138 Kariseb/Implementation of article 9 of the Women’s Rights Protocol in Namibia provisions are supreme,19 making it the ultimate source of law in Namibia. Accordingly, all other laws (and policies) trace their legitimacy and source from the Constitution. Given the historical context of the legal system in Namibia, and as a means to avoid a preconceived legal vacuum, all pre-existing laws at the time of independence are to remain in force until repealed or amended by an Act of Parliament.20 In the context of women’s rights, more so their political emancipation, the Constitution has been relatively robust in the protection it affords. Beginning from its Preamble, the Constitution recognizes, the ‘inherent dignity’ and ‘equal and inalienable rights of all members of the human family’ regardless of ‘sex’. Article 10, the equality clause, speaks to the plight of women in Namibia. It is a twopronged provision, recognising firstly the equality of all persons, male or female, before the law; and secondly, bars any discrimination on the grounds of ‘sex, race, colour, ethnic origin, religion, creed or social or economic status’.21 Not surprisingly too, article 10 has stirred controversy in many quarters, particularly in its narrow scope that falls short in the protection of the rights of sexual minorities in that it does not explicitly address sexual orientation and the debate has often been whether ‘sex’ includes ‘sexual orientation’.22 This affects women, who identify as transgender, lesbian or broadly asexual, and may be a burden for any rights claim in the context of political participation given the obscurity of article 10 and its relevance and application to sexual minorities. The provision may therefore need refining. It should however be borne in mind that article 10 of the Constitution, like most of the constitutional provisions under the Bill of Rights, is the product of a political compromise -- perhaps a necessary compromise. Its inclusion was a political necessity, surely for the then newly crowned SWAPO government, under Sam Nujoma, who at least at the time had much to prove to the international community, particularly the Western Contact Group. Inevitably, a broad provision such as article 10 read together with the broader provisions of the bill of rights, was a sacrifice aimed at easing the concerns of the colonisers and the international community. It is also worth noting that the protection afforded to women in terms of article 10 is a ‘right’ as opposed to a mere ‘freedom’. The Constitution draws a vivid distinction between these two and differentiates between their enforcement. Freedoms are to be ‘exercised subject to the laws of Namibia, in so far as such laws imposes reasonable restrictions on the exercise of the rights and freedoms’,23 which are necessary in a democratic society, while rights are directly enforceable claims with minor exceptions. Article 17 of the Constitution further complements article 9 of the Women’s Rights Protocol by 19 20 21 22 23 Art 1(6) Namibian Constitution. Art 140(1) Namibian Constitution. See also art 25(1)(b) Namibian Constitution. Art 10(2) Namibian Constitution. Legal Assistance Centre (LAC) Namibian law on LGBTI issues (2015) 28-29. See art 21(2) Namibian Constitution.