Morality and the Law
By: SALOM H. HAIDULA
THE recent spate of shack demolitions and closures of illegal shebeens has prompted me to think out loud and put my thoughts on paper for all to read and where appropriate critique.
The aim of this opinion piece is to focus on the topic of morality and the law on a broader level by making reference to the role of the police in enforcing the laws of the day in a constitutional state.
Hobbes demarcated the functions of the branches of government in simple terms. He viewed the state as the solution to a practical problem of order. Laws provide predictability, and are backed with threats. As a result it is imperative to have three branches of government – one for making law (legislature), one for interpreting and applying the laws and one for enforcing the laws. Moral limitation on the sovereignty of the three branches of government, risks controversy and eventual war.
The Namibian Police derives its legitimacy from the Namibian Constitution, which provides for the establishment of the Namibian Police. Furthermore, the Police Act 1990, (Act 19 of 1990) as amended is the enabling act which gave rise to the establishment of the Namibian Police as we know it today. In terms of the Constitution and the Police Act the Police is the custodian of maintaining law and order and during the course of exercising this function together with the other functions bestowed upon it there is no provision nor discretion granted to the Police to take into account individual circumstances or moral considerations but rather to enforce the law without fear or favour.
To grasp the issue of morality and law it is only appropriate that at this juncture I point to two schools of thought: namely the positivist school of thought and the natural school of thought. Positivists will regard most intrusions of morality into official decisions as making law rather than applying or enforcing it as it is. The question now springs to mind, when enforcing the law is there room for the Police to decide which laws to apply taking moral considerations into account and if so does this not constitute the Police, being part of the Executive, usurping or encroaching upon the functions of the Legislature and Judiciary. Natural lawyers will suppose, contrary to positivists, that correctly applying the law requires moral argument. However, the distinction between making and applying law also has important implications for understanding the demands placed on the Police as implementers of the laws of the country. So the million dollar question pops up once more: does the law allow the Police to reach morally desirable results contrary to the wishes of the State? If so, what criteria must the Police apply when deciding which laws to apply taking into consideration morality?
A view propounded by positivists is that seeing law as essentially moral is likely to lead to either of two pathologies. Firstly, it may lead to authoritarianism, because people will suppose that whatever law is on the books is therefore just, and thus blindly obey it. Alternatively, it may lead to anarchy, as people suppose themselves to be the appropriate judges of whether or not to obey the laws of the day. In a state like ours where Constitutional Supremacy reigns supreme one is accorded two constitutional remedies in the event that one is of the opinion that a law is unjust or unconstitutional. In terms of Article 25 of the Constitution one can approach the High Court to have such a law declared unconstitutional or lobby Parliament to repeal in toto a specific law or amend the law in question. When exercising the right provided for under Article 25 of the Constitution one must be cognisant of the principle of approaching the Court with a clean pair of hands.
Where do all these laws the Police vow to uphold come from and what gives them validity? The laws were written by elected politicians and derive their validity from the Constitution by virtue of Article 44 which article vests the power to pass laws in the Legislature as well as Article 140 which provides that all laws in force at the date of independence shall remain in force until repealed or amended by an Act of Parliament or until they are declared unconstitutional by a competent Court.
By active or passive consent, the majority of the population has entered into a social contract with each other to agree to give politicians the authority to pass laws. It’s not the place of the Police to question the law or to cherry pick which laws to apply selectively. If that were to be the order of the day surely we will be well on our way to becoming a police state. The viewing of the Police with eyes of suspicion and antipathy, in my opinion, is neither here nor there.
Instead of viewing the Police with a sense of suspicion and antipathy, we should rather, as Namibians work in concert and unison, not only with the Police but with all law enforcement agents. Let’s all unite and decry evil vices such as poverty, unemployment and crime, to mention but a few and find durable and workable solutions to the social ills confronting this country. If we as a nation fail to put heads together and find solutions to our socio-economic problems, then we will remain close (to attaining Vision 2030) as Namibia is to Alaska.
* Salom H. Haidula is a Police officer who holds a B-Juris, LLB (Honours).