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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 Sub Article (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." |
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 during 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. |