Constitution Changes Fail the Promise of Freedom [analysis]

THE NAMIBIAN Constitution Third Amendment Bill (“the amendment bill”) which was tabled in parliament has triggered an outcry from representatives of civil society, mainly about lack of consultation.

The intention of this article is different. Its purpose is to appeal to the members of parliament, when deliberating the amendments to the Constitution, to consider whether the promise they gave to the nation on the eve of the country’s independence more than 24 years ago will be fulfilled or at the very least brought closer to fulfilment, through the constitutional amendments. It is also an appeal to members to be guided by Article 45 of the Constitution, which requires them, when passing laws, to be guided by the objectives of the Constitution, by the public interest and their conscience.

For some of the members of parliament this will be their last chance to fulfil the promise which they gave to the people on the eve of independence.

The promise, contained in the Swapo Election Manifesto of 1989, was to create a society in which individuals should subordinate their own personal interest to the greater good of all. The promise was to send to the Constituent Assembly “men and women with a revolutionary will, honourable record, vision for a better future, integrity, experience and proven ability to fight for the interest of the broad masses of the Namibian people”.

The promise was to give freedom to the masses through the creation of a viable, participatory and genuinely representative political system. It was promised that parliament would be “elected through universal suffrage to represent the various constituencies” and that local government structures would be organised in such a way that they can directly influence policy decisions of the central government.

Our Constitution, over which the Namibian people never really had a free hand to determine its content, is not a perfect document. In my opinion it falls short of the promise to achieve social justice for the people. Fundamental social and economic changes are necessary in order to attain social justice for the impoverished masses. This can only be done through constitutional reforms, which so far have not been undertaken.

A foundational principle of the Namibian State is that government must be responsible to freely elected representatives of the people and that all power vests in the people of Namibia.

The question that each member of parliament must answer for himself or herself is whether the proposed constitutional amendments aance the fulfilment of the promises made to the people and whether they are in line with the foundational principles of the Constitution.

In my opinion the proposed constitutional amendments do not seek to effect a fundamental social and economic change. In that regard they fall short of the promise for social justice.

Evidently, there are two sections in the amendment bill that detract from the promise of having an accountable government. These sections concern the new powers sought to be given to the President.

The first power is contained in section 10 of the amendment bill dealing with the amendment to Article 46 of the Constitution. The second power concerns the provision in section 33 of the amendment bill, giving the President the power to appoint regional governors.

Section 10 seeks to enlarge the maximum number of persons that the President may appoint to parliament from six to eight, and also seeks to give the appointed persons voting powers on matters not requiring two-third majorities. It should be remembered that although the Constitution presently gives the President the power to appoint no more than six members, these members presently do not have voting rights.

Although as a matter of constitutional law an increase of the number of formerly non-voting members of parliament seems to be unobjectionable, giving unelected members voting powers in my opinion, detracts from the foundational principle that government must be responsible to the people through their elected representatives.

The members of parliament appointed by the President are not freely elected by the people and cannot be responsible to them. They are appointees of the President and will thus primarily be responsible to him. This seriously undermines the principle that all power must vest in the people, which according to the 1989 Election Manifesto, was the motivating force behind the struggle for independence.

Section 33 of the amendment bill states that, the President appoints governors as political heads who serve at the pleasure of the President. The governors appointed by the President may in writing require regional councils to address any matter. In terms of section 33(6) of the amendment bill, the President or the minister responsible for regional or local government may assign functions to governors, and governors shall report to the President.

There appears to be a tension between section 33 of the amendment bill and other Articles in the Constitution dealing with regional and local government.

Article 102(3) of the Constitution states that every organ of regional and local government shall have a council as the principal governing body, freely elected by the people. The proposed amendments in section 33, in my view, undermine the principle of accountable government to the people: it puts an unelected official at the political helm of a region, with powers to instruct regional councils on any matter, the governor may be assigned undefined functions by the President to whom alone he or she is accountable.

While Article 109 of the Constitution vests the executive powers in elected officials, section 33 of the amendment bill appears to dilute these powers, by clothing governors with the power of overseeing the exercise of any executive function of government in the regions.

Amending any law takes time and requires careful consideration. When amending the supreme law of the land, the elected representatives must remember the promise they made. They must remember that people paid a supreme sacrifice, so that a just society in which all the power vest in the people could rise from the ashes of oppression.

Any change to the Constitution must be an attempt by the elected representatives to push closer to our proclaimed ideals. This must and can be the only standard. The Namibian revolution demands nothing less.

– Nixon Marcus is a lawyer, who has specialised in constitutional law. He runs Nixon Marcus Public Law Office and was a member of the Law Reform and Development Commission until November 2013.

Source : The Namibian