Windhoek — The High Court yesterday, on an interim basis, declared the recent ban of public demonstrations by the Namibian Police unconstitutional after an application against the ban was hastily submitted to court on Monday.

The hearing in the matter started before High Court Judge Nate Ndauendapo yesterday, with lawyers representing the Inspector-General of the Namibian Police submitting a notice to oppose the application launched by various civil society organisations on Monday, which challenged the ban.

The police public relations division issued a statement last week saying "no demonstrations or gatherings would be permissible" between August 12 and 20, because the police would find it "difficult, if not impossible, to provide people or individuals who may want to exercise their constitutional rights in the form of demonstrations or gatherings".

The ban, coincidentally or conveniently, came just two days before the Rally for Democracy and Progress (RDP), Namibia's official opposition, was to have held its march to demand the release of an election case verdict by the Supreme Court, while a group of southern African civil society organisations, currently meeting in Windhoek, also planned to march and hand over their grievances to the sub-continent's leaders who were meeting here.

However, the Namibia Non-Governmental Organisations Forum (Nangof) Trust launched an urgent application in the High Court on Monday, seeking relief against the police ban of demonstrations.

Nangof Trust roped in human rights lawyer, Norman Tjombe, to argue their case and the youthful counsel wasted little time when he told the partially packed court that the ban was "completely and blatantly illegal".

Tjombe argued that the ban was tantamount to violation of human rights by the police as nobody, other than the head of state, may defy people's rights and freedoms, as provided for in Article 26 of the Namibian Constitution.

"What we have here is a state of emergency emanating from a press statement released by the police banning all demonstrations until August 20," Tjombe said.

"What has happened is completely unconstitutional and outside the law," Tjombe told the judge.

He added that Chief Inspector Angula Amulungu, the second in charge in the police public relations division and author of the statement banning demonstrations, has no constitutional right to make such decisions.

"This is a constitutional democracy and only the President can take such decisions and even the President only takes such decisions when there is threat to the lives of the nation," he said. The police had cited limited resources, as reason for temporarily banning the demonstrations, but Tjombe argued that such excuse is not a "constitutionally permissible reason".

"Article 17 provides citizens with the right to demonstrate and this right cannot be suspended by a police officer," Tjombe told the court.

Advocate Gerson Hinda, representing the police chief, said the police did not "ban" demonstrations, but has rather asked for "limitations" in matters related to marches and demonstrations.

He said there was no evidence before the court that there indeed existed a ban or it was just the police exercising its rights, as spelt out in Section 13 of the Police Act of 1999.

"The police have a lot of work to do especially now that we have 15 SADC heads of state meeting in here, accompanied by a lot of their senior government officials. So the police basically wanted to ensure security for such people and there are not enough resources to cater for everyone," Hinda said.

After hearing arguments from both counsels, Judge Ndauendapo declared the ban by the police unconstitutional, thereby allowing those who wish to march or demonstrate to go ahead with such plans.

The High Court judgment is, however, interim as parties in the matter have to return to court on September 17, to conclude their arguments on the constitutionality of the ban in question, after which the court would give a final verdict.

The court did not, as requested by the applicants, declare unconstitutional Section 2 of the Public Gathering Proclamation, which talks about the issuance of notices of intent, before any demonstration or march takes place.