The draft constitution for the new Namibian state was presented to the Constituent Assembly at the end of January. It guarantees democratic rights and human freedoms and outlaws apartheid. Shortly before this, in a separate move, a 'shadow cabinet' was appointed by SWAPO President Sam Nujoma to prepare for an independent Namibia.
The Constituent Assembly, in which SWAPO has 41 out of 72 seats as a result of its victory in the UN-controlled elections last November, will become Namibia's new legislature. It set 21 March as the date for independence.
During December the seven parties in the assembly tabled their constitutional proposals. These were then referred to a standing committee on which all parties were represented, which worked out a compromise document — although the SWAPO draft was used as the basic working proposal.
SWAPO's draft constitution incorporated principles agreed upon in 1982 during the course of the independence negotiations, which all parties supported. These included provisions for an independent judiciary, regular democratic elections to the legislature and a bill of rights. There was also broad inter-party agreement on many general provisions of the constitution, including citizenship rights, the boundaries of the territory, educational policies, local and regional government, and language, and constitutional provisions relating to the economic system.
Opposition revolved around SWAPO's proposals for an executive presidency, a single chamber of parliament, provision for emergency rule and detention without trial, and constituency-based elections as opposed to proportional representation. By the time the assembly broke up for its Christmas recess, most of these issues had been largely resolved through compromise.
The standing committee announced on 21 December that broad agreement had been reached and that three legal experts had been appointed to finalise the constitution, which would be presented to the assembly when it reconvened in January.
The legal experts presented their draft to the standing committee on 9 January, but presentation of the final document to the assembly was held up when delegates objected to some of the clauses formulated by them. The draft was 'leaked' to The Namibian and published on 10 January.
The National Union of Namibian Workers (NUNW), Namibia's trade union federation, which had campaigned for SWAPO in the elections, demanded revisions to the draft document. It called for further fundamental freedoms to be incorporated, mostly related to workers' rights, and asked the Constituent Assembly to promote public debate on the draft constitution.
The revised draft was presented to the Constituent Assembly on 29 January. It was to be discussed article-by-article but delegates were not expected to raise major objections because of the lengthy process of compromise involved in drawing it up.
The draft constitution provided for an executive and legislature, an independent judiciary and the establishment of a police and military force. English would be the official language, but other languages could be used where appropriate. Other provisions were:
- Territory Namibia will be a secular republic 'founded upon the principles of democracy, the rule of law and justice for all'. Its territory will include the South African-claimed enclave of Walvis Bay, as well as the islands off the Namibian coast, and its southern boundary with South Africa will extend to the middle of the Orange River.
- Fundamental rights and freedoms These are constitutionally entrenched, and include provisions against forced labour, expropriation of property without compensation, torture and arbitrary arrest, and sexual and racial discrimination. The rights to privacy, political activity and conscientious objection to military service are upheld, and the death penalty is abolished. Practising apartheid and racism will become criminal offences.
- Education All children are required to attend school until the age of 16 or until they have completed primary school. Education will be free but private schools will be allowed, providing they do not discriminate on the grounds of race.
- Executive The president will be elected by universal suffrage for a five-year period. He or she will be allowed to serve for only two periods and will need 50 per cent of votes cast to take office. The president will have powers to appoint the prime minister, cabinet and senior civil servants, to declare a state of emergency, and to declare war or conclude peace and can be impeached by a two-thirds majority of the National Assembly and National Council. Cabinet ministers will be prohibited from carrying out private business activities.
- Legislature The National Assembly of 72 members will be elected by proportional representation for a five-year period.
- Regional Councils Namibia will be divided into regions, each of which will elect a Regional Council. There will also be elected local and municipal bodies.
- National Council A second chamber known as a National Council will be elected by the Regional Councils. It will have powers to review legislation and refer it back to the National Assembly.
President Nujoma announced on 21 December the appointment of 16 'shadow ministers' as well as deputies and assistants, who were asked to start planning to establish ministries. All the 'ministers' were drawn from SWAPO (although the posts of agriculture and tourism were left vacant). However, Reggie Diergaardt, the UDF chairman, and Vekuii Rukoro, the president of the Namibia National Front, took up deputy posts, resulting in rifts within their respective parties.
The provisions of the new constitution will only come into force after Namibia gains its independence. However, Hage Geingob, the chairman of the Constituent Assembly, called in December for apartheid to be abolished in schools in the new year. He was responding to statements by the South African Administrator-General (AG) that schools would remain segregated until independence. The AG had also attempted to 'privatise' whites-only schools by leasing them to a company established by some Afrikaans and German churches. This was widely condemned as an attempt to avoid desegregation, and the plan was dropped after protests.
Just before schools opened in the second week of January, the AG backed down and announced that, as the white schools themselves had requested it, they would be open to all. However, the legislation governing segregated schooling was not repealed and the schools applied strict selection criteria, with the result that only about 500 black students registered at white schools. Hospitals reserved for whites were declared 'open' at the same time, but blacks would only be admitted as private patients.
