CHAPTER 3
Fundamental Human Rights and Freedoms
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Article
5 - Protection of Fundamental Rights and Freedoms |
The fundamental
rights and freedoms enshrined in this Chapter shall be respected
and upheld by the Executive, Legislature and Judiciary and all
organs of the Government and its agencies and, where applicable
to them, by all natural and legal persons in Namibia, and shall
be enforceable by the Courts in the manner hereinafter prescribed. |
Article
6 - Protection of Life |
The right to life
shall be respected and protected. No law may prescribe death
as a competent sentence. No Court or Tribunal shall have the
power to impose a sentence of death upon any person. No executions
shall take place in Namibia. |
Article
7 - Protection of Liberty |
No persons shall
be deprived of personal liberty except according to procedures
established by law. |
Article
8 - Respect for Human Dignity |
(1) |
The dignity of all
persons shall be inviolable. |
(2) |
(a) |
In any judicial proceedings
or in other proceedings before any organ of the State, and during
the enforcement of a penalty, respect for human dignity shall
be guaranteed. |
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(b) |
No persons shall be subject
to torture or to cruel, inhuman or degrading treatment or punishment. |
Article
9 - Slavery and Forced Labour |
(1) |
No persons shall
be held in slavery or servitude. |
(2) |
No persons shall
be required to perform forced labour. |
(3) |
For the purposes
of this Article, the expression "forced labour" shall
not include: |
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(a) |
any labour required in consequence
of a sentence or order of a Court; |
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(b) |
any labour required of persons
while lawfully detained which, though not required in consequence
of a sentence or order of a Court, is reasonably necessary in
the interests of hygiene; |
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(c) |
any labour required of members
of the defence force, the police force and the prison service
in pursuance of their duties as such or, in the case of persons
who have conscientious objections to serving as members of the
defence force, any labour which they are required by law to perform
in place of such service; |
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(d) |
any labour required during any
period of public emergency or in the event of any other emergency
or calamity which threatens the life and well-being of the community,
to the extent that requiring such labour is reasonably justifiable
in the circumstances of any situation arising or existing during
that period or as a result of that other emergency or calamity,
for the purpose of dealing with that situation; |
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(e) |
any labour reasonably required
as part of reasonable and normal communal or other civic obligations. |
Article
10- Equality and Freedom from Discrimination |
(1) |
All persons shall
be equal before the law. |
(2) |
No persons may be
discriminated against on the grounds of sex, race, colour, ethnic
origin, religion, creed or social or economic status. |
Article
11 - Arrest and Detention |
(1) |
No persons shall
be subject to arbitrary arrest or detention. |
(2) |
No persons who are
arrested shall be detained in custody without being informed
promptly in a language they understand of the grounds for such
arrest. |
(3) |
All persons who
are arrested and detained in custody shall be brought before
the nearest Magistrate or other judicial officer within a period
of forty-eight (48) hours of their arrest or, if this is not
reasonably possible, as soon as possible thereafter, and no such
persons shall be detained in custody beyond such period without
the authority of a Magistrate or other judicial officer. |
(4) |
Nothing contained in Sub-Article
(3) hereof shall apply to illegal immigrants held in custody under any
law dealing with illegal immigration: provided that such persons shall
not be deported from Namibia unless deportation is authorised by a Tribunal
empowered by law to give such authority. |
(5) |
No persons who have
been arrested and held in custody as illegal immigrants shall
be denied the right to consult confidentially legal practitioners
of their choice, and there shall be no interference with this
right except such as is in accordance with the law and is necessary
in a democratic society in the interest of national security
or for public safety. |
Article
12 - Fair Trial |
(1) |
(a) |
In the determination of their
civil rights and obligations or any criminal charges against
them, all persons shall be entitled to a fair and public hearing
by an independent, impartial and competent Court or Tribunal
established by law: provided that such Court or Tribunal may
exclude the press and/or the public from all or any part of the
trial for reasons of morals, the public order or national security,
as is necessary in a democratic society. |
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(b) |
A trial referred to in Sub-Article
(a) hereof shall take place within a reasonable time, failing
which the accused shall be released. |
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(c) |
Judgments in criminal cases
shall be given in public, except where the interests of juvenile
persons or morals otherwise require. |
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(d) |
All persons charged with an
offence shall be presumed innocent until proven guilty according
to law, after having had the opportunity of calling witnesses
and cross-examining those called against them. |
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(e) |
All persons shall be afforded
adequate time and facilities for the preparation and presentation
of their defence, before the commencement of and during their
trial, and shall be entitled to be defended by a legal practitioner
of their choice. |
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(f) |
No persons shall be compelled
to give testimony against themselves or their spouses, who shall
include partners in a marriage by customary law, and no Court
shall admit in evidence against such persons testimony which
has been obtained from such persons in violation of Article 8(2)(b)
hereof. |
(2) |
No persons shall
be liable to be tried, convicted or punished again for any criminal
offence for which they have already been convicted or acquitted
according to law: provided that nothing in this Sub-Article shall
be construed as changing the provisions of the common law defences
of "previous acquittal" and "previous conviction". |
(3) |
No persons shall
be tried or convicted for any criminal offence or on account
of any act or omission which did not constitute a criminal offence
at the time when it was committed, nor shall a penalty be imposed
exceeding that which was applicable at the time when the offence
was committed. |
Article
13 - Privacy |
(1) |
No persons shall
be subject to interference with the privacy of their homes, correspondence
or communications save as in accordance with law and as is necessary
in a democratic society in the interests of national security,
public safety or the economic well-being of the country, for
the protection of health or morals, for the prevention of disorder
or crime or for the protection of the rights or freedoms of others. |
(2) |
Searches of the
person or the homes of individuals shall only be justified: |
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(a) |
where these are authorised by
a competent judicial officer; |
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(b) |
in cases where delay in obtaining
such judicial authority carries with it the danger of prejudicing
the objects of the search or the public interest, and such procedures
as are prescribed by Act of Parliament to preclude abuse are
properly satisfied. |
Article
14 - Family |
(1) |
Men and women of
full age, without any limitation due to race, colour, ethnic
origin, nationality, religion, creed or social or economic status
shall have the right to marry and to found a family. They shall
be entitled to equal rights as to marriage, during marriage and
at its dissolution. |
(2) |
Marriage shall be
entered into only with the free and full consent of the intending
spouses. |
(3) |
The family is the
natural and fundamental group unit of society and is entitled
to protection by society and the State. |
Article
15 - Children's Rights |
(1) |
Children shall have
the right from birth to a name, the right to acquire a nationality
and, subject to legislation enacted in the best interests of
children, as far as possible the right to know and be cared for
by their parents. |
(2) |
Children are entitled to be protected
from economic exploitation and shall not be employed in or required to
perform work that is likely to be hazardous or to interfere with their
education, or to be harmful to their health or physical, mental, spiritual,
moral or social development. For the purposes of this Sub Article children
shall be persons under the age of sixteen (16) years. |
(3) |
No children under
the age of fourteen (14) years shall be employed to work in any
factory or mine, save under conditions and circumstances regulated
by Act of Parliament. Nothing in this Sub-Article shall be construed
as derogating in any way from Sub-Article (2) hereof. |
(4) |
Any arrangement
or scheme employed on any farm or other undertaking, the object
or effect of which is to compel the minor children of an employee
to work for or in the interest of the employer of such employee,
shall for the purposes of Article 9 hereof be deemed to constitute
an arrangement or scheme to compel the performance of forced
labour. |
(5) |
No law authorising
preventive detention shall permit children under the age of sixteen
(16) years to be detained. |
Article
16 - Property |
(1) |
All persons shall
have the right in any part of Namibia to acquire, own and dispose
of all forms of immovable and movable property individually or
in association with others and to bequeath their property to
their heirs or legatees: provided that Parliament may by legislation
prohibit or regulate as it deems expedient the right to acquire
property by persons who are not Namibian citizens. |
(2) |
The State or a competent
body or organ authorised by law may expropriate property in the
public interest subject to the payment of just compensation,
in accordance with requirements and procedures to be determined
by Act of Parliament. |
Article
17 - Political Activity |
(1) |
All citizens shall have the right
to participate in peaceful political activity intended to influence the
composition and policies of the Government. All citizens shall have the
right to form and join political parties and; subject to such qualifications
prescribed by law as are necessary in a democratic society to participate
in the conduct of public affairs, whether directly or through freely chosen
representatives. |
(2) |
Every citizen who
has reached the age of eighteen (18) years shall have the right
to vote and who has reached the age of twenty-one (21) years
to be elected to public office, unless otherwise provided herein. |
(3) |
The rights guaranteed
by Sub-Article (2) hereof may only be abrogated, suspended or
be impinged upon by Parliament in respect of specified categories
of persons on such grounds of infirmity or on such grounds of
public interest or morality as are necessary in a democratic
society. |
Article
18 - Administrative Justice |
Administrative bodies
and administrative officials shall act fairly and reasonably
and comply with the requirements imposed upon such bodies and
officials by common law and any relevant legislation, and persons
aggrieved by the exercise of such acts and decisions shall have
the right to seek redress before a competent Court or Tribunal. |
Article
19 - Culture |
Every person shall
be entitled to enjoy, practise, profess, maintain and promote
any culture, language, tradition or religion subject to the terms
of this Constitution and further subject to the condition that
the rights protected by this Article do not impinge upon the
rights of others or the national interest. |
Article
20 - Education |
(1) |
All persons shall
have the right to education. |
(2) |
Primary education
shall be compulsory and the State shall provide reasonable facilities
to render effective this right for every resident within Namibia,
by establishing and maintaining State schools at which primary
education will be provided free of charge. |
(3) |
Children shall not
be allowed to leave school until they have completed their primary
education or have attained the age of sixteen (16) years, whichever
is the sooner, save in so far as this may be authorised by Act
of Parliament on grounds of health or other considerations pertaining
to the public interest. |
(4) |
All persons shall
have the right, at their own expense, to establish and to maintain
private schools, or colleges or other institutions of tertiary
education: provided that: |
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(a) |
such schools, colleges or institutions
of tertiary education are registered with a Government department
in accordance with any law authorising and regulating such registration; |
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(b) |
the standards maintained by such schools,
colleges or institutions of tertiary education are not inferior to the
standards maintained in comparable schools, colleges or institutions of
tertiary education funded by the State; |
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(c) |
no restrictions of whatever
nature are imposed with respect to the admission of pupils based
on race, colour or creed; |
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(d) |
no restrictions of whatever
nature are imposed with respect to the recruitment of staff based
on race or colour. |
Article
21 - Fundamental Freedoms |
(1) |
All persons shall
have the right to: |
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(a) |
freedom of speech and expression,
which shall include freedom of the press and other media; |
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(b) |
freedom of thought, conscience
and belief, which shall include academic freedom in institutions
of higher learning; |
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(c) |
freedom to practise any religion
and to manifest such practice; |
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(d) |
assemble peaceably and without
arms; |
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(e) |
freedom of association, which
shall include freedom to form and join associations or unions,
including trade unions and political parties; |
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(f) |
withhold their labour without
being exposed to criminal penalties; |
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(g) |
move freely throughout Namibia; |
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(h) |
reside and settle in any part
of Namibia; |
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(i) |
leave and return to Namibia; |
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(j) |
practise any profession, or
carry on any occupation, trade or business. |
(2) |
The fundamental
freedoms referred to in Sub-Article (1) hereof shall be exercised
subject to the law of Namibia, in so far as such law imposes
reasonable restrictions on the exercise of the rights and freedoms
conferred by the said Sub-Article, which are necessary in a democratic
society and are required in the interests of the sovereignty
and integrity of Namibia, national security, public order, decency
or morality, or in relation to contempt of court, defamation
or incitement to an offence. |
Article
22 - Limitation upon Fundamental Rights and Freedoms |
Whenever or wherever
in terms of this Constitution the limitation of any fundamental
rights or freedoms contemplated by this Chapter is authorised,
any law providing for such limitation shall: |
(a) |
be of general application,
shall not negate the essential content thereof, and shall not
be aimed at a particular individual; |
(b) |
specify the ascertainable
extent of such limitation and identify the Article or Articles
hereof on which authority to enact such limitation is claimed
to rest. |
Article
23 - Apartheid and Affirmative Action |
(1) |
The practice of
racial discrimination and the practice and ideology of apartheid
from which the majority of the people of Namibia have suffered
for so long shall be prohibited and by Act of Parliament such
practices, and the propagation of such practices, may be rendered
criminally punishable by the ordinary Courts by means of such
punishment as Parliament deems necessary for the purposes of
expressing the revulsion of the Namibian people at such practices. |
(2) |
Nothing contained
in Article 10 hereof shall prevent Parliament from enacting legislation
providing directly or indirectly for the advancement of persons
within Namibia who have been socially, economically or educationally
disadvantaged by past discriminatory laws or practices, or for
the implementation of policies and programmes aimed at redressing
social, economic or educational imbalances in the Namibian society
arising out of past discriminatory laws or practices, or for
achieving a balanced structuring of the public service, the police
force, the defence force, and the prison service. |
(3) |
In the enactment
of legislation and the application of any policies and practices
contemplated by Sub-Article (2) hereof, it shall be permissible
to have regard to the fact that women in Namibia have traditionally
suffered special discrimination and that they need to be encouraged
and enabled to play a full, equal and effective role in the political,
social, economic and cultural life of the nation. |
Article
24 - Derogation |
(1) |
Nothing contained
in or done under the authority of Article 26 hereof shall be
held to be inconsistent with or in contravention of this Constitution
to the extent that it authorises the taking of measures during
any period when Namibia is in a state of national defence or
any period when a declaration of emergency under this Constitution
is in force. |
(2) |
Where any persons
are detained by virtue of such authorisation as is referred to
in Sub-Article (1) hereof, the following provisions shall apply: |
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(a) |
they shall, as soon as reasonably
practicable and in any case not more than five (5) days after
the commencement of their detention, be furnished with a statement
in writing in a language that they understand specifying in detail
the grounds upon which they are detained and, at their request,
this statement shall be read to them; |
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(b) |
not more than fourteen (14)
days after the commencement of their detention, a notification
shall be published in the Gazette stating that they have been
detained and giving particulars of the provision of law under
which their detention is authorised; |
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(c) |
not more than one (1) month
after the commencement of their detention and thereafter during
their detention at intervals of not more than three (3) months,
their cases shall be reviewed by the Advisory Board referred
to in Article 26 (5)(c) hereof, which shall order their release
from detention if it is satisfied that it is not reasonably necessary
for the purposes of the emergency to continue the detention of
such persons; |
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(d) |
they shall be afforded such
opportunity for the making of representations as may be desirable
or expedient in the circumstances, having regard to the public
interest and the interests of the detained persons. |
(3) |
Nothing contained
in this Article shall permit a derogation from or suspension
of the fundamental rights or freedoms referred to in Articles
5, 6, 8, 9, 10, 12, 14, 15, 18, 19 and 21(1)(a), (b), (c) and
(e) hereof, or the denial of access by any persons to legal practitioners
or a Court of law. |
Article
25 - Enforcement of Fundamental Rights and Freedoms |
(1) |
Save in so far as
it may be authorised to do so by this Constitution, Parliament
or any subordinate legislative authority shall not make any law,
and the Executive and the agencies of Government shall not take
any action which abolishes or abridges the fundamental rights
and freedoms conferred by this Chapter, and any law or action
in contravention thereof shall to the extent of the contravention
be invalid: provided that: |
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(a) |
a competent Court, instead of
declaring such law or action to be invalid, shall have the power
and the discretion in an appropriate case to allow Parliament,
any subordinate legislative authority, or the Executive and the
agencies of Government, as the case may be, to correct any defect
in the impugned law or action within a specified period, subject
to such conditions as may be specified by it. In such event and
until such correction, or until the expiry of the time limit
set by the Court, whichever be the shorter, such impugned law
or action shall be deemed to be valid; |
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(b) |
any law which was in force immediately
before the date of Independence shall remain in force until amended,
repealed or declared unconstitutional. If a competent Court is
of the opinion that such law is unconstitutional, it may either
set aside the law, or allow Parliament to correct any defect
in such law, in which event the provisions of Sub-Article (a)
hereof shall apply. |
(2) |
Aggrieved persons
who claim that a fundamental right or freedom guaranteed by this
Constitution has been infringed or threatened shall be entitled
to approach a competent Court to enforce or protect such a right
or freedom, and may approach the Ombudsman to provide them with
such legal assistance or advice as they require, and the Ombudsman
shall have the discretion in response thereto to provide such
legal or other assistance as he or she may consider expedient. |
(3) |
Subject to the provisions of
this Constitution, the Court referred to in Sub Article (2) hereof shall
have the power to make all such orders as shall be necessary and appropriate
to secure such applicants the enjoyment of the rights and freedoms conferred
on them under the provisions of this Constitution, should the Court come
to the conclusion that such rights or freedoms have been unlawfully denied
or violated, or that grounds exist for the protection of such rights or
freedoms by interdict. |
(4) |
The power of the
Court shall include the power to award monetary compensation
in respect of any damage suffered by the aggrieved persons in
consequence of such unlawful denial or violation of their fundamental
rights and freedoms, where it considers such an award to be appropriate
in the circumstances of particular cases. |