• November 14th, 2018
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Motivation for Constitutional Third Amendment Bill

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Focus

As submitted by Dr Albert Kawana, Minister of Presidential Affairs &  Attorney-General

  • Right Honourable Speaker, 
  • Dr Theo-Ben Gurirab,
  • Honourable Deputy Speaker, 
  • Madame Loide Kasingo,
  • Right Honourable Prime Minister, 
  • Dr Hage Gotfried Geingob,
  • Honourable Deputy Prime Minister, 
  • Comrade Marco Hausiku,
  • Honourable Members 
  • of this august House,
  • My countrymen and women, 
  • Ladies and gentlemen,

It is indeed a high honour and privilege, for me to stand in motivation of the Namibian Constitution Third Amendment Bill of 2014.

Permit me Mister Speaker, to thank the SWAPO Party leadership, for having entrusted me with this task of explaining to the National Assembly, and through the National Assembly, to the rest of the Namibian Nation, what is contained in the Namibian Constitution Third Amendment Bill of 2014 and most importantly, why the proposals are made as they are.

Mister Speaker, permit me further, to utilize this opportunity, to respond to the many claims and assertions, which surfaced in the print and electronic media over the past couple of weeks while we were consulting the political parties represented in the National Assembly and the National Council. Some of these claims and assertions, as you are aware Mister Speaker, were directed at the person of the Right Honorable Prime Minister, alleging that he is power hungry and therefore proposing amendments to the Namibian Constitution to amass power. Some others allege that there is a sinister agenda to the proposed constitutional amendments. Why the rush, some others ask. It can wait until next year, is what they advise. As I present the origins for the need for the constitutional amendments, I will touch on these allegations and provide the official Government response to those questions and clarify what seems to be a confusing narrative to the public from our compatriots who write in the daily newspapers.

The constitutional amendments cannot be spoken of in isolation. They emanate from the process of the Electoral Law Reform Project (ELRP), which was conducted by the Law Reform and Development Commission (LRDC) since August 30, 2011 when at the Safari Hotel, all registered political parties were called to a briefing by the LRDC on the process that would be followed throughout the consultations. It may help to explain, as was explained then, that the High Court on February 14, 2010, when it rendered its second ruling in the matter of Rally for Democracy and Progress & Others vs Electoral Commission of Namibia & 5 Others, Case No. A 01/2010 (No. 2) at paragraphs 325 and 326 on page 160, called for the consolidation of the electoral laws and urged that the legislature make the necessary amendments.

Thus the LRDC mobilized funding for nationwide consultations in the regions and with every registered political party. It was during these consultations that it was discovered that the Electoral Amendment Act of 2009 provided for the resolution of ties in the allocation of seats in the National Assembly by way of lot, when such a piece of legislation was not a constitutional amendment law as it should be, passed by the National Assembly and the National Council in terms of Article 132 of the Namibian Constitution. It has to be a constitutional amendment, because as Honorable Members may be aware, the principles of proportional representation and party lists are derived from Article 49 of the Namibian Constitution, which can only be amended by constitutional amendment. Further, it was discussed that the run-offs provided for under Article 28 of the Namibian Constitution relating to the election of a President when no candidate obtains over 50% of the votes needed to be curtailed to the top two candidates going into the run-offs and not all candidates. Furthermore, political parties suggested that the Electoral Commission be made a constitutional body. These were the original reasons why the LRDC required input into the discussions and all political parties were asked to make submissions in general to all matters relating to elections, and I am convinced that many parties have made written submissions.

In addition to the LRDC Discussion Document which was authored by Professor he LRDC continued to draft four pieces of legislation, before consulting with me in my official capacity mid-2013, whereby I urged them to consolidate as directed by the Courts. I am fully aware that the majority of the political parties were happy to have four separate pieces of legislation, however, in my considered opinion, the amalgamation into one is what the Courts sought to have. The consolidation only completed towards the end of February 2014, and the LRDC consulted me further, as well as the Minister of Home Affairs and Immigration, Honorable Pendukeni Iivula-Ithana, the Minister of Justice, Honourable Utoni Nujoma and the Minister of Regional and Local Government, Housing and Rural Development, Major-General (Rtd) Charles Namoloh. This was during the month of May 2014.

That was the first time the LRDC disclosed to us the Electoral Matters Bill, 2014, the Draft Namibian Constitution Amendment Bill as well as the Presidential Transitions Bill. It contained, as it does now, the original amendments made known to you during the consultations, and other proposals for amendment in the Namibian Constitution, as the LRDC picked up as being necessary or were omitted in the original drafting process and not catered for in the Namibian Constitution Second Amendment Act of 2010.

Having satisfied ourselves of the need to include the amendments in the Third Namibian Constitution Amendment Bill, we approached the Right Honorable Prime Minister to consult with him and seek his input. I would sincerely like to use this opportunity to thank the Right Honorable Prime Minister for his input throughout this process, and as the drafting evolved, your wisdom and historical recollection of why certain provisions exist or did not exist has proven very, very helpful. We have all learnt a great deal from you.

Mister Speaker, I would like to utilize this opportunity to indicate that from the outset, some of us were very vocally against the Presidential Transitions Bill as proposed by the LRDC, not because we do not understand what it stands for, which I think is excellent, but because we knew what the media would do.

Some of us said that the media would distort it, and it would be made to look like the Prime Minister was up to something to make his office bigger, get more cars and bodyguards. As a matter of fact, the LRDC Chairperson will inform you, if you ask him, that even Comrade Pendukeni did not find that Bill relevant for this transition, and it is exactly what the Right Honorable Prime Minister uttered to us during the consultations. However, as you are aware, the LRDC is independent, and the LRDC insisted that the Bill is necessary, hence it was submitted to some political parties during consultations.

So it is very unfortunate, that the character assassination that we witnessed against the Prime Minister, was unwarranted, misguided and definitely aimed at portraying him in a bad light. While we agree with the content of the proposed Presidential Transition Bill, we will not place it before this august House during this session, and when it is required in the future, we can revive it.

Mister Speaker, this is the background that led us to the content of the Third Namibian Constitution Amendment Bill. After consulting with the Prime Minister, we consulted with the Head of State and Head of Government, H. E. The President, who made invaluable input. Only after consulting the President, did we consult with the Cabinet of the Republic of Namibia. Again, many important suggestions were made and we really appreciate the suggestions made. Thereafter, a consultation was organized for the Speaker of the National Assembly and the Chairperson of the National Council. Again, important suggestions were made and incorporated. Then the SWAPO Party Caucus in the National Assembly and the National Council were consulted. Some may ask – why the SWAPO Party members? Why not consult all of the Members of the National Assembly and the National Council?

My response would be that these are elected Members of the Ruling Party. We needed to consult them before we consulted members of the opposition, which we did, each and every party in this august House has been consulted. When it was felt that the time for the consultation was not sufficient, those that requested a return date were granted a date to return to the Prime Minister and consult with us.

Those that sought to make comments in writing have done so, and I would fail if I did not thank you all, my compatriots, for your understanding and indulgence granted to us to take you through the proposals we have approved before they are tabled here, as we are now doing.

I want to make it categorically clear, that we consulted you as members of the opposition because we honestly believed in your desire to govern as legislators together with us. All of us are lawmakers and when Parliament fails or succeeds, it reflects on all of us. Not just the ruling party. Therefore, thank you once again for such cordial consultations.

Mister Speaker, that having been said, it is regrettable, that while we were genuinely consulting, there were some others who were taking documents to the me

story related to me some years ago, that Tanzanians were so unhappy with President Mwalimu Nyerere when he had appointed as a Vice-President, a Masai clansman, who apparently even fell asleep in the Cabinet Chambers.

So when he was confronted with questions, “why would you appoint such a person?” President Nyerere would apparently answer the question by confirming that he knew exactly the man he was appointing before he appointed him. President Nyerere would apparently then explain that since this Masai clansman is here, all of the Masai in their villages could look to him and confirm that indeed, it is our government, because they can identify with the Vice-President. Politics of identification.

An expensive way to build inclusivity, however, nation building is not cheap. That is why the South Africans had two Vice-Presidents at a point in time.

Why? Because the Afrikaners were ready to be led by Constand Viljoen to burn that country to the ground if need be. Each country has its own circumstances, and we are still building and reconciling this nation of ours.

Mister Speaker, as to why the Vice-President is not a running mate with the President, this is because we have learnt from the examples of other countries on the continent where this concept has been able to bring about constitutional problems. For instance, in Malawi, the Vice-President had left the ruling party to set up her own. The President could not remove her because she was elected, by virtue of being a running mate.

Other examples like Kenya lead to awkward situations when the President can only meet foreign delegations with the Vice-President present because he was also elected.

For our system, clearly, it would assist if the President appoints this Vice-President, can replace the Vice-President, but only from the Members of the National Assembly, who then resign their seat in the National Assembly once they are appointed to the Office of Vice-President.

The proposal is to retain the Prime Minister as the leader of Government business in Parliament and the coordinator of the work of the Cabinet as head of administration.

The President remains Head of State and Head of Government. The President and the Vice-President will not attend Parliament, except as provided for under the Namibian Constitution, once per annum. The Vice-President’s functions will be to deputize, advise and assist the President in the execution of his or her functions, which are out of the Parliament. The Prime Minister will be a member of the National Assembly. We believe and hope that this separation of functions will assist the smooth administration of Government.

As you are aware Honorable Members, the position of the Deputy Prime Minister is not obligatory. As a matter of fact, there was no Deputy Prime Minister when the first government was set up. It was only in the second government, that the Founding President appointed the late Hendrik Witbooi as Deputy Prime Minister. Article 35(2) states that “(t)he President may, also appoint a Deputy Prime Minister…”. To make it absolutely clear that this position is not mandatory, we propose that it reads as follows: “The President may, if deemed necessary or expedient, also appoint a Deputy Prime Minister.” End of quote.

Mister Speaker,

I now turn to the proposed amendment to the composition of the National Assembly.

As you are aware, many have complained that the Executive’s presence in the National Assembly apparently stifles the work of the National Assembly, because apparently we come here already having agreed on matters and we just bulldoze them through. I certainly do not agree with the sentiments, however, something can be said of the desire to have more members of the National Assembly to counter balance the few that would be in the Executive as Ministers, and if you may, Deputy Ministers.

Some proposals were for the total separation of the Executive, that is Ministers from the Legislature. We considered this option and debated it at length.

Our conclusion is that if that were what we started with from 1990, then maybe we would be okay, however, if we do it now, it may result in the unintended consequence of rendering the National Assembly just a mere talk shop, where back-benchers and the opposition may speak all day and hold no one accountable. As it is now, I find it the most democratic of practices that a Minister must stand in this august House, and answer to questions posed, even if the questions are ridiculous as they sometimes can be. We do not have a ward system for members of the National Assembly – it is not first past the post. To hold Ministers accountable in the National Assembly, as is the case right now, I think is more democratic when the President can appoint his people from even beyond the National Assembly, and they only report to him.

Therefore, the proposal is to increase the membership of this august House from 72 Members to 96 Members elected on the party lists. With an increase in number, I think you may agree with me that the quota for a seat will reduce and for the smaller parties, perhaps they can now make it into the National Assembly.

We also propose that the six Members who are appointed by the President become eight appointees of the President, and having considered the arguments made by the RDP during the consultations, we suggest that they too have voting powers, except when voting on issues that require a two-thirds majority, such as the amendment of the Namibian Constitution.

This proposal is made in light of previous appointments by Presidents, whereby even Ministers of Finance or Defence are appointed as Ministers by virtue of Article 35, Sub-Article (1) of the Namibian Constitution.

I regard it as an anomaly that the late Otto Herrigel, may his soul rest in peace, was appointed Minister of Finance, and in that capacity, he had to table the estimates of revenue in terms of Article 126, yet he could not vote on the very budget he tabled. Similar situation with the Minister of Defence, then Major-General (Rtd) Namoloh, who could convince the President and the Cabinet why it is we can even go to war, yet he couldn’t vote on the matter if it were brought to the National Assembly.

Therefore, the National Assembly would be composed of 104 voting Members. The concern however, was that if there was a blanket right to vote for the eight appointees, then a party may obtain 61 seats and with the addition of the eight appointees of the President, they can bootstrap a two-thirds majority. Having considered the concern, we have adapted the language to reflect that when a two-thirds majority is required, those eight appointees cannot be taken into account and cannot vote on the subject matter. I hope this addresses the concern of the RDP and others who raised the concern.

Also relating to the National Assembly, the amendment bill adjusts the quorum requirements, given the increase in numbers for the Members, and it seeks to introduce a two-tiered quorum process.

Fifty-three (53) Members, other than the Speaker or the Presiding Member are required when any voting on any matter is to take place. However, for a normal discussion when no voting is to take place, 28 Members of the National Assembly shall be regarded as sufficient for the purposes of a quorum.

This approach is in keeping with many Commonwealth parliamentary practices, and as a matter of fact, the ratio of 53 over 104 is similar to the ratio of 37 over 72, which is 51%. This quorum will be required for voting on any matter. For the lower quorum of 28 over 104, which is 27%, our lower quorum is higher than countries where for instance, the Parliament is composed of 350 Members and only 50 are required for all matters including voting. Such is the case with Kenya. India has a Parliament of 550 Members and their all-inclusive quorum is the presence of 55 Members. Therefore, our quorum of 53 is higher than the average, and so is our lower quorum of 28. I am prepared to share with you, if need be, a monograph of a short study done by the LRDC in this regard.

Mister Speaker, as the Honorable Members may be aware, there is a trend developing in SADC and beyond, that there are dedicated bodies that deal with the staffing requirements of Parliamentary staff members. Our proposed constitutional amendments make provision for this body, so that the staff of the National Assembly and the National Council as provided for under Articles 52 and 73 can be dealt with by the Parliament Service Commission.

As far as the National Council is concerned, we propose an increase of the composition of the National Council from two Members from every region, to three members from every region. As Honorable Members are aware, we started off with 95 constituencies across the country. We now have 121 constituencies. Our proposal seeks to keep pace with the increase in the population.

Questions have been raised as to why we are not increasing the number to four, in line with the 50:50 and zebra principles, which the SWAPO Party has adopted. These questions are legitimate questions, given the coming into force of the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa of June 11, 2003. I have acquainted myself with the provisions of  appointed similarly to Judges. As a matter of fact, they are judicial officers.

The proposal also contains reference to the Magistrates Commission and other Lower Courts Commissions as may be established in the future, to regularize the removal of the magistrates from the civil service as was determined in the Mostert case.

Mostert was a magistrate stationed at Gobabis and when the then Minister of Justice sought to transfer him elsewhere, he challenged successfully, that magistrates are not and cannot be civil servants and that they needed to be out of the civil service. This was done and the Magistrates Commission was established.

However, it was omitted during the second amendment to the Namibian Constitution, that the Magistrates Commission be inserted in the Namibian Constitution so as to augment the independence of the judiciary in line with the Supreme Court ruling.

However, as you may be aware, there are other lower courts and further lower courts may be created. Community Courts are lower courts. Small Claims Courts, which are likely to be set up, are also likely to be lower courts. Lower courts is a term defined in the High and Supreme Court legislations.

The Judicial Service Commission and the Magistrates Commission cannot be the bodies to deal with the appointment of their justices, removal, training and other matters, hence the proposal makes room for other bodies to regulate such matters.

Lastly on the Judiciary, the constitutional amendment suggests that the Deputy Chief Justice be a member of the Judicial Service Commission, in the place where currently, the text of the Namibian Constitution makes an ordinary judge a member of the Judicial Service Commission.

The proposal will ensure that a senior Judge is not kept out of the Judicial Service Commission while a junior Judge can be appointed to the Judicial Service Commission.

Mister Speaker, for all these matters that relate to the Judiciary, we have sought the input of the Heads of Court and I am satisfied that their views were incorporated. Mister Speaker, may I turn your attention now to the proposed Article 94B on the Electoral Commission of Namibia. All of the political parties suggested that the Electoral Commission become a constitutional body so as to enhance its integrity and independence in keeping with other electoral management bodies (EMB) in the region and beyond.

We have been convinced by this suggestion, and we provide that the President appoints the Members of the Electoral Commission of Namibia, including the Chairperson, with the approval of the National Assembly.

We also suggest that the Chairperson is the only Member of Commission to be engaged in a fulltime capacity, while further details relating to the Electoral Commission of Namibia will be discussed and contained under the Electoral Matters Bill, 2014. Unfortunately, we could not agree with the suggestion that the Chairperson be a Judge, because, and as I will soon explain, it is better that we leave the judicial officers out of these matters. Also, we do not have many Judges to spare from the Courts, and as it is, we are in dire need of more Judges. I hope my compatriots will understand this situation.

Mister Speaker, during the second constitutional amendment, we inserted the Anti-Corruption Commission in the Namibian Constitution. We gave the head and deputy head a title. That title was Director and Deputy Director respectively.

Having consulted with them, it seems that the trend and desire is that the titles be elevated to Director General and Deputy Director General respectively, in keeping with the terminology utilized throughout the Namibian Constitution in reference to the National Planning Commission for instance.

I now turn to Article 104, currently the Delimitation Commission which is chaired by a Judge.

In the proposal, it is suggested that no judge be involved in the delimitation process, as their offices are potentially dragged into adversarial confrontation, when they find themselves the subject of complaints of affected community members, instructing their lawyers to express for them their grievances against the delimitation proposals made by a Delimitation Commission chaired by the Judge in question.

It is better that we leave the Judges to independently adjudicate our disputes, and not to make them parties to our disputes.

Mister Speaker, the proposal we are tabling also seeks to replace the Delimitation Commission with the Boundaries Delimitation and Demarcation Commission.

This Boundaries and Delimitation Commission will be a permanent body, under which we envisage that all the boundary commissions, such as the Okavango River Commission (OKACOM), Zambezi River Commission (ZamCom), and all boundary related matters will be dealt with. This relates to Namibia’s external boundaries, as well as the internal boundaries of regions, constituencies and local authorities.

The difference would be that the Boundaries Delimitation and Demarcation Commission will continue to exist and not only be brought about every five or 10 years as was the case with the Delimitation Commission.

Together with the Ministry of Lands and Resettlement, the LRDC is engaging the African Union Boundaries Program for technical advice and support, and soon, a Bill on the Boundaries Delimitation and Demarcation Commission will be complete for the consideration of this august House.

Before I move on to another topic, it is important that I explain that the terminology used is deliberate. To delimit, is the legal act when two countries agree on border routes. To demarcate, is when pegs or beacons are laid to identify that border route.

What we are saying is that the Boundaries Delimitation and Demarcation Commission will not go and determine new boundaries for the Republic of Namibia.

Those ones are already referred to under Article 1, Sub-Article (4) of the Namibian Constitution.

However, as Honorable Members may be aware, Namibia recently successfully extended its maritime borders through the Seabed Authority. Therefore, some boundaries, particularly where water is the boundary, are dynamic and issues such as abstraction arrangements from shared watercourses need to be dealt with at a senior level and this body will provide that seniority and permanence desired.

Mister Speaker, on Article 110, we propose that the staff members of the Regional Councils become staff members of the Public Service under the auspices of the Public Service Commission. My experience is that the Regional Council staff are under the old Public Service Act of 1980, while the Public Service Staff Codes have been changed so much under the Public Service Act of 1995, that it is better that all these civil servants are dealt with under one legislation, that is the Public Service Act of 1995. This is the legislation under which staff members in offices, ministries and some agencies are subject to.

By the way, the Public Service is for the whole Namibia, and not just the Executive in Windhoek. The staff in the Regional Councils implementing the decentralization of services from the capital city are 100% public servants. Hence the need to regularize this position.

Mister Speaker, I now move to the matter of Regional Governors, which we propose that they become constitutional office-bearers appointed by the President as the political heads of the regions who will be the link between the central Government and the regional council, local authorities and traditional authorities. For this purpose, we propose an insertion after Article 110, in the form of a new Article 110A.

The rationale is as follows: The President is elected by direct, universal and equal suffrage, by the whole country, in an election where the entire Namibia is one constituency.

Therefore, since every region is his or her constituency, it is suggested that the President be entitled to appoint a Governor for each region to represent him or her, yet not to vest with any executive functions, because those functions vest with the President and Cabinet, and the Permanent Secretary of a Ministry in Windhoek, will be the Permanent Secretary in the regions.

I am concerned Mister Speaker, that decentralization is sometimes mistaken for federalism. Namibia is a unitary State. Regions are administrative, not executive in nature. Hence, all that is being done is that the President is appointing his or her representative in the regions. The situation where a Governor is an elected Councilor always amounted to the neglect of the particular constituency for which that Governor was elected, or the neglect of the office of the Governor.

Nothing in this proposal takes away from the functions and roles of the Chairperson of the Management Committee of the Regional Council as an elected office-bearer. Therefore, it is hoped that the elevated role of the Governor may add some respectability and that the colleagues in the regions can work together in the interests of our peoples. The Governor is an appointee of the President and will be that link between that region and the executive.

Mister Speaker, in line with ongoing reforms aimed at setting up legislation to govern the Government Institutions Pension Fund (GIPF), the function of dealing with retirement benefits of public servants is being removed from the functions of the Public Service Commission.

Clarity is also being inserted in the language so that only when it is necessary, does the President require the advice of the Public Service Commission. The way it reads now Mister Speaker, is that Article 113, Paragraph (b) implies that the President must obtain the advice of the Public Service Commission before he appoints any person to any office.

Mister Speaker, having heard the input of the various political parties during the consultations, the amendments proposed to the functions of the Security Commission no longer seek to change their role to advisory. We have been convinced that it is better that their role remains as that of recommending to the President on the appointment of the relevant offices. However, we do propose that the Head of the Intelligence Service becomes part of the Security Commission. It was an omission that such inclusion was not done with the second amendment to the Namibian Constitution, which we propose be rectified with this amendment.

We also propose that the Intelligence Service be established as a constitutional body in Chapter 15, as Article 120A, and outline how the Head of the Intelligence Service is appointed as well as the functions of the Head of the Intelligence Service.

Mister Speaker, Article 126 is amended to reflect a linguistic shift from the apartheid establishment. The Article refers to the Minister in charge of the Department of Finance.

In the South West Africa system, the Ministers here were in charge of departments while the substantive ministers were based in Pretoria heading the Ministries. We are long independent and the terminology we have come to accept in the Republic of Namibia is the Minister responsible for finance. We make this proposal as a reflection of our sovereignty.

Mister Speaker, we propose that the Central Bank have more than one Deputy Governor as is the practice around the world. The many facets of the function of a central bank require expertise relating to matters such as Administration, Banking Supervision, Financial Markets et cetera.

The attempt to create Assistant Governors as pseudo Deputy Governors in the legislation has not yielded the relevant statutory authority which the pseudo Deputy Governors were intended to have, and hopefully, with multiple governors, the Bank of Namibia may be better served by the expertise required from time to time.

We also remove the function of regulating institutions of finance from the Central Bank. That function has been placed with the Namibia Financial Institutions Supervisory Authority (NAMFISA), which regulates financial institutions.

The terms institutions of finance and financial institutions were likely to cause conflict in the future, and hence, our proposals to clarify the role of the Bank of Namibia as the Central Bank of the Republic.

Having established the Presidency, we then propose that the National Planning Commission be situate within the Presidency, given that the Office of the President will also be situate in the Presidency. This is concomitant to the creation of the Presidency, and should that proposal not be acceptable, then this falls away.

Mister Speaker, when a bill seeking to amend the Namibian Constitution in terms of Article 132 of the Namibian Constitution obtains a vote of two-thirds majority from the voters in a referendum, the Namibian Constitution under Article 132, Sub-Article (3) currently provides that the President shall deal with it in terms of Article 56. During our consultations, we found that this language is not clear enough and with the proposed amendment, seek to make it abundantly clear what it is that Article 56 provides, which is: that the President shall assent to the bill by signing the bill and the bill shall be published in the Gazette as an Act. Nothing more is suggested than what is already there.

Mister Speaker, Schedule 2 already exists. What is suggested is its amendment, by dividing it into two parts. The first part would contain an oath or affirmation to be taken by the Vice-President, Prime Minister or Deputy Prime Minister.

The second part would be the current oath or affirmation contained in Schedule 2, which is for Ministers and Deputy Ministers.

Lastly Mister Speaker, we provide for the resolution of ties in the process of allocation of seats in the National Assembly. Since we had already made provision for the resolution of ties by lot, the same is proposed as a constitutional amendment to Schedule 4 as it should have been done with the Electoral Amendment Act of 2009.

As I have indicated in the beginning, some of the other proposals are technical and are necessary due to legal considerations. If we make the provisions we do relating to the Intelligence Service, we need to ensure continuity with what has been done already as it exists.

The same for the Electoral Commission of Namibia. If we do not do so, we may stand the risk of being challenged that since those bodies are now only created in the Namibian Constitution, we cannot rely on what was done under their legislations or by them before the coming into force of the constitutional amendments. This is being done ex abundanti cautela, in the absolute abundance of caution.

Mister Speaker, as is evident, not all of these amendments relate to the ELRP. Most of them have been amendments deemed necessary since it is not everyday that a constitution is being amended. As a matter of fact, if we were not convinced of the need to place the ECN in the Namibian Constitution and other matters, we probably might not have had the need to look into a constitutional amendment at all.

It is also evident that the constitutional amendments are not meant to benefit the Prime Minister as is alleged. These constitutional amendments are meant to improve governance overall, given our experiences in Government and benefit generations to come. Obviously, the constitution is a living document, reflecting the aspirations of the nation to borrow from the language of the Late Chief Justice Mahomed, may his soul rest in peace. Maybe the changes today might not be obtainable and desirable 23 years from today. That is possible, and it should be the right of those Parliamentarians to discuss and debate, as we are doing, the need to make amendments to the Namibian Constitution, so long as those changes are being done in terms of the Namibian Constitution.

I subscribe to the sentiments of other notable lawmakers from the United States of America, in particular, Thomas Jefferson, the principal drafter of the Constitution of the United States of America, which has since been amended 17 times, and who held the views that a constitutional amendment should be the last resort. I would like to quote what is attributed to this founding father of the world’s oldest constitution as follows:

I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because, when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects.

But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors. End of quote.

These words should guide us in the deliberations of amending our constitution.

It is a young constitution, yet it is a growing constitution. Many of the constitutional changes on the African continent post-1990 reflect excerpts from our constitution, and this lends to us the confidence that our founding mothers and fathers had done something right. Yet as can be seen, even they were not immune to mistakes and inadvertent omissions, which we now seek to correct.

They could not have anticipated some of the governance challenges we are now seeking to address.

Their duty was to lay the foundation for peace, stability and a secure future for a healing and reconciling nation. They have done so, and they have done so with distinction.

In fact, they have outdone themselves, and we remember very well the role played by their chairman, the Right Honorable Dr Geingob, whom I salute with the greatest respect and admiration. Those comrades we left on the battlefield would be so proud of us today my comrades.

I therefore submit the Namibian Constitution Third Amendment Bill, 2014 for consideration and discussion by the National Assembly.

I thank you Mister Speaker for your indulgence.

Honourable Dr Albert Kawana, MP The Minister of Presidential Affairs & Attorney-General


New Era Reporter
2014-08-04 10:01:53 4 years ago

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