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Namibia Constitution: Chapter 20

THE LAW IN FORCE AND TRANSITIONAL PROVISION.

Namibia Constitution: Chapter 20

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Article 133 The First National Assembly
Article 134 Election of the First President
Article 135 Implementation of this Constitution
Article 136 Powers of the National Assembly prior to the Election of a National Council
Article 137 Elections of the First Regional Councils and the First National Council
Article 138 Courts and Pending Actions
Article 139 The Judicial Service Commission
Article 140 The Law in force at the Date of Independence
Article 141 Existing Appointments
Article 142 Appointment of the First Chief of the Defence Force, the First Inspector-General of Police and the First Commissioner of Prisons.
Article 143 Existing International Agreements.

Article 133 – The First National Assembly
Notwithstanding the provisions of Article 46 hereof, the Constituent Assembly shall be deemed to have been elected under Articles 46 and 49 hereof, and shall constitute the first National Assembly of Namibia, and its term of office and that of the President shall be deemed to have begun from the date of Independence.

Article 134 – Election of the First President

  1. Notwithstanding the provisions of Article 28 hereof, the first President of Namibia shall be the person elected to that office by the Constituent Assembly by a simple majority of all its members.
  2. The first President of Namibia shall be deemed to have been elected under Article 28 hereof and upon assuming office shall have all the powers, functions, duties and immunities of a President elected under that Article.

Article 135 – Implementation of this Constitution
This Constitution shall be implemented in accordance with the provisions of Schedule 7 hereof.

Article 136 – Powers of the National Assembly prior to the Election of a National Council
1. Until elections for a National Council have been held:

  •  (a) All legislation shall be enacted by the National Assembly as if this Constitution had not made provision for a National Council, and Parliament had consisted exclusively of the National Assembly acting on its own without being subject to the review of the National Council.
  • (b) This Constitution shall be construed as if no functions had been vested by this Constitution in the National Council.
  • (c) Any reference in Articles 29, 56, 75 and 132 hereof to the National Council shall be ignored: provided that nothing contained in this Sub-Article shall be construed as limiting in any way the generality of Sub-Articles (a) and (b) hereof.

2.  Nothing contained in Sub-Article (1) hereof shall detract in any way from the provisions of Chapter 8 or any other provision of this Constitution in so far as they make provision for the establishment of a National Council, elections to the National Council and its functioning after such elections have been held.

Article 137 – Elections of the First Regional Councils and the First National Council
1.  The President shall by Proclamation establish the first Delimitation Commission which shall be constituted in accordance with the provisions of Article 104 (1) hereof, within six (6) months of the date of Independence.

2.  Such Proclamation shall provide for those matters which are referred to in Articles 102 to 106 hereof, shall not be inconsistent with this Constitution and shall require the Delimitation Commission to determine boundaries of regions and Local Authorities for the purpose of holding Local Authority and Regional Council elections.

3.  The Delimitation Commission appointed under such Proclamation shall forthwith commence its work, and shall report to the President within nine (9) months of its appointment: provided that the National Assembly may by resolution and for good cause extend the period within which such report shall be made.

4.  Upon receipt of the report of the Delimitation Commission the President shall as soon as reasonably possible thereafter establish by Proclamation the boundaries of regions and Local Authorities in accordance with the terms of the report.

5. Elections for Local Authorities in terms of Article 111 hereof shall be held on a date to be fixed by the President by Proclamation, which shall be a date within six (6) months of the Proclamation referred to in Sub-Article (4) hereof, or within six (6) months of the date on which the legislation referred to in Article 111 hereof has been enacted, whichever is the later: provided that the National Assembly may by resolution and for good cause extend the period within which such elections shall be held.

6.  Elections for Regional Councils shall be held on a date to be fixed by the President by Proclamation, which shall be a date within one (1) month of the date of the elections referred to in Sub-Article (5) hereof, or within one (1) month of the date on which the legislation referred to in Article 106 (3) hereof has been enacted, whichever is the later: provided that the National Assembly may by resolution and for good cause extend the period within which such elections shall be held.

7. Elections for the first National Council shall be held on a date to be fixed by the President by Proclamation, which shall be a date within one (1) month of the date of the elections referred to in Sub-Article (6) hereof, or within one (1) month of the date on which the legislation referred to in Article 69(2) hereof has been enacted, whichever is the later: provided that the National Assembly may by resolution and for good cause extend the period within which such elections shall be held.

Article 138 – Courts and Pending Actions
1. The Judge-President and other Judges of the Supreme Court of South-West Africa holding office at the date on which this Constitution is adopted by the Constituent Assembly shall be deemed to have been appointed as the Judge-President and Judges of the High Court of Namibia under Article 82 hereof on the date of Independence, and upon making the oath or affirmation of office in the terms set out in Schedule 1 hereof, shall become the first Judge-President and Judges of the High Court of Namibia: provided that if the Judge-President or any such Judges are sixty-five (65) years of age or older on such date, it shall be deemed that their appointments have been extended until the age of seventy (70) in terms of Article 82(4) hereof.

2.

  • (a) The laws in force immediately prior to the date of Independence governing the jurisdiction of Courts within Namibia, the right of audience before such Courts, the manner in which procedure in such Courts shall be conducted and the power and authority of the Judges, Magistrates and other judicial officers, shall remain in force until repealed or amended by Act of Parliament, and all proceedings pending in such Courts at the date of Independence shall be continued as if such Courts had been duly constituted as Courts of the Republic of Namibia when the proceedings were instituted.
  • (b) Any appeal noted to the Appellate Division of the Supreme Court of South Africa against any judgment or order of the Supreme Court of South-West Africa shall be deemed to have been noted to the Supreme Court of Namibia and shall be prosecuted before such Court as if that judgment or order appealed against had been made by the High Court of Namibia and the appeal had been noted to the Supreme Court of Namibia.
  • (c) All criminal prosecutions initiated in Courts within Namibia prior to the date of Independence shall be continued as if such prosecutions had been initiated after the date of Independence in Courts of the Republic of Namibia.
  • (d)  All crimes committed in Namibia prior to the date of Independence which would be crimes according to the law of the Republic of Namibia if it had then existed, shall be deemed to constitute crimes according to the law of the Republic of Namibia, and to be punishable as such in and by the Courts of the Republic of Namibia.

3. Pending the enactment of the legislation contemplated by Article 79 hereof:

  •  (a) the Supreme Court shall have the same jurisdiction to hear and determine appeals from Courts in Namibia as was previously vested in the Appellate Division of the Supreme Court of South Africa.
  • (b) the Supreme Court shall have jurisdiction to hear and determine matters referred to it for a decision by the Attorney-General under this Constitution.
  • (c) all persons having the right of audience before the High Court shall have the right of audience before the Supreme Court.
  • (d) three (3) Judges shall constitute a quorum of the Supreme Court when it hears appeals or deals with matters under Sub-Articles (a) and (b) hereof: provided that if any such Judge dies or becomes unable to act after the hearing of the appeal or such matter has commenced, but prior to judgment, the law applicable in such circumstances to the death or inability of a Judge of the High Court shall apply mutatis mutandis.
  • (c) until rules of the Supreme Court are made by the Chief Justice for the noting and prosecution of appeals and all matters incidental thereto, the rules which regulated appeals from the Supreme Court of South-West Africa to the Appellate Division of the Supreme Court of South Africa, and were in force immediately prior to the date of Independence, shall apply mutatis mutandis.

Article 139 – The Judicial Service Commission

  1. Pending the enactment of legislation as contemplated by Article 85 hereof and the appointment of a Judicial Service Commission there-under, the Judicial Service Commission shall be appointed by the President by Proclamation and shall consist of the Chief Justice, a Judge appointed by the President, the Attorney-General, an advocate nominated by the Bar Council of Namibia and an attorney nominated by the Council of the Law Society of South-West Africa: provided that until the first Chief Justice has been appointed, the President shall appoint a second Judge to be a member of the Judicial Service Commission who shall hold office thereon until the Chief Justice has been appointed. The Judicial Service Commission shall elect from amongst its members at its first meeting the person to preside at its meetings until the Chief Justice has been appointed. The first task of the Judicial Service Commission shall be to make a recommendation to the President with regard to the appointment of the first Chief Justice.
  2. Save as aforesaid the provisions of Article 85 hereof shall apply to the functioning of the Judicial Service Commission appointed under Sub-Article (1) hereof, which shall have all the powers vested in the Judicial Service Commission by this Constitution.

Article 140 – The Law in Force at the Date of Independence

  1. Subject to the provisions of this Constitution, all laws which were in force immediately before the date of Independence shall remain in force until repealed or amended by Act of Parliament or until they are declared unconstitutional by a competent Court.
  2. Any powers vested by such laws in the Government, or in a Minister or other official of the Republic of South Africa shall be deemed to vest in the Government of the Republic of Namibia or in a corresponding Minister or official of the Government of the Republic of Namibia, and all powers, duties and functions which so vested in the Government Service Commission, shall vest in the Public Service Commission referred to in Article 112 hereof.
  3. Anything done under such laws prior to the date of Independence by the Government, or by a Minister or other official of the Republic of South Africa shall be deemed to have been done by the Government of the Republic of Namibia or by a corresponding Minister or official of the Government of the Republic of Namibia, unless such action is subsequently repudiated by an Act of Parliament, and anything so done by the Government Service Commission shall be deemed to have been done by the Public Service Commission referred to in Article 112 hereof, unless it is determined otherwise by an Act of Parliament.
  4. Any reference in such laws to the President, the Government, a Minister or other official or institution in the Republic of South Africa shall be deemed to be a reference to the President of Namibia or to a corresponding Minister, official or institution in the Republic of Namibia and any reference to the Government Service Commission or the government service, shall be construed as a reference to the Public Service Commission referred to in Article 112 hereof or the public service of Namibia.
  5. For the purposes of this Article the Government of the Republic of South Africa shall be deemed to include the Administration of the Administrator-General appointed by the Government of South Africa to administer Namibia, and any reference to the Administrator-General in legislation enacted by such Administration shall be deemed to be a reference to the President of Namibia, and any reference to a Minister or official of such Administration shall be deemed to be a reference to a corresponding Minister or official of the Government of the Republic of Namibia.

Article 141 – Existing Appointments

  1. Subject to the provisions of this Constitution, any person holding office under any law in force on the date of Independence shall continue to hold such office unless and until he or she resigns or is retired, transferred or removed from office in accordance with law.
  2. Any reference to the Attorney-General in legislation in force immediately prior to the date of Independence shall be deemed to be a reference to the Prosecutor-General, who shall exercise his or her functions in accordance with this Constitution.

Article 142 – Appointment of the First Chief of the Defence Force, the First Inspector-General of Police and the First Commissioner of Prisons
The President shall, in consultation with the leaders of all political parties represented in the National Assembly, appoint by Proclamation the first Chief of the Defence Force, the first Inspector-General of Police and the first Commissioner of Prisons.

Article 143 – Existing International Agreements
All existing international agreements binding upon Namibia shall remain in force, unless and until the National Assembly acting under Article 63(2)(d) hereof otherwise decides.

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