Issue Addressed:
On March 21, 1990, the Republic of Namibia became independent from South African rule after 74 years. The new constitution contained various provisions related to freedom of speech, press, assembly, association, and religion. The constitution laid out foundational values for police work, but did not mandate who would act as police. During a brief period of time in 1990, there was a police force consisting of former South West African People Organization (SWAPO) guerrillas who were responsible for patrol and police responsibilities on the northern border. However, this police force was disbanded in August 1990 when it was charged with serious human rights violations. As a result, the new nation needed a law governing the creation of a police force.
Summary of the Act:
This Act regulated the police force in Namibia. Under Chapter I, the Act regulates the establishment and organization of the police force called the Namibian Police. The Inspector General will command of the Police Force with the power to make necessary rules and appoint people to be members of the Force. The Act also provides rules on resignation of officers, discharge of members due to ill-health, discharge or reduction of rank due to inefficiency, and discharge of members due to long absence without leave. Additionally, the Act provides for the employment of the force during times of emergency and the creation of a reserve police force including the appointment and discharge of temporary members.
Chapter II focuses on the functions of the police force as well as the duties and powers of the members. According to Chapter II, the purpose of the police force is to preserve the internal security of Namibia, maintain law and order, investigate any offense or alleged offense, and the prevention of crime. The Act outlines the duties of the police force member ranging from when a member can enter premises during fire to traffic barriers.
Chapter III focuses on discipline. If a police force member contravenes the act, then the member is guilty of an offense and subject to a fine not more than R2000 or imprisonment of no more than 6 months. Additionally, the act lays out disciplinary proceedings against non-officers and rules surrounding misconduct of officers. The board can subpoena witnesses to help ascertain the truth during disciplinary proceedings. Finally, at any disciplinary proceeding, the member may be assisted and represented by his or her legal advisor.
Finally, Chapter IV has some more general provisions. All members of the reserve force shall be paid salaries and all members could receive a reward for extraordinary diligence or devotion. The President may also establish medals to reward members of the force for their exceptional services. Additionally, the Act contains provisions about whether missing members of the force receive wages while they are missing. Any person who wears any uniform or clothes similar to the force’s uniform is subject to a fine and anyone who interfere with a force member’s duties shall be guilty of an offense and subject to a fine.
Analysis:
Most of the definitions for this Act are vague and circular. Rather than defining different terms, most of the definitions use the defined term in the definition. Although most terms are relatively simple, the circular nature of the definition only add ambiguity rather than clarity to the definitions.
For misconduct of officers in Section 18, the Inspector General may appoint a board to investigate the charge in question. However, the board consists of one or more officers of equal or higher rank than the officer charged. Thus, there is no independent mechanism to investigate officer’s misconduct. This could lead to problem holding police members accountable for any misconduct as camaraderie between force members could affect the board’s ability to complete a rigorous and complete investigation. This is particularly a concern for extremely highly ranked officer charged with misconduct. In that case, there might not be many higher ranked officers who could serve on the board and any high ranked officers that could serve are almost guaranteed to have some type of relationship with the charged force member. Additionally, given the previous history of human rights violations in the force preceding this one, an independent mechanism to hold officers accountable is extremely important.
Some of the provisions include specific fine amounts. There is no ability to raise these fines based on inflation without having to amend the entire Act.
Under Section 6, the Inspector-General shall only resign after consultation with the president. This puts a lot of power in the executive branch and reduces the likelihood that the inspector general could resign in protest or threaten to do so based on some action that the president has taken. Additionally, there is no section stating how the inspector general is removed after appointed. Given the history of human rights violations of the original police force, this is important detail to hold the police force accountable and change the culture.
Additionally, the police force's mandate is a little vague. Although section 13 outlines functions of the force, there is no detail behind these clauses. For instance, the preservation of the internal security of Namibia could be used to lock the country down into an authoritative state for “internal security”. Police powers in general are considered very general powers and the language does not provide any type of limits of boundaries for this power. Although Namibia’s recent constitution pushes human rights culture, this broad transfer of power without limitation is susceptible to abuse if the wrong people are in power.