Академический Документы
Профессиональный Документы
Культура Документы
1 2
especially in opting for a specific hermeneutical pretext, in this case, classical judgments of the Courts are based on political theory that is not to be found in
liberal political theory. the Constitution, or when the Constitutional principles are not what the Party
Lastly, the authors pose Creole liberalism as the hermeneutical key to perceived the to be at the sittings of the Constituent Assembly10, the politicians
unlock the Constitution. While they obviously have a personal preference for and the people feel they are cheated by the system.11
7 8
Creole liberalism, their choice is posed by the Constitution itself.
Three useful insights of Woolman and Davis on the one hand and Klare
are important when we look ar Naibian judgments:
- Klare’s thesis that the literal interpreters are no less political than those
who work with a value-based hermeneutics;
- Both Klare and Woolman and Davis’ theses that political theory often
operates as a pretext or hermeneutical a priori in constitutional
interpretation; and
- Woolman and Davis’ insistence that value based judgments are not
discretionary decisions as suggested by post-modernist theorists.
Applying these insights to the Namibian Constitution, it can assist analysts
to understand the opposing views, both of the interpretations of the
professionals, the High and Supreme Court of Namibia, and that of the lay
interpreters, especially the politicians, as opposing political theory rather than a
mere difference of hermeneutics.
The legal debate between the literalists and the value-based interpreters (if
one can call the criticism of the Supreme Court under Chief Justice Mahomed
and the aggressive responses of Justice Brian O’ Linn in his judgments a
debate), of the 1990’s has always been superficial. Applying the insights above
10
to the Namibian situation, can clarify the issue and lift the debate. See the reaction of the SWAPO Party to the judgment of Justice Levy in the first Franck case in
the High Court f Namibia. When Judge Levy ruled in the High Court that permanent same sex
The insights of Woolman and Davis can also assist the analyst to discover relations are recognized by law, Home Affairs minister Jerry Ekandjo commented that the
SWAPO Party never intended to protect homosexuals or lesbians by including the word sex in the
the real frustrations of the lay interpreters, specifically the politicians of the ruling non-discriminatory clause.
11
The so-called moral majority in the United States constantly complain that “reactionary judges”
party. It is bad enough when the application of Constitutional principles frustrates interpret the American Constitution with a liberal framework that the founding fathers never
st
the clear will of the majority party 9 , or the democratic process. When the intended and that the majority of the people in 21 century USA do not want and do not condone.
In an talk show on the TV programme Praise the Lord, broadcast on Trinity Broadcasting Network
Africa on 15 October 2004 at 23h00, Christian celebrity Pat Boone interviewed several Christian
leaders. The intention of the programme was clearly to encourage conservative evangelical
7 th
They propose Creole liberalism as the response to the great ideologies of the 20 Century. See Christians to vote for Pres. Busch in the upcoming elections. Almost every speaker complained
ibid., n106, p. 395. about reactionary judges, a political-inspired bench and the system denying the majority their
8
Ibid., p.400 ff. democratic right to determine policy on issues like same sex marriages, abortion, the name of
9
See the discussion of the Kleynhans case. God in the Pledge of Alliance and prayer in schools and other government institutions.
3 4