The Namibian Constitution came into force on Independence Day 21 March 1990 and has been hailed to be one of the most democratic and liberal constitutions in the world. It shows a strong commitment to the rule of law, democratic government and respect for fundamental human rights and freedoms and contains mechanisms with regard to checks and balances between the three branches of Government, the executive, legislative branches, and the judiciary. The protection of the environment is not only a concern, but a constitutional issue in Namibia.
According to Article 1(6) of the Namibian Constitution, the latter is the law above all laws. Therefore, all legislations ought to be consistent with the provisions of the Constitution. The Constitution lays the foundation for all policies and legislation in Namibia and contains three key environmental clauses relevant to sustainable use of natural resources.
Article 100 of the Constitution vests all natural resources in the State, unless otherwise legally owned. Thus, unless legal ownership to natural resources in a specific locality is proven, such natural resources are owned by the State; the provision implies thus that natural resources can be legally owned as private property.
Article 95 (l) stipulates that the state shall actively promote and maintain the welfare of the people by adopting policies which include the: “maintenance of ecosystems, essential ecological processes and biological diversity of Namibia and utilisation of living natural resources on a sustainable basis for the benefits of all Namibians…”. With this particular Article, Namibia is obliged to protect its environment and to promote a sustainable use of its natural resources.
Furthermore, Article 91(c) stipulates that one of the functions of the Ombudsman is “the duty to investigate complaints concerning the over utilisation of living natural resources, the irrational exploitation of non-renewable resources, the degradation and destruction of ecosystems and failure to protect the beauty and character of Namibia.”
Further to these environmental key provisions, Article 144 must be pointed out as the constitutional link to international environmental law applicable in Namibia and which provides that: “Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia.”