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When Is a Law Not Really a Law?

Dianne Hubbard

Laws passed by parliament without being brought into force

Many laws passed by parliament and published in the Government Gazette but are not brought into force right away. This is generally a useful mechanism to allow for the necessary preparations.

Often regulations must be drafted to provide for some of the finer details of implementation, and it may be necessary to appoint new officials or bodies before the new law can be put into action. 

In fact, there is a 1920 law called the Interpretation of Laws Proclamation that explicitly authorises preliminary steps like these to be taken in respect of a new law before it is formally brought into force.
That is all well and good, but Namibia has several laws that were passed by parliament many years ago without them ever being brought into force. 

Laws not brought into force
The worst offender here is the Namibia Film Commission Act, 2000 – which has not yet been brought into force 25 years after being passed by parliament, even though the Namibia Film Commission appears to operate as if it had a legal existence.

In fact, a new board was appointed to this phantom entity in December last year. 
The National Arts Fund of Namibia Act, 2005 is still lying dormant 20 years after being passed, along with the Accreditation Board of Namibia Act, 2005.

The Property Valuers Profession Act, 2012 has been waiting in the wings for 13 years. 
Only one section of the National Health Act, 2015  has been brought into force – the provision identifying the permanent secretary (now the executive director) as the chief health officer.

This was necessary because that official is referenced in the 2015 Public and Environmental Health Act that was brought into force during 2020 to deal with the Covid emergency. 
The 2015 Deeds Registries Act is an unusual case.

It was initially brought into force in 2021 after its accompanying regulations were drafted.

However, the High Court found that the preparation of the regulations had not followed the proper procedure.
So, in June 2021, the regulations and the notice bringing the act into force were both withdrawn pursuant to a High Court order.

These steps revived the 1937 Deeds Registries Act as the operative law, and the 2015 Act has not been officially been heard of since. 
The Namibian Institute of Pathology Act, 1999, languished in limbo for years after the institute had staff and a building and every other appearance of legal existence, but it was finally brought into force in 2020, more than 20 years after it was passed by parliament and signed by the president.
What other laws are gathering dust without being brought into action?

The Namibia Investment Promotion Act, 2016, the Whistleblower Protection Act, 2017, and the Seed and Seed Varieties Act 2018 still await their official debut, along with the Namibia Financial Institutions Supervisory Authority Act, 2021, the Financial Institutions and Markets Act, 2021, the Access to Information Act, 2022 and the Metrology Act, 2022 (which deals with standards for weights and measurements). 

Several laws passed in late 2024 are also not yet in force but preparation time of one to two years is not unreasonable. 
Why it is concerning?

There are several problems with leaving laws passed by parliament inactive. 
Firstly, this is one way in which the executive branch could, in theory, frustrate the will of the legislative branch, thus undermining the balanced roles that are assigned to these branches by the Namibian Constitution.

The legislature is supposed to enact laws and the executive is supposed to implement them. 
Secondly, it causes confusion.

In cases where a body is established by a law that has not been brought into force – such as the Namibian Film Commission – innocent third parties may deal with that body without realising it has no proper legal existence.
Contracts entered into with a non-existent body could probably not be enforced. 

Thirdly, it creates a false public impression that important issues have been addressed when in fact nothing has yet been done in practice.
For instance, in Namibia’s 2021 report for its Universal Period Review (an international process whereby states examine each other’s human rights records), Namibia noted that its Whistleblower Protection Act has been passed “in line with Namibia’s international obligations” and the National Health Act, “to provide a framework for a structured uniform health system within Namibia”, without explicitly pointing out in the report that these acts are not in force.
Having dormant laws on the books also sends out confusing policy signals to the Namibian public. 

What should happen instead? 
If parliament passes a law about which it later has a change of heart, it should repeal the law to make it clear the legal change it embodies should no longer be anticipated. 

If the law needs some changes before it is brought into action, then parliament should amend the law promptly. 
If the parliamentary intention is that the law it passed should be brought into force as it stands, then the executive branch should not delay beyond what is reasonably necessary to make preparations for implementing it – and parliament should monitor this to ensure that its will is being carried out. 

Laws are supposed to be sources of clarity and certainty.
Passing laws without enacting them undermines this objective.  

It is a new year with new parliamentarians about to take its seats – a good time to clean house when it comes to the body of Namibian laws. 

  • Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.

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