Veterans Act not unconstitutional‘Not amounting to discrimination’ Although the legislation differentiates between those who fought for, and against, Namibia’s liberation, the differentiation does not impair the dignity of former SWATF/Koevoet members, says a legal opinion from the Ombudsman’s office. CATHERINE SASMANEx-soldiers of SWATF/Koevoet were dealt a knockout when the Ombudsman’s office pronounced the Veterans Act of 2008 is in compliance with the Namibian constitution.
The ex-soldiers under the auspices of the Namibia War Veterans Trust (NAMVET) sought a legal opinion on the constitutionality of the Act from the Ombudsman’s office in March.
They wanted to know if their exclusion from benefits attainable under the Act of ex-soldiers who fought alongside the South African Defence Force (SADF), be it in SWATF or Koevoet, is unconstitutional for being in conflict with Article 10 of the Namibian constitution, which provides for equality and freedom from discrimination.
The former soldiers always maintained that the Veterans Act is discriminatory because it only recognises those who have fought on the side of Swapo during the liberation struggle and asked for an amendment to provide for all former soldiers, irrespective of which side they fought for.
They also felt that the Namibian government’s conduct since independence has caused them and their descendants “sustained loss” of human security, human dignity, financial losses, loss of senior benefits and other values.
Article 10 of the Namibian constitution states that all persons are equal before the law and that no person shall be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed, or social or economic status.
In his legal opinion Ramon Maasdorp of the Ombudsman’s office said the Veterans Act passes the compliance test as the differentiation between persons who fought for the liberation of Namibia and those who fought against it is based on a “rational connection to a legitimate purpose”.
“The legitimate purpose is to provide financial assistance to those persons who made sacrifices aimed at achieving Namibia’s freedom from South Africa’s illegitimate control,” Maasdorp contended.
Another compliance test passed is that while the Act differentiates between persons who fought for the attainment of independence and those who fought against it, the Act does not differentiate on the prohibited grounds of sex, race, colour, ethnic origin, religion, creed or economic status, Maasdorp added.
Maasdorp could not with total clarity state if the Act’s differentiation is based on social status.
He said social status is not defined in the Namibian constitution and there is no definition of it in any reported Namibian judgements.
Maasdorp said although the former SWATF/Koevoet members are “treated as outcasts” in post-independent Namibia, their social status is not the basis of this differentiation.
He went on to say that differentiation in the Act does not impair the dignity of the former SWATF/Koevoet members and does not amount to discrimination.
Following this interpretation, Namvet chairperson Jabulani Ndeunyema said: “We would have suffered a technical knockout by the Swapo government if we were to have challenged the Veterans Act in court; it would have been an axe thrown in our faces. We have been asking the government and Parliament to include us in the Act as war veterans not knowing that the Act was crafted by a very cunningly intelligent person.”
Ndeunyema said the political demonstration of the ex-soldiers would continue.