Masters Degrees (DPPL)

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A study of extradition law of Namibia in the context of the constitution
(University of Namibia, 2004) Mbundu, George Ndaile
This study is mainly based on literature review of domestic extradition legislation and the Namibian constitution, extradition legislation from selected foreign jurisdictions, works of learned international writers on the subject as well as the analysis of judicial decisions on selected local and foreign reported cases. The study includes a brief comparative analysis of extradition legislation of the Republic of South Africa, the United Kingdom and that of Canada.
A study of extradition law of Namibia in the context of the constitution
(2004) Mbundu, George Ndaile
The reforming of the electricity supply industry
(2005) Jacobs, Foibe L.
The reforming of the electricity supply industry: Competition and regulation: An analysis of ESI reforms in Namibia
(University of Namibia, 2005) Jacobs, Foibe L.
This study enquires into the choices to be made when selecting and implementing a reform model for the electricity industry. It argues that the appropriate reform model depends on the circumstances in the considered jurisdiction. Especially in small and less developed electricity systems a dilemma may emerge: the technical circumstances suggest the implementation of a model with few competitive elements, whereas political circumstances urge for a competition-oriented model. Hence, especially in small systems, a delicate trade-off emerges that significantly complicates the decisions to be made. This is obviously relevant for Namibia. There are no standard answers to complicated questions of reforming markets. The implications of these reforms and implementation strategies for transparency in the regulatory systems, and improving accessibility of electricity, are yet to be seen. The study has identified the drivers of reform which are different from developed to developing states. It has also proven that successful reforms require an understanding of the source of monopoly power in the industry, as well as the size and characteristics of the market. It requires a transparent and clear regulatory framework capable of separating each role of the stakeholders clearly, separating competitive elements from natural monopoly elements. Significantly, the study has analysed the relevant laws and regulations. The relevant provisions of the Namibian Constitutions in particular, have been discussed under appropriate headings. Special emphasis has been placed on the Electricity Act of 2000, the Competition Act of 2003 and the White Paper on Energy of 1998. The powers, duties and functions of the Electricity Control Board and other regulators particularly in SADC have been critically analysed. An enquiry has also been made into the purposed Gas Regulatory Authority as well as the Water Regulator. The Study has suggested clear recommendations on the legislation which require amendment.
General deterrence as a satisfactory justification for punishment
(2005) Noa, Paulus
It is a universal phenomenon that peace, law and order only exist where justice prevails. Justice is an ingredient of the rule of law. In Namibia crime has become a topical issue. The nation focuses its attention and its fears on the threat of crime. Rights which are guaranteed by the law particularly in the Constitution of the Republic of Namibia such as a right to liberty; to own property and right to dignity are violated by offenders with impunity. For many, the criminal justice system has become soft on crime. It seems deterrent punishments are no longer imposed by the courts. Courts have apparently lost sight of the fact that the law does not only protect the rights of accused and convicted persons, but also those victims of crime. Restorative justice has not found emphasis in the punishment meted out by the courts. The legislature has done little in enacting legislations for the more effective combating of crimes in the country. When hearing the views canvanced by the public, not even the re-introduction of capital punishment is sparred from the list of proposed solutions to the crime. It is however not possible to re-introduce capital punishment given our current Constitution which outrightly outlaws capital punishment in Article 6. Also canvanced by the public is the re-introduction of corporal punishment which has also been declared unconstitutional by the Supreme Court. The acclaimed African leader, the late and former Tanzanian President Julius Nyerere in his book – Freedom and Socialism 1968 pp 110 – 112 says: “Justice demands many things. It demands that the innocent be assured of personal security and also that the guilty should be punished. It demands impartiality between citizens – that the law should be the same for all. And it demands an understanding by the judiciary of the people and by the people of the judiciary, for without this mutual understanding the people’s basic sense of justice in their relations with each other may be outraged by the very instrument which they have created to implement justice” Motives for punishment have been changing from century to century. During our current century, punishment should be influenced by not only the protection of the fundamental rights of those who have wronged against the law but also those whose rights have been violated by the offenders. Certainly the law-abiding citizens country-wide demand drastic and effective action by the State and Judiciary to protect the rights of law-abiding citizens, the victims of crimes and potential victims. This is what the Constitution which is the supreme law provides. Strong measures are necessary to protect the Namibian society. It is recommended in this thesis that the current Criminal Procedure Act be overhauled if not repealed so that a new Namibian Criminal Procedure Act which will underline the need for the courts to serve justice is enacted. The new Act should make provision for life imprisonment with the possibility of remission, parole or probation as well as life imprisonment without the possibility of remission, parole or probation depending upon the gravity of the crime committed. Mandatory minimum sentences should be provided for, for serious crimes such as murder, kidnapping, child stealing and robbery with aggravating circumstances. For those found guilty of fraud or misappropriation of public funds, the Act must make room for the Court to order compensation which shall have the effect of civil judgment. It is also recommended for the reintroduction of whipping on male offenders under the age of 21 years, provided the whipping is inflicted in a moderate manner and proper safeguards are put in place. Legislation should therefore be enacted that makes provisions that victims or their families be accorded the right to bring to court’s attention the harm they have suffered as a result of crimes of violence against the person. The court should be empowered by the law in serous crimes to mero motu ask for victim’s impact statement if the court so desires. It is recommended that the judicial officers should play more active role in their efforts to do justice. Our criminal system should become more inquisitorial rather than adversarial in approach if the criminal system has to live by the letter and spirit of the Namibian Constitution. By the time this research was concluded a new Criminal Procedure Act has been enacted though it has not yet come into operation. It provides for quite a number of issues recommended in this research. Though the new Act is not all encompassing, it has addressed substantial shortcomings in the present Criminal Procedure Act.
The importance of public procurement law to socio-economic development with special reference to Namibia
(University of Namibia, 2005) Maamberua, Usutuaije
This study discusses the importance and relevance of public procurement law to socio-economic development, more specifically in the Namibian context. The discussion therefore contextualizes public procurement law within rational socio-economic considerations, as opposed to the assumption that public procurement is merely a mechanical process. Chapter one deals with the preliminary issues including subject of research, expectation from the research, the problem to be researched, the research question, relevance of the study, hypothesis, data sources and methodology and summary of conclusions. Chapter two introduces the paper, defines public procurement and contextualizes public procurement within the ambit of conceptual issues including normative and positive reasons for government intervention in the procurement market. It highlights and reflects on relevant economic theory relevant to public procurement. In general, the chapter reviews literature on the subject matter. Chapter three provides the background of the economic trends, investment regime and the history of the Tender Board of Namibia. Chapter four discusses the position of Government Procurement Agreement (GPA) within the context of international law. It is posited that Government procurement or as it is alternatively known, “public procurement”, is a very interesting subject matter for the reason that it attracts both national and international attention. Yet it has been on the periphery of international trade law until only in 1 January 1981 when the GATT Government Procurement Agreement (GPA) came into force. Still to date accession to the GPA remains voluntary, because the GPA is one of the WTO “plurilateral” agreements. Hence the interests of developing countries and a model law on procurement are highlighted. For purpose of comparative analysis some elements of the Government Procurement Agreement and of multilateral financial institutions (African Development Bank) procurement systems are discussed in chapter five. In this case, the African Development Bank is used as a point of reference. The reason for choosing the procurement system of the African Development Bank is to juxtapose its experience with developing countries (specifically with that of Namibia in order to avoid over-generalization) because this is one institution that deals with many poor developing countries. How the Namibian procurement system conforms with international standards and proposed changes to the system are discussed in the same chapter. The concluding chapter focuses on the various reasons why government intervenes in the market through public procurement, major reasons among others being market failures; socio-economic imperatives such as social justice; economic empowerment; and industrialization drives. These constitute important criteria used by government to target tenders in order to meet some specific development objectives. It is submitted that the Namibian procurement system complies to some extent with the accepted international standards. However, further areas for improvement include developing arbitration mechanisms, dispute settlement procedures, procurement through electronic system and broadening accessibility of public procurement to the broader populace in the country.
Legal framework in Namibia: An Analysis of the impact of Competition Act, 2003 (Act No.2 of 2003) on investment promotion in Namibia.”
(2005) Chimana, Simana;
The multiliteral trade system and the African regional integration systems: The use of soft law and hard law strategies in the SADC, SACU and COMESA
(University of Namibia, 2006) Murangi, Nokokure
The paper seeks to explore the relationship between the Multilateral Trade System (MTS) and the African Regional Integration System(s)(RIS). This is done through the analysis of norm formation on trade in Regional Integration Systems (RIS). In this analysis, the manner in which the African Regional Integration Systems use the soft and hard law strategies to reproduce themselves institutionally on trade issues is carefully explored . This is done by looking at specific case studies of COMES A, SADC and SACU. This approach will help to reveal the degree of policy awareness and consistency, or lack thereof in the processes that leads to institutional decision-making and outcomes in these Regional Integration Systems. It is the contention of this paper that the African RIS have not sufficiently and efficiently used their own internal institutional processes to allow for a coherent interaction between them and the MTS. In carrying the analysis forward the ' landscape' of tensions and contradictory interactions between the MTS and the RIS is explored. The nexus between the Africa Continental Integration programmes and the RIS programmes is carefully evaluated.
Alternative to state dominated criminal prosecution in Namibia
(2007) Uanivi, Uaatjo
Criminal proceedings, in general, are proceedings which in substance are of a criminal nature, and not of a civil nature and include, inter alia, applications for a stay of prosecution and release from detention, etc. The constitution of the Republic of Namibia protects the rights of all persons including the rights of victims of crime which are also recognised in the United Nations Declaration of Basic Principle of Justice for Victims of Crime and Abuse of Power adopted by the General Assembly in Resolution 40/34 of 29 November 1985. This protection covers rights impaired by the State and/ or individual persons, acts or omissions that are in violation of criminal laws and/or any other law operative and enforceable in Namibia. These rights have to be respected and protected by all organs of government involved in the judicial process, from the moment of the commission of the crime or offence up to and including the completion of the judicial process and/or quasi-judicial process related thereto. Hence, the need to have checks and balance mechanisms with respect to state power and functions in the prosecution process. We have very often witnessed white-collar crimes not being prosecuted in Namibia.
"Water wars"
(2009) Mapaure, Clever; ;
no abstract
Compensation in murder cases
(2009) Nandago, Elina
Abstract provided by author
An analysis of Uukwaluudhi communal conservancy
(2010) Anyola, Prisca; ;
Legal impact of Biofuel (jatropha Curcas) production on communal land in North-East Namibia
(2010) Namwoonde, Emilia-Ndateelela;
Abstract povided by author
A critical assessment of Namibian refugee law in light of global and regional and regional trends of refugee migration
(2010) Groenewaldt, Angelique L.; Horn, N. J
Southern Africa is relatively less affected by refugee movements than for instance, Central Africa, but the impact of refugees on Southern African societies and the increasing retreat of Southern African governments from their responsibilities towards refugees are nonetheless causes for concern. Namibia is a signatory to both the 1951 and AOU Refugees Conventions. In line with its international obligations, the country has promulgated the Namibia Refugees (Recognition and Control) Act 2 of 1999. The Act is designed in accordance with the 1951 and OAU Refugee Conventions, but the country has entered a reservation to Article 26 of the 1951 Refugee Convention that deals with freedom of movement. The fact that the free movement of refugees is restricted means that they cannot seek jobs or earn a living. In addition, restrictions on movements of any person or a group of persons can severely curtail other basic human rights central to the survival of such a person or group of persons. Consequently, and despite, the positive steps taken by the Government of the Republic of Namibia (GRN) in taking ownership and responsibility for persons in refugee like situations, asylum seekers and refugees remain highly vulnerable with no official access to arable land, labour markets, and higher education opportunities due to strict confinement policies. Indeed, the process of identifying durable solutions for the refugee population at Osire, Namibia’s one official refugee shelter, has been slow. This is a cause for concern, especially since the UNHCR intends to scale down its activities worldwide by 2010, a move that will adversely affect the lives of refugees worldwide. In the premise this study seeks to investigate the reception system of asylum seekers as well as the social and economic rights of accepted refugees. Such an assessment is crucial since it establishes whether or not the rights and protection of asylum seekers and refugees should be a renewed concern for the Namibian Legislature. The provisions of the 1951 Refugee Convention, the 1967 Protocol and the OAU Refugee Convention of 1967 are examined and compared with national laws with a view to identifying possible gaps in the national legislative structure. In many developing countries, refugees are denied basic rights, often due to a lack of resources. To this end, a disproportionate amount of energy and resources tends to be focused on determining who is a refugee rather than on their treatment pre-and-post recognition. It remains tragically true that international human rights law has not been permitted to evolve to a state of genuine efficacy in the international as well as national legal arenas. Given that, it is highly unlikely in the present political climate that State Parties would agree to any revision of the 1951 Convention in order to broaden its protective scope, that international human rights law is an effective device available to strengthen and to enhance existing standards. This research also endeavours to identify possible gaps for the protection of other forced migrants and internally displaced persons. Currently environmental and economic migrants are excluded from the definition of a ‘refugee’ in international and most national legal instruments on refugees, including that of Namibia. Consequently it is imperative to explore possible avenues for a broader approach to the understanding of a ‘refugee’. This study found that Namibia’s refugee law is properly in place, but the challenge is clearly in the implementation. Indeed, a generous interpretation of the Refugees Act, read with the two conventions, can go some distance to meeting the needs of at least the most acutely at risk populations outside the borders of their own nation. It is recommended that the legislator adopt and enhance the three traditional durable solutions, namely voluntary repatriation, resettlement and local integration. For some refugees the solution to their dilemma might be voluntary repatriation, but the Namibian government should also consider local integration of, especially long staying refugees who have severed ties with their countries of origin or who are unable to return to their home countries because of a fear of persecution. In the final analysis a combination of the three traditional solutions might prove to be the ultimate durable solution
A critical analysis of the new labour act number 11 of 2007 in light of the law on labour brokerage
(University of Namibia, 2013) Ncube, Jabulani
Labour brokerage is a term used to describe the relationship that exists between labourers, known as contractors or hired employees and the labour brokerage organizations that employ the labourers. The company to which they provide labour is not their employer. The term therefore refers to the situation in which the labour broker provides clients to render services or perform work for the third party that contracts with the labour broker and in return, the third party rewards the labour broker for the services rendered. The case of African Personnel Services (Pty) Ltd v Government of the Republic of Namibia & Others 2009 (2) NR 596 (SC) thus sums up the powerful and painful memories of the abusive “contract labour system” which was part of the obnoxious practices inspired by past policies of racial discrimination. This study thoroughly examined how labour brokerage has polarized the Namibian society as a result of the painful memories it evokes. In light of the Supreme Court`s decision to allow the operation of labour brokerage, albeit within a regulated framework, the study examined in detail the Labour Amendment Act of 2012 enacted on the 1st of August 2012.The regulatory framework is examined by making a comparative analysis of the law on labour brokerage in other jurisdictions. The jurisdictions examined in this study included South Africa, the Netherlands, Australia, the United Kingdom and the Republic of Zimbabwe. The challenges Namibia has faced vis a vis each of these jurisdictions in relation to the regulations were critically analyzed. The study was based on both primary and secondary sources of law which include statutes, conventions, judicial precedent and academic writers. The research found that even though the various jurisdictions including Namibia have faced challenges with the implementation of a uniform regulatory framework, it has been concluded that permitting a system of regulated labour brokerage rather than an outright ban is the best available option. Most of these countries have adopted regulatory frameworks in their respective jurisdictions in compliance with ILO Convention 181 of 1997. The only exceptions are Zimbabwe, which has an outright ban on labour brokerage, and South Africa, which drafted a Labour Amendment Bill in 2012. It is an inescapable conclusion that the regulatory framework in Namibia which has conferred on the temporary employees a degree of permanency has similarities with the South African legislation. It is evident that the regulations comply with the ILO Convention 181 of 1997. The study concludes that this is a positive development in the jurisprudence on labour brokerage in Namibia as it will curtail the abuses and exploitation of temporary employees which was the major concern of its opponents.
Small states and the undercurrents of compliance with international law: The case of Namibia
(University of Namibia, 2017) Mushelenga, Peya
This study examines small states’ compliance with international law, with a specific focus on Namibia. The study is based on the questions whether small states rigorously adhere to international law and whether they are different from large powerful states and what are the consequences for small states’ non-compliance with international law. The study establishes that there are instances of non-compliance with international law by both small and large states, with some large states non-compliance occurring more often compared to small states. It further concludes that measures taken against for non-compliance with international law, like economic sanctions, affect small states more compared to the impact on large states. The study adopted qualitative research methodology using both primary and secondary data collection techniques. Information gathered was analysed and assessed using legal arguments. The study found that Namibia has generally embraced international law as an integral part of its legal system and strictly adheres to it, as illustrated by the Kasikili / Sedudu Island dispute between Namibia and Botswana at the International Court of Justice (ICJ). The study however found that there was a paradigm shift in Namibia’s approach towards international law, in respect of international criminal law. This is illustrated by her stance on the International Criminal Court (ICC) when she espoused selective justice approach manifesting failure and omissions to advocate compliance with international law by leaders indicted by the Court. With regard to the UN enacted laws, the study concludes that where there is non-compliance with international law by both small and large states, large states could violate international law with minimal or no consequences, while small states would face consequences, unless small states that are aligned to large states. Meanwhile, the study found that, as a small state, Namibia cannot afford the consequences of non-compliance with international law and has, therefore, endeavoured to be compliant.
Bail refusal on the basis of public interest and administration of justice in Namibia: A critical appraisal of section 61 of the criminal procedure amendment act 5 of 1991
(University of Namibia, 2019) Konga, Bornface Siseho
Namibia has acceded to various international and regional instruments that guarantee rights to personal liberty and the presumption of innocence which values have been incorporated in the Constitution. However, there is a discontent as to how this right to liberty and presumption of innocence are curtailed in the denial of bail based on public interest and administration of justice which terms are not defined in any act of parliament or the Namibian Constitution. The denial of personal liberty is one of the biggest sanctions that government can impose on an individual. However, the right to liberty should not be interpreted in isolation but in the context of general interest of the public. This research concludes by finding that the denial of bail based on the public interest and administration of justice is well founded but the only shortcoming is the lack of certainty as to what constitutes public interest or administration of justice. The research recommends that in order to provide legal certainty, the Namibian Constitution should incorporate the right to bail just like in other jurisdictions and list grounds upon which a person can be denied bail, as this will inform the accused as to which grounds he or she can rely upon in challenging such a judicial decision.
Improving the procedures for resolving tax disputes in Namibia: A case study on taxpayers' right to a fair hearing within a reasonable time
(University of Namibia, 2019) Hamutumwa, Loide
This dissertation improves the procedures for resolving tax disputes in Namibia. There are procedural, legal and practical loopholes in the Namibian tax system which make it costly and difficult, if not impossible, for a taxpayer to be heard and to be guaranteed procedural propriety during the dispute resolution process. Due to the fact that the Namibian tax dispute resolution system does not have permanent courts and, in most instances, lacks a sufficient number of knowledgeable lawyers and personnel, it has become a common feature of that system that taxpayers are not properly heard during disputes, and if they are heard, this is rarely accomplished in good time. This problem is further exacerbated by the absence of established and accessible guidelines that relate to the tax dispute resolution process and the common and administrative legal rights that apply to fair hearing. By improving the procedures, the study recommend that the Namibian tax dispute resolution system undergoes considerable change, from the composition and structure of the objection review committee, the tax tribunal and the special court to the appointment of competent and permanent staff to be able to devise and implement a grievance handling system that protects taxpayers’ rights. In this desktop research, both primary and secondary sources are reviewed and considered for recommendation. This dissertation argues that the fact that the finalisation of objections, reviews and appeals are not time scheduled, and the use of adhoc tax tribunal and special court, it is possible to encroach the right to be heard within a reasonable time as protected by Article 18 of the Namibian Constitution.
A critical examination of the meaning of the words "ordinarily resident" in article 4 (d) of the Namibian constitution in relation to acquisition of citizenship
(University of Namibia, 2019) Tjiveze, Leonard
The purpose of the study was to critically analyse and examine the definition and meaning of the words “ordinarily resident” as stated in Article 4 (1) (d) of the Namibian Constitution. The crux of the study was to determine who qualifies to benefit from the provisions of this Article of the lex fundamentalis in as far as the acquisition of citizenship is concerned. In a nutshell, the study was an analysis of the two judgments pronounced by the High and Supreme Courts of Namibia in the De Wilde case. The study used a qualitative research method as opposed to a quantitative research method, which involved an extensive and comprehensive research method through books, cases, legislation, legal opinions and the internet. The findings made in this study were made based on documentary material that was available to the researcher, with a comparative analysis of other jurisdictions made with that of Namibia with regard to the acquisition of citizenship based on what is termed as immigrants and/or refugees who would describe their stay as ordinary in the country. The eventual findings and recommendations are based on how the Supreme Court went on to define the words of the Constitution and how the Constitution is to be interpreted, which is to give it a purposive interpretative approach so as to provide protection to as varied a class of people as possible. Whereas the High Court of Namibia found that for one to be ordinarily resident, one must be in possession of a permanent residency permit. This approach was to give administrative bodies and officials an opportunity to establish without undue difficulty whether a person was ordinarily resident in Namibia or not. The High Court of Namibia used a strict literal interpretation of the words “ordinarily resident” and said that a permanent residency permit was the ultimate requirement to lay a claim to Article 4 (1) (d). The Supreme Court on appeal was of the opinion that a person living in Namibia on an employment permit under immigration legislation or enjoying a residency status other than permanent residence is not merely by reason of that fact, excluded from claiming to be ordinarily resident in Namibia as contemplated in Article 4 (1) (d) of the Namibian Constitution. This was because permanent residence was discussed elsewhere in Artcile 4 (8) (c) and could thus not be used interchangeably with the term ordinarily resident. Interpretation of the Constitution should be purposive and value-based.
Evaluation of the Namibian legal framework on money laundering and associated offences
(University of Namibia, 2019) Mbeha, Charles Ntema
The Money laundering offence was identified as such in the late part of the 20th century in the United States of America. Since this period, it has been a crime that has received immense attention for various reasons. This study aims to illustrate that, although the crime has received so much attention over the years, there still exists some areas on the subject matter that still require further research. In this study it is demonstrated that the concept of money laundering is not properly defined. This is exemplified by the different jurisdictions that have been analysed herein, namely; the United States of America, United Kingdom, South Africa, Singapore and Namibia respectively. Furthermore, it is found that diverse authors fail to question the unclear areas that exist within the conceptual framework of money laundering. Similarly, international treaties of the United Nations are no exception to this analysis. The study further discusses the relationship between money laundering and its associated offences and clearly illustrates that it is a crime that does not operate in isolation from other associated offences, and as such this connection needs to be understood by all concerned stakeholders in the fight against it. This is important in order to effectively and progressively combat the crime of money laundering vis-à-vis its associated offences. In assessing its definition, the study illustrates the relationship that is inherent between the crime of money laundering and its associated offences, how this relationship comes about, and why the two go hand in hand. Additionally, the study shows that money laundering is a world-wide problem, and as such it, without doubt, requires world cooperation in order to be appropriately addressed. This study involves two parts. Firstly, desk research (national, international, case law and writings of various authors mostly from the afore-mentioned jurisdictions, amongst others.) Secondly, the study comprises of interviews amongst selected money laundering regulators or officials in Namibia. The participants in these interviews were chosen by way of sampling technique as it would have been impractical to assess the understanding of all stake-holders in Namibia as far as money laundering and its associated offences are concerned. This study does not only display problems that border money laundering and its associated offences, but it also suggests solutions to the identified issues bordering this crime.

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