Kawana’s Controversial Dual Roles
By: Alexactus T Kaure
WE have heard him on several occasions trying to drive the point home: ‘that everyone has the right to live and settle in any part of the country’.
That’s the law according to a simplistic reading/interpretation of the Namibian Constitution by the Minister of Presidential Affairs, Albert Kawana, who doubles as the Attorney-General.
His reading of the Constitution is based on the provisions of Chapter Three, especially Article 16 on property and also Article 21 on fundamental rights. The one on property states that: “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”. And on fundamental rights, it stipulates that one can move freely throughout Namibia and reside and settle in any part of country.
There are number of issues that I would like to raise in this piece. One is the controversial role of Kawana in the broader political configuration of the country. First, when he pronounces himself on some controversial issues, is he speaking as the Minister of Presidential Affairs or as the Attorney-General? In other words, in which capacity? I have always had a problem with one person assuming two positions which seem to be contradictory. Personally, I’m not comfortable with this marriage between the Attorney General’s Office,whose role is purely advisory,and the Minister of Presidential Affairs, which is ‘public relations’ in nature – one is constitutional, the other political.
In 2006, I raised that question when Pendukeni Iivula-Ithana was doubling as both the Minister of Justice and the AG. Eventually, this was ‘changed’ but then government repeated the same mistake by appointing Kawana to double. So, they didn’t solve the problem. Now, when Kawana came out strongly in defense of President Pohamba’s fencing off of communal land in the Okavango Region recently,in which capacity was he doing ? In my view, Pohamba’s land ‘grabbing’ is a private issue that the President himself must defend. The Minister must tell us in what capacity he was defending Pohamba.
Secondly, I also have a serious problem with the whole idea of the Attorney-General serving inthe Cabinet and the Legislature. These are supposed to be platforms for politicians and not law enforcers. The ideal situation is for the to be seen as an independent figure who is called upon, from time to time, to render opinion on the constitutionality of policy issues and government decisions, and Kawana is, of course, such a person when he speaks in Parliament, he speaks as a Swapo MP and a PRO for Pohamba. His freedom and independence as is thus compromised.
“The position of an AG would require someone who is able to maintain a critical distance on issues before pronouncing him or herself – not a politician who is at liberty to play the game of politics”, so I wrote in 2006 with regard to Iivula-Ithana. Kawana is tilting more towards the former US Attorney-General, John Ashcroft’s style of partisan politics,than being an independent defender of the Constitution. Why is he silent when the poor are being evicted as ‘illegal squatters’ all over the country – whether on farm land or in urban areas? What happened to the Constitutional provisions of settling ‘in any part of Namibia’ this instance?
This brings me to our Constitution which, in my view, to be amended because it was written by people who were physically present in the 20th century, but intellectually and politically still in a ‘state of nature’. In a capitalist country like Namibia, one wonders which part of this country is not occupied either by local or foreign individuals, corporations, municipalities, communities or the state. Thus the Constitutional provision that ‘I can settle anywhere in the country’ is bogus.
Minister Kawana conveniently ignores reading further the same subArticle which states: “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”.
When a constitutional provision is qualified several times like this, then it becomes useless. I don’t know how familiar Kawana is with the literature on the land tenure system in Africa. In contemporary Namibia, for example, there is no longer any ‘open access’ resource available. The ‘commons’, which President Pohamba and others in our society are fencing off and enclosing, belong to communities and must be preserved as such regardless of their return on capital. They should not be commodified because this wouldn’t bode well with succeeding generations and further, that wouldn’t be sustainable development. Two things need to be done now: amend the Constitution and divorce the Minister of Presidential Affairs from the Office of the Attorney-General.