Time for a Constitutional Court

Namibia’s Judiciary Stands as a pillar of our democracy, yet it lacks a dedicated constitutional court to robustly safeguard fundamental rights against fleeting political majorities.

While our Supreme Court admirably handles constitutional matters under article 79 of the Constitution, the absence of a specialised court exposes minorities to the counter-majoritarian dilemma, where democratic majoritarianism risks trampling individual liberties in favour of popular sentiment.

Laws must speak to current realities and evolve with the society they serve, adapting to diverse lived experiences rather than fossilising outdated norms.

In democratic systems, this tension is acutely felt when unelected judges must override the will of elected majorities to protect entrenched rights.

Without a dedicated constitutional court, rulings on divisive issues like lesbian, gay, bisexual, transgender, queer, intersex and others (LGBTQI+) rights, prostitution decriminalisation, and polygamy often defer to conservative majoritarian views.

For instance, persistent sodomy laws reflect how popular morality can override constitutional equality guarantees, leaving sexual minorities vulnerable.

Even progressive Supreme Court rulings, such as the 2023 recognition of foreign same-sex marriages, face swift legislative reversal.

Namibia’s democracy often converges social interests around traditional norms, rendering it unfavourable to minorities.

The newly gazetted Marriage Act of 2024, which defines marriage as a union between two persons of the opposite sex, directly contradicts the Supreme Court’s equality-based directive.

This illustrates a preference for ‘rule by law’ over the ‘rule of law’, where parliament uses its power to nullify judicial progress.

Such majoritarian capture betrays the promise of fair treatment without discrimination as demanded by article 10.

Pure majoritarian democracy inherently disadvantages minorities, as elected bodies respond to voter blocs rather than universal rights.

Historical parallels, like South Africa’s constitutional court striking down discriminatory laws, prove that specialised courts ensure equal dignity.

Namibia must establish a constitutional court through an amendment, modelled on systems in South Africa or Kenya. This expert body would depoliticise rulings and insulate rights from easy overrides.

As the founder of the Tangi Justice and Hope Foundation, I urge the parliament, the Law Reform and Development Commission, and civil society to champion this reform.

Introducing a constitutional court is not anti-democratic; it is the ultimate guardian of democracy, ensuring laws reflect living realities. The time for bold judicial innovation is now to ensure no voice is silenced by majority shadows.

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