From independence, Namibia has been built on the concept of the separation of powers
between the executive, legislative and judicial branches of government. This system provides for
majority rule while still ensuring that the Constitution is able to protect the rights of individuals and
minorities. It provides for checks and balances between the different branches of government.
The Constitution sets out the fundamental nature of this system in its Preamble, which says that
the equal and inalienable rights of all members of the human family are indispensable for freedom,
justice and peace and that these rights are “most effectively maintained and protected in a democratic
society, where the government is responsible to freely elected representatives of the people,
operating under a sovereign constitution and a free and independent judiciary”.
Each branch has a specific role when it comes to the law. The executive administers and
executes laws. (Art 35(1)). The National Assembly has the power, subject to the Constitution, to make
and repeal laws for the peace, order and good government of the country in the best interest of the
people of Namibia (Art 63(1)), while the National Council reviews all bills passed by the National
Assembly (Arts 74-75). The judiciary is responsible for interpreting, implementing and upholding the
Constitution (Arts 79-80) and for enforcing the fundamental rights and freedoms protected by the
Constitution (Art 25).
The Constitution specifically states that Parliament shall not make any law that abolishes or
abridges the fundamental rights and freedoms conferred by the Constitution and that any law which
does so is invalid (Art 25(1)).
And yet Parliament last year passed a Definition of Spouse Bill that explicitly purports to
“contradict” a decision of the Supreme Court based on the fundamental rights of dignity and equality,
whilst a Marriage Bill that was recently passed by Parliament, but is not yet published, would more
subtly do the same thing. If these bills are enacted, they are likely to be challenged in court and
declared invalid in accordance with the Constitution. Such a clash between Parliament and the
judiciary would undermine the founding constitutional principles of the separation of powers and the
independence of the judiciary. This would undoubtedly have a negative effect on Namibia’s proud
record as a democracy, to the detriment of Namibia’s citizens and Namibia’s international standing as
a leading example of a stable democracy in Africa.
Every member of the legal profession takes an oath to defend and uphold the Constitution of the
Republic of Namibia as the Supreme Law. This is why the Society of Advocates of Namibia feel
compelled to speak out about this concern.
Every Member of Parliament also takes an oath to uphold and defend the Constitution and laws of the
Republic of Namibia. We appeal to Parliament to take this oath seriously, even in difficult cases where
the personal views of some MPs do not accord with the decision of the courts on a constitutional issue.
And, in cases where Parliament does not adhere to this oath, we call upon the executive not to bring
into force any provisions that would undermine Namibia’s constitutional structure.
The duty to uphold Namibia’s fundamental constitutional structure is much larger and more important
than any specific issue. Our future as a democratic nation depends on it.
N BASSINGTHWAIGHTE
PRESIDENT: SOCIETY OF ADVOCATES OF NAMIIBIA