Does Policy Drive the Law… or Does Law Drive Policy?

• FELICITY !OWOSESPUBLIC POLICY, also known as regulatory policy, is used by governments to address problems, advance the economic well-being of society and promote the rule of law. Collectively, it refers to principles, laws, guidelines or frameworks adopted to achieve certain goals.

In this context it involves principles of both policy and law. It is important to separate ‘law’ as a component of public policy to explain how policy drives the law and vice versa. 

Policy refers to the principles/guidelines/frameworks of what must be done, to whom it applies, and how it must be done. Law refers to the conduct of society, or a section of society, that is binding. Although policies are not enforceable in a court of law, they represent a form of social contract between the government and society, reflecting the government’s intent to deliver. Policies guide the actions of policymakers and lawmakers and guide the courts in the interpretation of laws.

Namibia is a constitutional democracy based on the supremacy of the Constitution, separation of powers, rule of law, and entrenched rights and freedoms. Power is shared between the executive – the president and Cabinet responsible for policy making; the legislature – parliament, which makes, amends and repeals laws; and the judiciary, which interprets the laws.

Policies can be both short term or long term and can also emanate from the national, regional or local levels of government. Examples of high-level policies in Namibia are Vision 2030, the national development plans and the Harambee Prosperity Plan. National policies include the land policy and the housing policy, among others. 

As societal values, needs and aspirations change, policies must be reviewed or new policies be drawn up. These policies often require laws to give effect to them. In the Namibian context, law refers to the Constitution, common law, customary law, statutory law and international law. The golden principle in guiding policy and laws is “public interest” and the “interest of the Namibian people”. 

Although policies are not binding, the government can be taken to task if policies are not in line with societal values, needs and aspirations, if it fails to deliver on promises made in policies, or applies policies inconsistently. In this way, society can also help shape policy and lawmaking.

GUIDING PRINCIPLES

In Namibia, there is no mandatory requirement for a written policy to precede legislative proposals. Often legislative proposals are presented as an already drafted bill making it difficult to identify the policy purpose, objective, regulatory models, capacity and financial implications, among others. Although the National Planning Commission has developed a policy document guideline, it seems it is not always complied with, especially when it comes to policies to guide legislative proposals.

To be effective, a policy must be in writing; set out its purpose, funding models, decide on powers and organisational structures; be evidence-based; reflect citizen and stakeholder perspectives; ensure capacity and capability; identify problems, and the regulatory tools to be used; be consistent; promote the well-being of society and the rule of law. Also, the government must work collaboratively, measure progress and review policies regularly. 

To be effective, law must be in writing; be clear, concise, consistent and certain; promote the well-being of society and the rule of law; be accessible; be able to be implemented; be enforceable; and, society must be willing to abide by it.

In reality, decisions to enact certain laws often come in the nick of time. This is especially true for proclamations gazetted by the president, and for public emergency laws such as Covid-19 public health laws, and petrol prices, among others. Those responsible for these legislative instruments are required to act within a matter of hours, which may affect a law’s effectiveness.

However, this should not be used to justify the absence of written policies to guide legislative proposals. Unless an emergency situation exists, policymakers, lawmakers and implementers must strive to apply the principles set out above.

The government should enhance the capacity in offices, ministries and agencies by having officials responsible for policy and legal matters; the capacity of those responsible for reforming laws to build national law reform capabilities; and the capacity of those translating the law into policy to ensure continuity.

* Felicity !Owoses is a legislative drafter at the Ministry of Justice and the author of ‘Planning Law in Namibia’. Her work can be accessed at https://independent.academia.edu/FelicityOwoses

• FELICITY !OWOSESPUBLIC POLICY, also known as regulatory policy, is used by governments to address problems, advance the economic well-being of society and promote the rule of law. Collectively, it refers to principles, laws, guidelines or frameworks adopted to achieve certain goals.

In this context it involves principles of both policy and law. It is important to separate ‘law’ as a component of public policy to explain how policy drives the law and vice versa. 

Policy refers to the principles/guidelines/frameworks of what must be done, to whom it applies, and how it must be done. Law refers to the conduct of society, or a section of society, that is binding. Although policies are not enforceable in a court of law, they represent a form of social contract between the government and society, reflecting the government’s intent to deliver. Policies guide the actions of policymakers and lawmakers and guide the courts in the interpretation of laws.

Namibia is a constitutional democracy based on the supremacy of the Constitution, separation of powers, rule of law, and entrenched rights and freedoms. Power is shared between the executive – the president and Cabinet responsible for policy making; the legislature – parliament, which makes, amends and repeals laws; and the judiciary, which interprets the laws.

Policies can be both short term or long term and can also emanate from the national, regional or local levels of government. Examples of high-level policies in Namibia are Vision 2030, the national development plans and the Harambee Prosperity Plan. National policies include the land policy and the housing policy, among others. 

As societal values, needs and aspirations change, policies must be reviewed or new policies be drawn up. These policies often require laws to give effect to them. In the Namibian context, law refers to the Constitution, common law, customary law, statutory law and international law. The golden principle in guiding policy and laws is “public interest” and the “interest of the Namibian people”. 

Although policies are not binding, the government can be taken to task if policies are not in line with societal values, needs and aspirations, if it fails to deliver on promises made in policies, or applies policies inconsistently. In this way, society can also help shape policy and lawmaking.

GUIDING PRINCIPLES

In Namibia, there is no mandatory requirement for a written policy to precede legislative proposals. Often legislative proposals are presented as an already drafted bill making it difficult to identify the policy purpose, objective, regulatory models, capacity and financial implications, among others. Although the National Planning Commission has developed a policy document guideline, it seems it is not always complied with, especially when it comes to policies to guide legislative proposals.

To be effective, a policy must be in writing; set out its purpose, funding models, decide on powers and organisational structures; be evidence-based; reflect citizen and stakeholder perspectives; ensure capacity and capability; identify problems, and the regulatory tools to be used; be consistent; promote the well-being of society and the rule of law. Also, the government must work collaboratively, measure progress and review policies regularly. 

To be effective, law must be in writing; be clear, concise, consistent and certain; promote the well-being of society and the rule of law; be accessible; be able to be implemented; be enforceable; and, society must be willing to abide by it.

In reality, decisions to enact certain laws often come in the nick of time. This is especially true for proclamations gazetted by the president, and for public emergency laws such as Covid-19 public health laws, and petrol prices, among others. Those responsible for these legislative instruments are required to act within a matter of hours, which may affect a law’s effectiveness.

However, this should not be used to justify the absence of written policies to guide legislative proposals. Unless an emergency situation exists, policymakers, lawmakers and implementers must strive to apply the principles set out above.

The government should enhance the capacity in offices, ministries and agencies by having officials responsible for policy and legal matters; the capacity of those responsible for reforming laws to build national law reform capabilities; and the capacity of those translating the law into policy to ensure continuity.

* Felicity !Owoses is a legislative drafter at the Ministry of Justice and the author of ‘Planning Law in Namibia’. Her work can be accessed at https://independent.academia.edu/FelicityOwoses

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