Namibia: Constitutional Change Blocked

CABINET blocked attorney general Sacky Shanghala's bid to push for a constitutional change regarding the issue of citizenship after the government lost a Supreme Court case last month.

Shanghala admitted proposing to change the Namibian Constitution when the Supreme Court ruled that the son of two Dutch citizens, who have been living in Namibia for the past 10 years, qualifies for citizenship by birth.

That citizenship right is based on an article in the Constitution which states that a child born in Namibia to non-Namibian parents who are ordinarily resident in the country, is a Namibian citizen by birth.

In a reaction to the court's judgement, the immigration minister, Pendukeni Iivula-Ithana, last week proposed an amendment to the Namibian Citizenship Act in the National Assembly.

Iivula-Ithana said the Namibian Citizenship Amendment Bill would exclude the children of non-Namibian parents who live in Namibia on temporary permits from being entitled to Namibian citizenship by birth, and that children born in Namibia to non-Namibian parents would only be entitled to Namibian citizenship if their parents had permanent residence in the country.

The attorney general confirmed to The Namibian on Monday that he had advised the home affairs ministry to compile a submission to Cabinet, asking for permission to change the Constitution.

"My advice was predicated on the fact that once the Namibian Constitution is amended, all that could be done is to interpret it, however, within the confines of the language of the Namibian Constitution," he stated.

Shanghala said Cabinet initially agreed to change the Constitution, but the executive made a U-turn later.

"Cabinet revisited its decision, and opted that the constitutional amendment be the last resort," he said.

According to him, Cabinet instead agreed to invoke the Constitution's article 81, which gives parliament the right to enact laws that contradict a Supreme Court judgement.

The attorney general said Cabinet also considered the legal implications and implementation issues which resulted from the Supreme Court judgement.

Cabinet, according to Shanghala, believes the Supreme Court judgement would make it difficult for state officials in their day- to-day operations to determine whether a child qualified for Namibian citizenship by birth.

He said unlike the family involved in the Supreme Court case, many people in the North cannot prove periods of long stay in Namibia through any acceptable evidence.

"Life on a communal basis in the north of Namibia spells a different reality for the implementation of the judgement," he added.

Shanghala said the amendment to the Namibian Citizenship Act, which is now at the National Council, is aimed at identifying who would qualify to be regarded as being ordinarily resident in Namibia.

The same legal changes also want to contradict the Supreme Court judgement as permitted under the Namibian Constitution, he said.

"Obviously, law is not an exact science, and our understanding may be found wanting by another legal expert. However, government genuinely believes that there is legal authority for a judgement of the Supreme Court to be contradicted by an act of parliament in terms of article 81 of the Namibian Constitution. While a number of legal issues arise, it would be healthy for Namibian jurisprudence to be developed on this issue," Shanghala continued.

He said the Supreme Court judgement would also not only be difficult to implement administratively, but other issues such as corruption could sneak in during the process of getting citizenship.

The proposed changes to the citizenship law, he noted, were also meant to counter potential corruption, where a person is likely to be paid to attest that someone was an ordinary citizen in Namibia.

He said government felt the need to act before the expiry of the 30-day deadline which the Supreme Court had set for the issuing of a full Namibian birth certificate to the boy at the centre of the case.

Shanghala added that government is of the view that citizenship by birth should be limited to children born to fathers or mothers who are Namibian citizens.

"If those parents are not Namibian citizens, then those fathers or mothers must be in Namibia lawfully on the basis of permanent residence permits, not employment permits, visitors' entry permits or study permits," the AG stressed.

The proposal by Shanghala comes two years after he successfully championed to change the Constitution.

The 2014 constitutional changes made way for the seats in the National Council to be increased from 26 to 42 and in the National Assembly from 72 to 96. It also saw the appointment of a vice president and allowed the increase in the number of presidential appointments in the National Assembly from six to eight.

Other notable changes included making provision for the Namibia Central Intelligence Service in the Constitution and allowing the President to appoint the head of the intelligence agency, who is now part of the Security Commission.

The Constitution is the supreme law of Namibia and the foundation of the Namibian state.

Source: The Namibian.