Subscribe | Contact Us | About Us | Post Classified Ad

Namibia does not legally constitute Caprivi Strip

Edwin M Samati

Frederick Douglass, a leader of an abolitionist movement against slavery in America once said “I prefer to be true to myself, even at the hazard of incurring the ridicule of others, rather than to be false, and to incur my own abhorrence.” Douglass is no more, and so is slavery of his time.

Firstly, we should all appreciate the fact that there is a difference between an idea and a fact. We also need to know that the argument that Namibia does not legally constitute Caprivi Strip is not a political idea but a legal fact or a question of law.

However, it is real that there exists a political idea separate from the legal fact stated above. This political idea is an opinion suggesting that Caprivians have the right and capacity to govern themselves, and should be given that opportunity if they so wish.

Let us appreciate that there is nothing wrong or illegal with conceiving, believing and peacefully promoting the political idea above, because it is part of civilization and a natural right. Caprivians with such an idea should not feel negative about themselves or allow anyone to demean or intimidate them.

It is civil and virtuous to seek freedom when you feel oppressed. There is no error or mistake in doing so. It is even more civil and virtuous to propose dialogue or referendum as peaceful methods to achieve freedom or reach consensus.

On the contrary, it is barbaric to reject suggestions of dialogue and referendum over a political dispute, and even more primitive to deny others their right to self determination.

Giving a political answer to a question of law is a serious error, and so is to avoid a political question by wrongly interpreting the law. This is treacherous and unethical especially when there are lives trapped in prison and foreign lands, some lives lost and other people cruelly tortured, because of such a wrongly answered or deliberately avoided question.

During the Constituent Assembly deliberations, on December 6, 1989, Mr.Zedekia Mujoro of Namibia National Front (NNF) proposed that “In view of the high stakes involved… the constitution expressly provides that Namibia comprises the territory defined… as the mandated Territory of South West Africa… and that it includes the harbour and port of Walvis Bay, the Caprivi Zipfel…”

This shows that there was a proposal or an effort to include Caprivi Zipfel in Article 1(4) as part of the Namibian territory, but the approved (adopted) territory or Constitution of Namibia never made reference to the mandated territory of South West Africa and never expressly included Caprivi Zipfel.

Literally, Namibia’s territory is simply and only that which is plainly expressed and ordinarily meant in Article 1(4), without any addition or subtraction. It does not include Caprivi Strip. This is the Constitution Mishake Muyongo signed. According to the statutory interpretation rule “Expression Unius Est Exclusion Alterius”, the express mention of one or more things is the exclusion of another.

Why didn’t the drafters of the Constitution mention Caprivi Strip as they did with Walvisbay if they intended to include it in this legislation, especially given the CANU-SWAPO background, the Caprivian revolts of 1965 and the basis of Muyongo (and CANU executive) expulsion from SWAPO in 1980?

Historically, Walvisbay and Caprivi Strip were never part of the mandated territory of South West Africa. The mandated territory was the actual colonial territory of SWA (Namibia). According to the uti possidetis principle, an independent country should be confined within the exact colonial boundaries of the predecessor state.

It is logical and obvious that the implication which would arise for not expressly including Walvisbay and the enclave (Rehoboth) as an integral part of the territory of Namibia is surely the same for Caprivi Strip.

Besides, in 1908, High Court in Windhoek failed to convict suspected poachers who were caught and arrested in Caprivi Strip, because Germany Law had no validity in Caprivi Strip. In other words, Caprivi Strip was not part of German South West Africa, hence, high court had no jurisdiction to prosecute for crimes committed in Caprivi Strip.

Right now, it is becoming common knowledge that there is no proper boundary between Botswana and Namibia, in strict legal terms. This is why Mayeyi Chief, Boniface Shufu, a week ago implored Government to speed up the process of demarcating the boundary between Caprivi Strip and Botswana.

We should ask ourselves, as to what the implication is if there’s no clear and proper boundary between Botswana and Caprivi Strip as stated first in a judgement on Kasikili Island dispute by the International Court of Justice (ICJ) in 1998 and recently by Chief Shufu of Bayeyi in his statement at Batsara Festival on 4 August 2019.

The same arguments and legal facts with which Botswana argued, and convinced the ICJ to rule in its favour on the Kasikili Island dispute, applies to the entire Caprivi Strip. The premise is, if Kasikili Island is naturally part of Caprivi Strip, and Kasikili Island is not part of Namibia, so is the entire Caprivi Strip.

In 2016, CCG requested the African Commission on Human and People’s Rights (ACHPR) to advise Namibia not to proceed with the boundary treaty with Botswana because such a treaty would become an instrument to claim sovereign rights over Caprivi Strip which Namibia currently doesn’t have.

The request above was granted, and the status quo ante, that there is no legal boundary between Botswana and Caprivi Strip, and that Caprivi Strip is legally not part of Namibia remains, until decision is made on the question of law the ACHPR.

Edwin M Samati

Caprivi Strip

 

%d bloggers like this: