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A Constitutional Crisis?

25 July 2016
The Namibian

Toni Hancox and Dianne Hubbard: The Namibian Constitution is the supreme law of the country. All legislation and all government action must be consistent with the Constitution.

The President and all lawmakers take an oath to uphold, protect and defend the Constitution. The primacy of the Constitution is the very essence of a constitutional democracy.

This principle is made explicit in Article 4 of the Namibian Constitution on citizenship, which states that “parliament shall be entitled to make further laws not inconsistent with this Constitution regulating the acquisition or loss of Namibian citizenship”.

And yet, it seems that parliament is now attempting to 'overrule' the Constitution as it has been interpreted by the Supreme Court.
On 23 June 2016, in the De Wilde case, the Supreme Court of Namibia made a ruling on the meaning of the term 'ordinarily resident' in Article 4(1). That Article provides that a child born in Namibia to non-Namibian citizens will be a Namibian citizen by birth if the child's father or mother is ordinarily resident in Namibia at the time of the birth - with a few narrow exceptions, such as children born to diplomats of other countries who are stationed in Namibia.

After an analysis of the relevant provisions, the Supreme Court concluded in this case that “the framers of the Namibian Constitution intended the phrase 'ordinarily resident' to have a meaning distinct from permanent residence”.

The Supreme Court stated further that in determining whether a person is ordinarily resident for the purposes of Namibian citizenship, “each case must be considered on its facts”, since the phrase “ordinarily resident” is not a “technical expression”.

The court also gave guidance on the key factors which should be considered: whether the person concerned normally lives in Namibia and is not just visiting, whether the person has no immediate intention of permanent departure, and whether facts capable of objective proof support that person's intention to make Namibia his or her habitual home.

Moreover, it stated that the government's assertion that residence on the basis of an employment permit cannot constitute ordinary residence, “cannot be accepted”.

The court also clearly stated that “the Constitution is the source of all law, and must take precedence over other laws, which are subordinate to it. Constitutional provisions are not determined by the content of legislation.”

This week's bill in the National Assembly attempts to override the Supreme Court's holding on the meaning of the Constitution. It contradicts the Supreme Court with a legislative provision, saying that a person born in Namibia after the date of independence to non-Namibian parents acquires Namibian citizenship by birth only if one (or both) of those parents were permanent residents at the time.

Even more astonishingly, it states that “no rights may arise as a result of the decision of the Supreme Court of Namibia prior to the passage of this bill” - thus seeking to nullify the court's judgement entirely.

The memorandum accompanying the bill asserts that the bill is clarifying the ambiguities created by differing opinions from the attorney general, the High Court and the Supreme Court. But the 'opinion' of the Supreme Court on the meaning of the Constitution is not just one of many interpretations.

The Supreme Court has the Constitutional responsibility, under Article 79, to interpret the Constitution. And, as the highest court of appeal in Namibia, its decisions on the Constitution's meaning take precedence over those of lower courts and government officials.
Article 81 of the Constitution says that a decision of the Supreme Court “shall be binding on all other Courts of Namibia and all persons in Namibia, unless it is reversed by the Supreme Court itself, or is contradicted by an Act of Parliament lawfully enacted.” And what does lawfully enacted mean? It means “subject to the Constitution”.

The Supreme Court's role in respect of the Constitution is made even clearer by Article 64. If the President refers a bill to a competent Court because its constitutionality is in doubt and the court rules that the disputed bill is in conflict with any provision of the Constitution, “the said bill shall be deemed to have lapsed, and the President shall not be entitled to assent thereto”.

There is no doubt in this case. The bill currently before the National Assembly directly contradicts the Supreme Court's ruling. If it is passed, it would subvert the separation of powers, which is the essence of Namibia's Constitutional framework.

The subject matter of the bill before parliament will not affect many people in Namibia. But undermining the role of the courts and the supremacy of the Constitution would affect us all.

If parliament can overrule any interpretation of the Constitution which it does not like, then the Constitution is no longer the supreme law of Namibia. If this bill is allowed to pass, it means that parliament is supreme, and the Constitution and the courts have become irrelevant. This would change the very nature of Namibian democracy.

Passing this law would take us back to the system which prevailed in pre-independence times when there was no check on the legislature. Even a democratically-elected parliament should not be all-powerful.

There is an important point in having three different branches of government - the executive, the legislature and the judiciary - with different roles. That is what provides the checks and balances, which keep Namibian democracy safe for all time.

If the Ministry of Home Affairs and Immigration is unhappy with Article 4(1) of the Constitution as it has been authoritatively interpreted by the Supreme Court, there are procedures which can be followed to amend the Constitution. Trying to get parliament to usurp the role of the Supreme Court is not the right way forward.

• Toni Hancox is director of the Legal Assistance Centre. Dianne Hubbard is a lawyer with the Legal Assistance Centre.

Read also: Lawyers raise alarm over citicenship bill
And: Government defies Supreme Court