamental
right or freedom protected by this Constitution, for such period
and subject to such conditions as are reasonably justifiable
for the purpose of dealing with the situation which has given
rise to the emergency: provided that nothing in this Sub-Article
shall enable the President to act contrary to the provisions
of Article 24 hereof. |
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(c) |
Where any regulation made under
Sub-Article (b) hereof provides for detention without trial,
provision shall also be made for an Advisory Board, to be appointed
by the President on the recommendation of the Judicial Service
Commission, and consisting of no more than five (5) persons,
of whom no fewer than three (3) persons shall be Judges of the
Supreme Court or the High Court or qualified to be such. The
Advisory Board shall perform the function set out in Article
24 (2)(c) hereof. |
| (6) |
Any regulations
made by the President pursuant to the provisions of SubArticle
(5) hereof shall cease to have legal force if they have not been
approved by a resolution of the National Assembly within fourteen
(14) days from the date when the National Assembly first sits
in session after the date of the commencement of any such regulations. |
| (7) |
The President shall
have the power to proclaim or terminate martial law. Martial
law may be proclaimed only when a state of national defence involving
another country exists or when civil war prevails in Namibia:
provided that any proclamation of martial law shall cease to
be valid if it is not approved within a reasonable time by a
resolution passed by a two-thirds majority of all the members
of the National Assembly. |
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CHAPTER 5
The President
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Article
27 - Head of State and Government |
| (1) |
The President shall
be the Head of State and of the Government and the Commander-in-Chief
of the Defence Force. |
| (2) |
The executive power
of the Republic of Namibia shall vest in the President and the
Cabinet. |
| (3) |
Except as may be
otherwise provided in this Constitution or by law, the President
shall in the exercise of his or her functions be obliged to act
in consultation with the Cabinet. |
Article
28 - Election |
| (1) |
The President shall
be elected in accordance with the provisions of this Constitution
and subject thereto. |
| (2) |
Election of the
President shall be: |
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(a) |
by direct, universal
and equal suffrage; and |
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(b) |
conducted in accordance
with principles and procedures to be determined by Act of Parliament:
provided that no person shall be elected as President unless
he or she has received more than fifty (50) per cent of the votes
cast and the necessary number of ballots shall be conducted until
such result is reached. |
| (3) |
Every citizen of
Namibia by birth or descent, over the age of thirty-five (35)
years, and who is eligible to be elected to office as a member
of the National Assembly shall be eligible for election as President. |
| (4) |
The procedures to
be followed for the nomination of candidates for election as
President, and for all matters necessary and incidental to ensure
the free, fair and effective election of a President, shall be
determined by Act of Parliament: provided that any registered
political party shall be entitled to nominate a candidate, and
any person supported by a minimum number of registered voters
to be determined by Act of Parliament shall also be entitled
to be nominated as a candidate. |
Article
29 - Term of Office |
| (1) |
(a) |
The President's
term of office shall be five (5) years unless he or she dies
or resigns before the expiry of the said term or is removed from
office. |
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(b) |
In the event of
the dissolution of the National Assembly in the circumstances
provided for under Article 57(1) hereof, the President's term
of office shall also expire. |
| (2) |
A President shall
be removed from office if a two-thirds majority of all the members
of the National Assembly, confirmed by a two-thirds majority
of all the members of the National Council, adopts a resolution
impeaching the President on the ground that he or she has been
guilty of a violation of the Constitution or guilty of a serious
violation of the laws of the land or otherwise guilty of such
gross misconduct or ineptitude as to render him or her unfit
to hold with dignity and honour the office of President. |
| (3) |
A person shall hold
office as President for not more than two terms. |
| (4) |
If a President dies,
resigns or is removed from office in terms of this Constitution,
the vacant office of President shall be filled for the unexpired
period thereof as follows: |
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(a) |
if the vacancy occurs
not more than one (1) year before the date on which Presidential
elections are required to be held, the vacancy shall be filled
in accordance with the provisions of Article 34 hereof; |
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(b) |
if the vacancy occurs
more than one (1) year before the date on which Presidential
elections are required to be held, an election for the President
shall be held in accordance with the provisions of Article 28
hereof within a period of ninety (90) days from the date on which
the vacancy occurred, and pending such election the vacant office
shall be filled in accordance with the provisions of Article
34 hereof. |
| (5) |
If the President
dissolves the National Assembly under Articles 32(3)(a) and 57(1)
hereof, a new election for President shall be held in accordance
with the provisions of Article 28 hereof within ninety (90) days,
and pending such election the President shall remain in office,
and the provisions of Article 58 hereof shall be applicable. |
| (6) |
If a person becomes
President under Sub-Article (4) hereof, the period of time during
which he or she holds office consequent upon such election or
succession shall not be regarded as a term for the purposes of
Sub-Article (3) hereof. |
Article
30 - Oath or Affirmation |
| Before formally
assuming office, a President-elect shall make the following oath
or affirmation which shall be administered by the Chief Justice
or a Judge designated by the Chief Justice for this purpose: |
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"l, ....................................
do hereby swear/solemnly affirm,
That I will strive to the best
of my ability to uphold, protect and defend as the Supreme Law
the Constitution of the Republic of Namibia, and faithfully to
obey, execute and administer the laws of the Republic of Namibia;
That I will protect the independence,
sovereignty, territorial integrity and the material and spiritual
resources of the Republic of Namibia; and
That I will endeavour to the
best of my ability to ensure justice for all the inhabitants
of the Republic of Namibia.
(in the case of an oath)
So help me God."
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Article
31 - Immunity from Civil and Criminal Proceedings |
| (1) |
No person holding
the office of President or performing the functions of President
may be sued in any civil proceedings save where such proceedings
concern an act done in his or her official capacity as President. |
| (2) |
No person holding
the office of President shall be charged with any criminal offence
or be amenable to the criminal jurisdiction of any Court in respect
of any act allegedly performed, or any omission to perform any
act, during his or her tenure of office as President. |
| (3) |
After a President
has vacated that office: |
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(a) |
no Court may entertain
any action against him or her in any civil proceedings in respect
of any act done in his or her official capacity as President; |
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(b) |
a civil or criminal
Court shall only have jurisdiction to entertain proceedings against
him or her, in respect of acts of commission or omission alleged
to have been perpetrated in his or her personal capacity whilst
holding office as President, if Parliament by resolution has
removed the President on the grounds specified in this Constitution
and if a resolution is adopted by Parliament resolving that any
such proceedings are justified in the public interest notwithstanding
any damage such proceedings might cause to the dignity of the
office of President. |
Article
32 - Functions, Powers and Duties |
| (1) |
As the Head of State,
the President shall uphold, protect and defend the Constitution
as the Supreme Law, and shall perform with dignity and leadership
all acts necessary, expedient, reasonable and incidental to the
discharge of the executive functions of the Government, subject
to the overriding terms of this Constitution and the laws of
Namibia, which he or she is constitutionally obliged to protect,
to administer and to execute. |
| (2) |
In accordance with
the responsibility of the executive branch of Government to the
legislative branch, the President and the Cabinet shall each
year dur ing the consideration of the official budget attend
Parliament. During such session the President shall address Parliament
on the state of the nation and on the future policies of the
Government, shall report on the policies of the previous year
and shall be available to respond to questions. |
| (3) |
Without derogating
from the generality of the functions and powers contemplated
by Sub-Article (1) hereof, the President shall preside over meetings
of the Cabinet and shall have the power, subject to this Constitution
to: |
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(a) |
dissolve the National
Assembly by Proclamation in the circumstances provided for in
Article 57(1) hereof; |
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(b) |
determine the times
for the holding of special sessions of the National Assembly,
and to prorogue such sessions; |
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(c) |
accredit, receive
and recognise ambassadors, and to appoint ambassadors, plenipotentiaries,
diplomatic representatives and other diplomatic officers, consuls
and consular officers; |
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(d) |
pardon or reprieve
offenders, either unconditionally or subject to such conditions
as the President may deem fit; |
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(e) |
negotiate and sign
international agreements, and to delegate such power; |
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(f) |
declare martial
law or, if it is necessary for the defence of the nation, declare
that a state of national defence exists: provided that this power
shall be exercised subject to the terms of Article 26(7) hereof; |
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(g) |
establish and dissolve
such Government departments and ministries as the President may
at any time consider to be necessary or expedient for the good
government of Namibia; |
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(h) |
confer such honours
as the President considers appropriate on citizens, residents
and friends of Namibia in consultation with interested and relevant
persons and institutions; |
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(i) |
appoint the following
persons: |
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(aa) |
the Prime Minister; |
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(bb) |
Ministers and Deputy-Ministers; |
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(cc) |
the Attorney-General; |
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|
(dd) |
the Director-General
of Planning; |
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(ee) |
any other person
or persons who are required by any other provision of this Constitution
or any other law to be appointed by the President. |
| (4) |
The President shall
also have the power, subject to this Constitution, to appoint: |
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(a) |
on the recommendation
of the Judicial Service Commission: |
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(aa) |
the Chief Justice,
the Judge-President of the High Court and other Judges of the
Supreme Court and the High Court; |
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(bb) |
the Ombudsman; |
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(cc) |
the Prosecutor-General; |
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(b) |
on the recommendation
of the Public Service Commission: |
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(aa) |
the Auditor-General; |
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(bb) |
the Governor and
the Deputy-Governor of the Central Bank; |
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(c) |
on the recommendation
of the Security Commission: |
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(aa) |
the Chief of the
Defence Force; |
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(bb) |
the Inspector-General
of Police; |
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(cc) |
the Commissioner
of Prisons. |
| (5) |
Subject to the provisions
of this Constitution dealing with the signing of any laws passed
by Parliament and the promulgation and publication of such laws
in the Gazette, the President shall have the power to: |
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(a) |
sign and promulgate
any Proclamation which by law he or she is entitled to proclaim
as President; |
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(b) |
initiate, in so
far as he or she considers it necessary and expedient, laws for
submission to and consideration by the National Assembly; |
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(c) |
appoint as members
of the National Assembly but without any vote therein, not more
than six (6) persons by virtue of their special expertise, status,
skill or experience. |
| (6) |
Subject to the provisions
of this Constitution or any other law, any person appointed by
the President pursuant to the powers vested in him or her by
this Constitution or any other law may be removed by the President
by the same process through which such person was appointed. |
| (7) |
Subject to the provisions
of this Constitution and of any other law of application in this
matter, the President may, in consultation with the Cabinet and
on the recommendation of the Public Service Commission: |
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(a) |
constitute any office
in the public service of Namibia not otherwise provided for by
any other law; |
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(b) |
appoint any person
to such office, |
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(c) |
determine the tenure
of any person so appointed as well as the terms and conditions
of his or her service. |
| (8) |
All appointments
made and actions taken under Sub-Articles (3),(4),(5),(6) and
(7) hereof shall be announced by the President by Proclamation
in the Gazette. |
| (9) |
Subject to the provisions
of this Constitution and save where this Constitution otherwise
provides, any action taken by the President pursuant to any power
vested in the President by the terms of this Article shall be
capable of being reviewed, reversed or corrected on such terms
as are deemed expedient and proper should there be a resolution
proposed by at least one-third of all the members of the National
Assembly and passed by a two-thirds majority of all the members
of the National Assembly disapproving any such action and resolving
to review, reverse or correct it. |
| (10) |
Notwithstanding
the review, reversal or correction of any action in terms of
Sub-Article (9) hereof, all actions performed pursuant to any
such action during the period preceding such review, reversal
or correction shall be deemed to be valid and effective in law,
until and unless Parliament otherwise enacts. |
Article
33 - Remuneration |
| Provision shall
be made by Act of Parliament for the payment out of the State
Revenue Fund of remuneration and allowances for the President,
as well as for the payment of pensions to former Presidents and,
in the case of their deaths, to their surviving spouses. |
Article
34 - Succession |
| (1) |
If the office of
President becomes vacant or if the President is otherwise unable
to fulfil the duties of the office, the following persons shall
in the order provided for in this Sub-Article act as President
for the unexpired portion of the President's term of office or
until the President is able to resume office, whichever is the
earlier: |
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(a) |
the Prime Minister; |
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(b) |
the Deputy-Prime
Minister; |
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(c) |
a person appointed
by the Cabinet. |
| (2) |
Where it is regarded
as necessary or expedient that a person deputise for the President
because of a temporary absence from the country or because of
pressure of work, the President shall be entitled to nominate
any person enumerated in Sub-Article (1) hereof to deputise for
him or her in respect of such specific occasions or such specific
matters and for such specific periods as in his or her discretion
may be considered wise and expedient, subject to consultation
with the Cabinet. |