In dubio pro libertate - the General Freedom Right (GFR).

Abstract

The constitutional protection of actual, intended or only desired behaviour of a person outside the ambit of a special Fundamental Right or Freedom, requires the recognition of a residual (negative) freedom, also called General Freedom Right (GFR). The non-recognition of the GFR, results in the possibility that the legislator, and in its wake the executive may arbitrarily infringe, restrict and violate the life-spheres of individuals without any legal remedy for the affected individual. Such treatment does not recognise the individual as a recipient of rights but as an object, subjected to statutory mechanisms without a say in the matter. If Ronald Dworkin’s claim that democracy is about governments ‘treating all members of the community as individuals, with equal concern and respect´ holds any appeal, legal scholars better look out for this residual freedom right in their Constitutions. The paper deals with the merits of the GFR and the question where to locate this right in the norm text of the Namibian Constitution.