Abstract:
The Namibian Constitution grounds the legal system in values such as
the rule of law, democracy, equality, respect for human dignity,
freedom etc. My aim was to approach the Constitution as a
transformative document. This is mainly because the Constitution
aims to transform the Namibian society from one characterized by
injustice and inequality for example, to a society where the principle of
equality reigns supreme, and where the rule of law, respect for human
dignity etc. are the distinguishing characteristics of the legal order.
However, the study noted the Constitution’s failure to entrench socioeconomic
rights as justiciable rights and the question was raised
whether this necessarily undermines the Constitution’s
transformative goals. Overall, my aim was to consider to what extent
the approach of Dworkin could address this failure. This study was
undertaken out of two concerns; firstly, the Namibian Constitution can
be termed a ‘classical liberal’ document which emphasizes civil and
political rights at the expense of socio-economic rights; and secondly,
the Supreme Court of Namibia’s current approach to constitutional
interpretation is inadequate to realize the transformative aims of the
Constitution.
Whereas Namibia’s Supreme Court has over the past 23twenty-three
years underlined the need to construe the Constitution broadly,
liberally, and purposively, it has failed to do so consistently, thus
casting doubt on the objectivity of constitutional values. For example,
the Court’s decision in S v Mushwena & Others is one that hardly
resonates with constitutional values of respect for the rule of law,
respect for human dignity, and the right to fair trial. Nonetheless, I
argued that Dworkin’s approach of constructive interpretation and law as integrity could address both the Constitution’s failure to entrench
socio-economic rights and also the Supreme Court’s incoherent
approach to constitutional interpretation. To this end, the study
recommends a moral reading of the Namibian Constitution, one based
on Dworkin’s theory of constructive interpretation and law as
integrity. This moral reading of the Constitution is not only to be
limited to civil and political rights, but also to socio-economic rights
implied in the principles of state policy.