A constructive interpretation of the Namibian Constitution : transposing Dworkin to Namibia’s constitutional jurisprudence

• Author: Kenneth Ferdie Mundia
• DOI: 10.10520/EJC-c6bf118d4
• Published date: 01 January 2016
• Date: 01 January 2016
• Record Number: sapr1_v31_n1_a5
• Pages: 73-90

73

ARTICLE

A CONSTRUCTIVE INTERPRETATION OF THE

NAMIBIAN CONSTITUTION: TRANSPOSING

DWORKIN TO NAMIBIA’S CONSTITUTIONAL

JURISPRUDENCE

Kenneth Ferdie Mundia*

ABSTRACT

This article aims to recommend a moral reading of the Namibian Constitution, one based on

Dworkin’s theory of ‘constructive interpretation’ and ‘law as integrity’. To this end, I argue for

the application of Dworkin’s theory in interpreting the Namibian Constitution. It is submitted

that the attainment of social justice for all Namibians is at the heart of Namibia’s constitutional

project, hence the constitutional promise of ‘securing to all our citizens justice, liberty,

equality and fraternity’. This paper addresses two concerns: rstly, the fact that the Namibian

Constitution does not include socio-economic rights − the question is how to respond to

this problem. I argue that by applying Dworkin’s theory of law as integrity and because

the Constitution includes social justice as a broad principle, it would be consistent to use

the Constitution to address socio-economic inequality through constructive interpretation.

Secondly, the Supreme Court of Namibia has not done too well in ‘hard cases’ and its

approach is inadequate for the realisation of the transformative aims of the Constitution.

1. INTRODUCTION

The attainment of social transformation is at the heart of Namibia’s constitutional

project. The Constitution promises to build a society founded on respect for the rule

of law, democracy, respect for human dignity and equality. In this article I address

two challenges to Namibia’s constitutional project: rst, the fact that the Namibian

Constitution does not include socio-economic rights − the question is how to respond

to this problem. In this paper I call for a moral reading of the Namibian Constitution,

* LLD (UP); LLM (UFS); LLB (UKZN); BA Theology (Andrews University): Head of Department,

Public Law and Jurisprudence, University of Namibia.

https://doi.org/10.25159/2219-6412/2686

ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

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Volume 31 | Number 1 | 2016 | pp. 73–90

74

Mundia A Constructive Interpretation of the Namibian Constitution

one based on Dworkin’s1 theory of ‘constructive interpretation’ and ‘law as integrity’.

My argument is that by applying Dworkin and because the Constitution includes social

justice as a broad principle, using the Constitution to address socio-economic inequality

through ‘constructive interpretation’ should be done consistently. Secondly, the Supreme

Court of Namibia’s current approach to constitutional interpretation is inadequate for the

realisation of the transformative aims of the Constitution. While Namibian independence

and the ushering in of a new legal order based on constitutional supremacy are justly

celebrated, it is suggested that there may be a danger of reading too narrowly what has

been entrenched in the Constitution, falling back into legal positivism.

Assuming that the Namibian Constitution2 is a transformative document in limited

areas of civil and political rights, Dworkin’s interpretive methodology of ‘constructive

interpretation’ and ‘law as integrity’ can assist the Supreme Court of Namibia in its

interpretation of the Constitution. Of course, there are many who do not agree with

Dworkin and some are positively hostile to him.3 My claim is underpinned by the

assumption that the Namibian Constitution is committed to effecting social transformation

on the basis of human dignity and equality as announced in its preamble and substantive

provisions. Through Dworkin’s approach of ‘constructive interpretation’ and ‘law as

integrity’ Namibia’s civil and political rights could be interpreted to include socio-

economic transformation. I argue that if indeed social transformation is an underlying

principle of the Namibian Constitution, law as integrity would mean that rights such as

equality, dignity, and their underlying values should be interpreted so as to give effect to

socio-economic transformation as well. This transformation is against the backdrop of

the fact that at independence a new legal order was established with the adoption of the

Constitution. Assuredly, there are real possibilities for a thriving Dworkinian industry in

Namibia as a result of constitutional dispensation ushered in at independence. Dworkin’s

methodology of ‘constructive interpretation’ and ‘law as integrity’ in my opinion is the

1 Ronald Dworkin was arguably one of the most original legal philosophers and public intellectuals

in the English-speaking world. His theory of law as integrity, in which judges interpret the law in

terms of consistent and communal moral principles, especially justice and fairness, is among the most

inuential contemporary theories about the nature of law.

2 The Constitution of the Republic of Namibia Act No 1 of 1990.

3 See, for example, Brian Leiter, ‘The End of the Empire: Dworkin and Jurisprudence in the 21st

Century’ (2004) 36 Rutgers Law Journal 165, 165–166 (Dworkin’s contribution to jurisprudence

and its signicance is played down and that it ‘is implausible, badly argued for, and largely without

philosophical merit’). A similar opinion is expressed by Thom Brooks, ‘Book Review’ (2006) 69

Modern Law Review 140, 142. See also Larry Alexander, ‘Striking back at the Empire’ (1987) 6 Law

and Philosophy 419; Jules Coleman, The Practice of Legal Principle: In Defence of a Pragmatist

Approach to Legal Theory (Oxford University Press 2001) 105 184–185. See also Julie Dickson,

Evaluation and Legal Theory (Hart Publishing 2001) 22–23 and (n 31); Herbert Hart, The Concept of

Law (Oxford University Press 1961) 240–41; Michael Moore, Educating Oneself in Public: Critical

Essays in Jurisprudence (Oxford University Press 2000) 104, 306; Matthew Kramer, In Defence of

Legal Positivism: Law without Trimmings (Oxford University Press 1999) 128; John Gardner, ‘The

Legality of Law’ (2004) Ratio Juris 369, 373.