Namibia Political History, and Constitutional Layout

Namibia Political History, and Constitutional Layout.

Political Parties and Namibia Environment.

____________________

Author

Theodore Burton

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Namibia Political History

Namibia’s Politics and Constitutional Democracy.

Introduction

In 1990, after a century of colonial rule, foreign domination and white racial supremacy, Namibia finally gained its long-sought political independence. With independence came a neo-liberal constitutional dispensation, which received world-wide acclaim. The essence of engaging in the constitution- writing process was stressed by Okoth-Ogendo, who pointed to the increasing complexities of modern contemporary societies, especially when it comes to the organisation and regulation of the interrelationships between not only the various organs of state, but also those acting in the name of the state and the citizenry. In his view, these interrelationships can no longer be steered by age-old conventions and practices; today they require purposefully engraved systems of rules, norms and values.

However, as Erasmus rightly cautioned, it is important for one to remain realistic about what a constitution can achieve, since it is not an independent and self-acting agent, but rather it is dependent on how it is used by those living and acting under its rules. This paper seeks to ascertain whether or not the wheels of constitutional democracy which the Namibian people embraced at Independence really continue to turn, and whether or not such democracy has become the centrifugal force that powers the existence of the Namibian State. This aim will be realised through a critical exploration of the fundamental question of whether the various Namibian political actors have fared well enough over the last quarter of a century, in terms of demonstrating sufficient acknowledgement of their avowed constitution as a living standard to which the conduct of public affairs must conform, and against which this conduct must be evaluated.

From colonial to constitutional rule

In the period 1884-1915, Namibia was a German colony named Deutsch- Südwestafrika [German South West Africa]. German colonial rule came to an abrupt end at the start of the First World War [WWI], when the forces of the Union of South Africa as an ally of Britain invaded the territory and forced the Germans to surrender. By the acceptance of the Peace Treaty of Versailles of 25 June 1919, Germany formally relinquished its sovereignty over the territory at the end of WWI. In terms of Article 22 of the Covenant of the League of Nations [28 June 1919], the territory was considered to be inhabited by people who were not yet ready to stand by themselves under the strenuous conditions of the modern world, hence it was placed under Mandate C of the League of Nations trusteeship system. The sacred trust of civilization and the sovereignty of the duly renamed Territory of South West Africa [SWA] were placed under the mandate of the United Kingdom of Great Britain as a principal allied force in WWI, which in turn transferred the full powers of administration and legislation to the Union of South Africa as its associated allied force.

South Africa, as the administering mandatory power, had intentions for SWA other than the pursuance of the principles of self-determination and trusteeship contained in the Covenant of the League of Nations. From the end of the Second World War [WWII], these intentions caused tremendous unease, and placed South Africa at loggerheads with the newly created

United Nations Organisation as the successor to the League of Nations. Eventually, on 21 July 1971, the International Court of Justice [ICJ] ruled in favour of terminating South Africa’s mandate over SWA . Following this milestone decision, South Africa increasingly found itself at the receiving end of various resolutions and motions of both the United Nations Security Council [UNSC] and the United Nations General Assembly [UNGA]. According to Rich [1993: 78-79], these developments raised concerns among the dominant Western powers of their impending isolation on the matter of SWA or Namibia, the name reportedly coined in 1961 and these concerns led to the formation in 1977 of the Western Contact Group [WCG], comprised of the United States of America, Canada, France, Germany and Great Britain, to tackle the Namibian Independence Question. The WCG played a leading role in the drafting of, and later the negotiations around, UNSC Resolution 435 of 29 September 1978, which became the definitive framework for transition to independence. After a decade of delays, Resolution 435 came into force on 1 April 1989, paving the way to independence.

One of the objectives of Resolution 435 was the holding of free and fair elections, under the supervision and control of the United Nations Transitional Assistance Group [UNTAG], for the members of a Constituent Assembly, who would be entrusted with the drafting of the Constitution of an independent Republic of Namibia. Seven of the 10 political parties which contested these transitional elections secured seats in the Constituent Assembly: South West Africa People’s Organisation [SWAPO] [41 seats]; Democratic Turnhalle Alliance [DTA] [21 seats]; United Democratic Front [4 seats]; Aksie Christelik Nationale / Action Christian National [3 seats]; National Patriotic Front [1 seat]; Federal Convention of Namibia [1 seat]; and Namibia National Front [1 seat].

On 9 February 1990, just 80 days after the first sitting of the Constituent Assembly on 21 November 1989, the final draft of the Constitution of the Republic of Namibia was unanimously adopted. The adopted Constitution was signed by all members of the Constituent Assembly on 16 March 1990, and it came into force on the date of Independence, 21 March 1990. Over the last quarter of a century [1990-2015], the Constitution has been amended three times [1998, 2010 and 2014].

The Constitution [in Article 1] defines Namibia as a sovereign, secular, democratic and unitary State, which shall exercise its power subject to judicial review, and on the basis of an entrenched, comprehensive and enforceable bill of Fundamental Human Rights and Freedoms [set down in Chapter 3 of the Constitution]. In this regard, the Constitution explicitly provides for a political system of checks and balances, through, inter alia, the notions of constitutional supremacy, constitutional review by the judiciary, separation of powers and the rule of law .

Many of these constitutional features derived from the WCG-sponsored 1982 Constitutional Principles, which, according to a number of observers, were deliberately imposed on Namibia’s Constituent Assembly for various reasons, such as the protection of Western political and economic strategic interests in this newly independent state . However, it was SWAPO’s Theo-Ben Gurirab who moved for the adoption of the 1982 Principles, during the first sitting of the Constituent Assembly. From various accounts of the constitution-making process, it emerged that this move may have been precipitated by strategic considerations on SWAPO’s part, given that adherence to these Principles was in keeping with the essential requirement that the final Constitution had to be approved by the UNSC .

The process and pace of constitution making in Namibia contrasted significantly with the later experience in neighbouring South Africa, where the legitimacy of the process hinged not only on an elected Constitutional Assembly, but also on an inclusive drafting process in which ordinary citizens were accorded opportunities to directly influence the process. This resulted in some 800 civil society bodies making close to two million formal submissions to the Constitutional Assembly, which were debated and infused into the final document .

The Executive

The Namibian Constitution makes provision for a strong executive presidency. According to Hage Geingob who served as Chairperson of the Constituent Assembly, by the time of the Assembly’s first sitting, it was already known that SWAPO President Sam Nujoma would be the first President of the Republic of Namibia, thus the debate regarding the presidency was not merely an ideological one; it was very much a debate about a known personality. In Geingob’s view, this was one reason for the Assembly’s ability to reach agreement on a strong executive presidency:

the drafters of the Constitution trusted the person who was going to become the first President.

Although the President is entrusted with the roles of both head of state and head of government, the Constitution explicitly states that the President shall in the exercise of his or her functions be obliged to act in consultation with the Cabinet . Hence it provides for the joint exercising of the executive functions by the President and members of his or her Cabinet comprised of the Prime Minister and Ministers. All Ministers are individually accountable for the administration of their own ministries, and collectively for the administration of the work of the Cabinet, to both the President and the Parliament .

On 31 July 2014, the Minister of Presidential Affairs, who concurrently serves as the Attorney-General, tabled the Namibian Constitution Third Amendment Bill, which Parliament passed on 27 August 2014. [The Namibian Constitution Third Amendment Act 8 of 2014 came into force on 13 October 2014, the date of its publication in Government Gazette No. 5589.]

The first amendment [section 1 of the Act] is the insertion of Article 27A which broadens the composition of the presidency to include a Vice- President, to be appointed by the President from the elected members of the National Assembly [one of the two Houses of Parliament, the other being the National Council]. On being appointed, the Vice-President will cease to be a Member of Parliament, and will serve at the pleasure of the President.

Then, perhaps in a bid to preclude the duplication of functions and duties of the Vice-President and the Prime Minister, the Act effectively trims the Prime Minister’s functions by substituting Article 36 with the following Article [section 7 of the Act]:

The Prime Minister shall be the leader of Government business in Parliament, shall co-ordinate the work of the Cabinet as head of administration, and shall perform other functions as may be assigned by the President or the Vice-President."

The responsibilities of advising and assisting the President in the execution of the functions of government, which previously resorted under the office of the Prime Minister, have been shifted to the office of the Vice-President. Two amendments are somewhat ambiguous, and thus could be deemed controversial. The first, amending Article 28, is the inserted Sub-Article 2C [section 2 of the Act]:

If the President-elect is unable to assume office due to his or her death, incapacity, disqualification or other reason, the Vice-President appointed by the President whose term is due to expire, shall … assume the Office of President in an acting capacity until the assumption of office by the President elected in the subsequent presidential by- election … .

Take a scenario where Party X fields the incumbent Vice-President [or any other candidate for that matter], but this candidate loses to the presidential candidate fielded by Party Y. In such a scenario, this new provision could augur ill for a smooth presidential succession, in that it could create the milieu for a coup d’état. The second ambiguity is the amendment of Article 32 by the insertion of Sub-Article 3A [section 4 of the Act]:

In the appointment of the Vice-President, the President shall have due regard for the need to obtain a balanced reflection of the national character of the people of Namibia.

This new provision raises questions as to what the appointment would require in practice. For instance, would it require the President to identify a person who is not of the same race, tribe, political affiliation or sex as his or her own?

With the introduction of a Vice-President, the appointment of a Deputy Prime Minister is no longer mandatory in terms of Article 35, which is substituted by the following provision, among others [section 6 of the Act]:

The President may, if he or she considers it to be necessary or expedient, also appoint a Deputy-Prime Minister to perform such functions as may be assigned to him or her by the President, the Vice-President or the Prime Minister.

Regarding the President’s term of office, Article 29 [not amended] states that no person may hold this office for more than two terms of five years each [i.e. apart from the first President who held this office for three terms by virtue of the Namibian Constitution First Amendment Act of 1998, discussed further on]. But now, the wording of Article 28[2][b] on the election of the President has been substituted. The original wording was as follows:

… no person shall be elected as President unless he or she has received more than fifty [50] per cent of the votes cast and the necessary number of ballots shall be conducted until such result is reached.

Article 134 provided an exception in the case of the first President of Namibia, who was elected to that office by the Constituent Assembly by a simple majority of all its members. The formulation substituting the above is as follows [section 2:

… if no candidate received more than fifty [50] percent of the votes, a second ballot shall be conducted in which the two [2] candidates who have received the most votes in the previous ballot shall participate and the candidate who received the most votes in the second ballot shall be duly elected.

Returning to the matter of the President’s term of office, according to Geingob , although SWAPO conceded to the two-term limit set down in Article 29, this was in spite of the party’s view that democracy does not require artificial limits, and that preventing a person from standing for election for more than two terms is tantamount to abridging not only that person’s natural rights, but also those of the voter who wishes to vote for that person more than twice. These views may provide some background to the Namibian Constitution First Amendment Act 34 of 1998, which amended Article 134 by inserting a third Sub-Article which reads, Notwithstanding Article 29[3], the first President of Namibia may hold office as President for three terms. Fifty- one members of the National Assembly voted in favour of this amendment and 13 opposed it . Among those who opposed it was Katuutire Kaura, then President of the DTA, who reasoned as follows:

The sine quo [sic] non for the amendment of any Constitution is public interest, not the interest of an individual. … This proposed amendment to the Namibian Constitution, on the other hand, is immoral, illogical, myopic, self-serving and a lot of supercilious palaver.

The Legislature

The legislative powers to pass laws are vested in a bicameral parliamentary system which comprises: the National Assembly, being the upper chamber, originally composed of 72 voting members elected directly on the basis of proportional representation, and six non-voting members appointed by the President by virtue of their special expertise, status, skills and experience; and the National Council, being the house of review, originally composed of two representatives of