Good governance

Good governance in Namibia will not pass muster if the rule of law is not respected.

Article 1 of the Namibian Constitution states that Namibia is a democratic republic in which all power shall vest in the people. This power is exercised through the legislature and the judiciary. The legislative arm of government is the Namibian parliament, which consists of the National Assembly and the National Council. Its primary task is to enact laws.

All Namibians over the age of 18 are allowed to vote and those over 21 can be elected into public office. The president can also appoint eight non-voting members of parliament due to their special expertise and skills.

The National Council represents the 14 Namibian regions in the lawmaking process. Each region sends three members, totalling 42 members of the National Council.

Both the National Assembly and the National Council can propose bills and have to reach agreement for the bills to become legislation. City and regional councils form the legislature on a local, as well as regional level.

The president and the Cabinet, as well as public services and enterprises, constitute the executive branch which must ensure that the laws passed by parliament are executed.

Courts form the judicial branch of government and are responsible for interpreting the existing laws and applying them to matters brought before them.

There are lower and higher courts in Namibia. The Magistrate’s Court’s mandate is limited. If parties involved in the case are not satisfied with the judgement, they can appeal to the High Court and the Supreme Court, which interpret and apply the Constitution.

Good governance is the process of evaluating public institutions’ ability to manage resources, conduct public affairs and ensure that human rights are largely realised free from abuse and corruption and with proper respect for the rule of law.

The Supreme Court is the highest court in Namibia and has to make sure existing laws and policies do not violate the Constitution or Namibia’s international obligations.

The division of powers among the three different branches is designed to provide checks and balances so that no one branch of government is able to take control of all government activity.

This is a core value of a constitutional democracy and is important to preserve this division.

All courts are independent. They follow only the Constitution and the law.

In May 2023, the Supreme Court ordered that the Namibian government has to recognise same-sex marriages concluded outside the country for immigration purposes. This meant that the same-sex non-Namibian spouse of a Namibian citizen should receive the same immigration rights as would be the case between an opposite-sex Namibian or non-Namibian married couple.

The Supreme Court substantiated its judgement by direct reference to the fundamental rights of equality and dignity ensured in Namibia’s Constitution. These would be violated if same-sex and opposite sex couples are treated differently in this regard.

After the Supreme Court judgement, two private member’s bills were tabled in parliament, aiming to directly contradict the verdict by defining the term spouse as “a person, being one half of a legal union between a genetically born man and a genetically born woman of the opposite sex of that person”.

The bills passed parliament without any member of parliament opposing it. This is highly concerning. Passing bills that directly contradict a Supreme Court judgement undermines the separation of powers anchored in Namibia’s Constitution. It should not be changed and amended based on the whims of parliament.

Contradicting a verdict that is based on the fundamental rights of dignity and equality does not bode well for Namibia’s democracy and the protection of human rights.

The attorney general confirmed that “the government is in the process of conducting a legal assessment of this constitutional ruling before determining the appropriate course of action within the available constitutional parameters”.

This clearly shows that the groundbreaking judgement is attracting alarming attention.

The president is not compelled to sign and execute these bills. Article 64 of the Namibian Constitution provides the president the right to withhold his assent to a bill if he believes it contradicts provisions of the Constitution.

In this case, he can take the matter to a competent court, which would be the Supreme Court, which then has to conclude whether the bill is constitutional or not. If the conclusion is that the bill is unconstitutional, the president can and should withhold his assent, even if the bill was passed by a two third majority in parliament.

The recent Supreme Court verdict being contradicted by two private member’s bills challenges the separation of powers in Namibia and will indicate whether all three branches of government are committed to upholding the values of a constitutional democracy.

• This article was made possible by support from the Hanns Seidel Foundation.