Constitutional law(fair trial)

Abstract

Abstract provided by author

While being cognisant of the challenge to be realistic of the need to conform with constitutional standards and hence protect, respect, and promote the right to silence unconditionally and the need for individuals to account fully for their unlawful actions the fundamental question arising is to what extent can the right to silence be limited constitutionally in the interest of justice? Some fundamental issues flowing from this research question are whether the right to silence is absolute and if not to what extent it is not

Aspects of common law on the subject of silence as has evolved in the English legal system are a crucial source of reference and scrutiny in any discussion pertaining to the right to silence jurisprudence. As a result, the historical origins of the right to silence, its nature, its scope and its rationale will be exposed and scrutinized and will as such form the content of the subject-matter of discussion in this dissertation

With controversy and uncertainty still surrounding the issue whether being compelled to give testimony against oneself or against ones spouses in terms of Article 12 (1)(f) is limited to compulsion in terms of article 8 (2)(b) or not, the debate in this paper is centered, with special focus on an expansionist view of developing the right to silence jurisprudence in Namibia, as opposed to a retentionist and or abolitionist view

This dissertation, with a view of suggesting reform and codification, will focus its discussion, having regard to case law and the Constitution as a whole, on the implications of the right to silence having the status of a fundamental human right as endorsed by Article 12 (1)(f) of the Namibian Constitution.