A delicate balance : equality, non-discrimination and affirmative action in Namibian constitutional law, as compared to South African and U.S. constitutional law

[摘要] ENGLISH ABSTRACT:This thesis examines the constitutional law of equality, non-discrimination andaffirmative action in Namibia, and compares it to that of South Africa and the UnitedStates. Namibian judicial interpretation in these areas seeks to balance the need tosafeguard the internationally recognized human rights that the Namibian Constitutionguarantees with the need to ensure that Namibian constitutional law is seen asgrounded in Namibia's historical experience and culture. This latter imperativederives from the Namibian Constitution's origins in an international negotiationprocess, which has led to some popular criticism of the Constitution as foreign andimposed. As a result, Namibian courts have been careful to ensure that reliance onforeign precedent (where there is no local authority) does not diminish theConstitution's unique character and its suitability to the Namibian situation. To thatend, the Namibian courts have given great weight to the role of current Namibiansocietal values in constitutional interpretation. In the areas of equality, nondiscriminationand affirmative action, Namibian courts have generally followed theSouth African approach, except with respect to discrimination on the basis of sexualorientation. The author concludes that the adoption of the South African approachgenerally makes sense for Namibia, and specifically criticizes the Namibian courts'approach to sexual orientation discrimination.The statutes enacted in Namibia to carry out the Constitution's equality and nondiscriminationguarantees, including in the area of affirmative action, are alsoconsidered. While these statutes have not yet been subject to judicial interpretation, itseems likely that future cases presenting issues arising under these statutes willnecessitate the same balancing referred to above.The thesis begins with an overview of each Constitution's textual treatment ofequality, non-discrimination and affirmative action, and a discussion comparing thebackground and basic structure of the three Constitutions. It then focuses on thejudicial and legislative interpretation of the concepts of equality and nondiscriminationin Namibia, as compared to that in South Africa and the US.Following that, the author discusses the judicial and legislative interpretation of theconcept of affirmative action in Namibia, also as compared to that in South Africa andthe United States. The thesis ends with the author's conclusions and some predictionsas to how the Namibian courts might rule on certain issues that seem likely to arise inthese areas in the future.

[发布机构] Stellenbosch University