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Laws of Namibia – Global Legal Collection Highlights

This post is part of our Global Legal Collection Highlights series in which we provide information on some of the foreign law materials available to researchers at the Library of Congress.

March 21, 2015, marks the 25th anniversary of Namibia’s independence.  Namibia, which gained its independence on March 21, 1990, is Africa’s third-youngest nation next to South Sudan (2011) and Eritrea (1993).  Namibia was colonized and occupied by foreign powers for over a century: First by Germany (1884-1915, during which it was known as German South-West Africa) and then by South Africa (1915-1989).  The South African occupation was initially legitimate, having occurred under a League of Nations mandate.  However, when the United Nations General Assembly (UNGA) terminated this mandate in 1966, South Africa continued its occupation.  During the South African occupation the country continued to be called South-West Africa, despite the fact that, in 1968, the UNGA changed its name to Namibia.

German Rule

The German colonial period, while relatively short, was marred with brutality.  Although representatives of its interests arrived earlier, Germany formally announced that the territory that later became Namibia was under its protection in 1884.  Soon after, through an 1886 treaty with Portugal and an 1890 treaty with Britain, Namibia’s territory took shape.

A large sign in the entrance hall to the displays on independence at the national museum. Photo by Flickr user Johanna Wilkie, June 7, 2009. Used under Creative Commons License, https://creativecommons.org/licenses/by-nc-sa/2.0/.

A large sign in the entrance hall to the displays on independence at the national museum. Photo by Flickr user Johanna Wilkie, June 7, 2009. Used under Creative Commons License, https://creativecommons.org/licenses/by-nc-sa/2.0/.

Germany ruled Namibia by decree.  For instance, under an 1896 Imperial Ordinance, rules regarding criminal jurisdiction over natives in Namibia were put in place (at p. 152).  This law stated that “Criminal Jurisdiction and Procedure in the case of coloured population are exercised by the Governor.  In the Various Districts the Bezirksamtmann or independent Chief of the District…takes the place of Governor.”  Punishments handed down under these rules included “[c]orporal punishment (flogging and canning), fine, imprisonment with hard labour, imprisonment in irons, [and] death.”  These rules were used widely; for instance, in a span of a little over a year in 1913-1914, over 4,300 natives were convicted for various offenses, including “negligence,” “disobedience,” and “laziness,” and close to 700 of them were subjected to corporal punishment (Oermann, at p. 175).  This was the case despite the fact that corporal punishment had been banned in Prussia in 1848 and in the German Reich in 1901 (with limited use in schools and jails for disciplinary purposes) (Oermann, at p. 172).

One of the most significant events during the German colonial period is said to have been the response of Germany to the resistance of the Herero and Nama people in 1904-1906, during which 65,000 people are estimated to have been killed.  Some sources indicate that this accounted for the deaths of 80% of the total members of the Herero group and 50% of the members of the Nema group (Oermann, at p. 171).  In 2012, the German parliament voted against a motion to officially acknowledge these events as genocide.

South African Occupation

The German rule of Namibia came to an abrupt end in 1915 following the defeat of German forces in the territory by South African forces, who were personally led by President Louis Botha.  The League of Nations, under article 1919 of the Treaty of Versailles, placed Namibia under South Africa’s mandate, which was given effect through the Treaty of Peace and South-West Africa Mandate Act of 1919.

The same year, South Africa introduced Roman-Dutch law to Namibia through the Administration of Justice Proclamation of 1919.

An item from our collection on Namibia. Photo by Andrew Weber.

An item from our collection on Namibia. Photo by Andrew Weber.

Initially, South Africa afforded a segment of Namibia’s population a degree of autonomy.  For instance, for the purposes of allowing the white population in the jurisdiction to administer the country’s affairs, the 1925 Constitution of Namibia (No. 42) of Namibia provided for an Administrator (appointed by South Africa), an Executive Committee (whose members consisted of the Administrator and four members elected by the legislature), and a Legislative Assembly (with jurisdiction to legislate on a variety of issues except those that were permanently (section 26) or temporarily (section 27) reserved).  Among the reserved matters was the issue of native affairs.

However, starting in 1946, South Africa took a series of actions to move “towards the incorporation of Namibia into the Union of South Africa.”  For instance, in 1949, South Africa enacted a law, South-West Africa Affairs Amendment Act of 1949, giving Namibia, much like its own provinces, representation in the parliament of Union of South Africa.  Similarly, in 1956, it enacted another law transferring the administration of native affairs, which until then had been under the jurisdiction of the Governor-General, to the South African Minister of Native Affairs via the South-West Africa Native Administration Act of 1954.

Following a 1964 study by the Commission of Inquiry into South West African Affairs, in 1968 South Africa introduced the policy of apartheid to Namibia.  It did this by enacting two laws, the first of which was the Self Government for Natives Act of 1968.  This law created six semi-autonomous, segregated “native nations” with their own legislative and executive bodies.  The second was the South-West Africa Affairs Act of 1969.  This Act repealed a provision in the South West Africa Constitution Act of 1968 (No. 39), which authorized the Administrator to carry out various administrative functions in Namibia.  It also diminished the legislative jurisdiction of the Legislative Assembly by expanding the reserved matters list.  Further, it essentially authorized the South African president to issue a proclamation making any law in South Africa applicable to, including by repeal, any law in force in Namibia.

During this period, South Africa came under a lot of external and internal pressures to grant Namibia independence.  For instance, as noted above, in 1966, the UNGA terminated South Africa’s mandate in Namibia.  The UNGA also passed a number of resolutions condemning South Africa for its continuing occupation of Namibia and calling for it to end.  Following the termination of South Africa’s mandate in Namibia, in 1966 the South West Africa People’s Organization (SWAPO), which was founded in 1960, began an armed struggle for independence.  In 1973, the UNGA recognized SWAPO as “the sole and authentic representative of the Namibian People.”

Finally, in 1977, South Africa enacted the South-West Africa Constitution Amendment Act of 1977, which began a process to end its occupation.  This law authorized the South African President to “make laws for [South West Africa] with a view to the eventual attainment of independence by the said territory.”  In September 1978, the U.N. Security Council passed a resolution (No. 435), outlining a framework for securing Namibia’s independence, which the South African government eventually accepted.  This led to elections in 1989, which SWAPO won with 57.3% of the votes, and the independence of Namibia in 1990.

Law Library Collection

Its colonial history, as is the case in most African countries, has left a lasting mark on Namibia’s legal system.  The sources of law in Namibia are illustrative of this fact; they include Roman-Dutch law, English common law, and legislation consisting of German and South African laws (Amoo, at p. 55).  The Law Library holds various primary resources on Namibia.  These include:

Our holdings also include extensive primary South African sources, many of which were (and some of which remain) applicable (section 140) to Namibia long after its independence.  In addition, our holdings on Namibia include a number of secondary sources.  The following are examples of some of the more recent additions to the collection:

You can browse the entire collection on Namibia by going to the Library of Congress online catalog.  If you have any questions or need reference assistance on any  issue regarding Namibian law, you are welcome to submit a request to the Law Library through the “Ask A Librarian” page on our website.

Happy Independence Day, Namibia!

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