Ronald Dworkin and the Supreme Court of Namibia

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.