28 July 2016
PARLIAMENT’S CHALLENGE TO THE SEPARATION OF POWERS
AND THE RULE OF LAW IN NAMIBIA
month the Namibian Supreme Court, in the De Wilde case, in
interpreting Article 4 of the Namibian Constitution, ruled
that a child born in Namibia to non-Namibian citizens would
be a Namibian citizen by birth where the child’s father
or mother was ordinarily resident in Namibia at the time of
the birth. In so doing the Supreme Court was exercising its
powers in terms of Article 79(2) of the Constitution to interpret,
implement and uphold the provisions of the Namibian Constitution.
This clear constitutional interpretation of Article 4(1) should
have been the final word on the topic.
last week the National Assembly passed the Namibian Citizenship
Amendment Bill with the express intention of overriding the
Supreme Court judgment. The Bill provides that a child born
under the circumstances of the De Wilde child would only obtain
Namibian citizenship where both parents were permanent residents
at the time of the birth. As if this was not enough, Parliament
went further to legislate that “no rights may arise
as result of the decision of the Supreme Court” in the
De Wilde case.
effect Parliament is seeking to impose its will by negating
the interpretation given to Article 4(1) of the Constitution
by the Supreme Court. The only way to lawfully achieve this
result would have been to amend the Constitution, a route
Parliament has not followed. The Society of Advocates is deeply
concerned about the impact of the Bill. This legislation constitutes
the most serious challenge since independence to the supremacy
of the Namibian Constitution, the rule of law and the separation
of powers within our constitutional democracy.
has a jealously guarded reputation as a constitutional democracy
which upholds the doctrine of the separation of powers and
the rule of law. We cannot do any better than quote a recent
judgment of the Namibian Supreme Court, where the Court stated
that “these principles presuppose a culture of mutual
respect between the executive, legislature and the judiciary”.
Unfortunately the Bill disrespects the separation of powers
and undermines the rule of law.
the light of the very fundamental issues at stake, we call
on His Excellency the President to exercise his powers in
terms of Article 64 of the Constitution in withholding his
assent to the Bill on the basis that its adoption would conflict
with the provisions of the Constitution. This would then entitle
the Attorney General to take the appropriate steps to have
the question of the constitutionality of the Bill referred
to the Supreme Court for final determination.
28 July 2016