Protecting the right to personal liberty in Namibia: Constitutional, delictual and comparative perspectives

This article was published in AHRLJ Volume 14 No 2 2014. Although the recent Supreme Court of Namibia cases of Alexander v Minister of Home Affairs & Others and Gawanas v Government of the Republic of Namibia were not merely decided under the Criminal Procedure Act 1977 (Namibia), but in terms of special statutes, namely, the Extradition Act 11 of 1996 and the Mental Health Act 18 of 1973 respectively, they nonetheless involved the determination by the Court of the individual right to personal liberty in terms of article 7 of the Constitution of Namibia of 1990, thus bringing the Court face to face with balancing the right to personal liberty against the public interest in the enforcement of the law. Alexander could properly be described as consisting of two parts: the trial judge’s treatment of the limitation clause in the Namibian Constitution, which survived on appeal, and the Supreme Court judgment which turned on the problem of granting bail in the circumstances of extradition proceedings. While Gawanas is a classic illustration of bureaucratic negligence, both cases involve the protection of personal liberty of the individual as against legislative interference and infringement by the agents of state. The lesson emerging therefrom is that the protection of personal liberty under the Namibian Constitution extends to persons, to citizens, foreigners within Namibia and to someone with some form of disability. The other lesson emanating from this study is that a person whose right to personal liberty or dignity has been infringed can ventilate that breach by way of judicial review, contesting the legality of the law or under the principles of administrative justice in the Constitution or the law of delict, alleging wrongfulness, fault and damage.

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