Dr Vincent Mwange wrote a very interesting piece that was published last Friday (15th May 2020) in New Era. The opinion piece that was titled The dissolution of Namibian Parliament at the end of its term argues that the Namibian parliament should be dissolved at the end of its term, i.e. before the holding of the next national elections. The esteemed scholar argues that it is “good governance practice” to do so. He further reasons, “…it is a common practice in most countries to dissolve parliament in preparation for new elections.” The author also rightly acknowledges that, at this point in time, the Namibian Constitution does not require the dissolution of parliament before the holding of the next national elections.
In principle, I do not have major issues with Dr Mwange’s reasoning. However, I beg to differ with him on two issues. The first one is his reference to the National Assembly as the Lower Chamber and the National Council as the Upper Chamber. The National Council is the House of Review, but that does not necessarily imply that it is the Upper House. The bottom-line is, reference to the National Council as the Upper House does not have any constitutional basis. Article 75 (4) (b) of the Namibian Constitution, that deals with proposed amendments after a Bill has been referred back to the National Assembly by the National Council is explicit in stipulating that the National Assembly is not under any obligation to accept amendments referred to it by the National Council. Technically speaking, proposed amendments by the National Council would be binding on the National Assembly, if the former was the Upper House. As things stand, the National Assembly can accept or reject proposed amendments by the National Council. The question is, on which constitutional or legal basis can we refer to the National Council as the Upper House (Chamber)? I think it is very important for us to be clinical in how we use terms and phrases, because terms like Lower House and Upper House have far-reaching implications. In my humble understanding, the underlying principle of an Upper House of parliament is that such a house has veto powers to override provisions in a bill, for example, that comes from the Lower House. In terms of our constitutional dispensation, the National Council does not have such powers.
My second concern with Dr Mwange’s piece is his argument that ‘…during the dissolution of Parliament, ministers should remain in their positions but should not be referred to as Members of Parliament because nobody is an MP until they are sworn in as new MPs.’ Unfortunately, that line of reasoning flies in the face of what our constitutional democracy is all about. As I argued last year in a piece that was published in New Era before the November 2019 national elections, the premise of our constitutional democracy is the “sovereignty of the Namibian people.” Article 1 (2) of our constitution states that: “…all power shall vest in the people of Namibia who shall exercise their sovereignty through the democratic institutions of the State.” In short, this implies that both backbenchers and ministers serve on the basis of a “borrowed” mandate from the Namibian people. Article 35 of the Namibian Constitution requires the President to appoint ministers from Members of Parliament, whereas Article 41 obliges ministers to account both to the President and to parliament. It therefore follows that if Cabinet ministers were to continue in their positions after the dissolution of parliament, then you would have a government that would be illegitimate because it would not have the people’s mandate. In the same vein, you would have a President with a full mandate (because he/she is elected directly by the people), but presiding over a Cabinet that lacks legitimacy. To suggest that Cabinet ministers should continue to serve after the dissolution of parliament would present both legitimacy as well as accountability problems. Dr Mwange’s proposed scenario in this regard would therefore create a serious constitutional crisis.
His argument on this particular issue could only stand on solid ground if he were to propose constitutional amendments whereby the President would not be required to draw his/her Cabinet ministers from parliament but from a pool of experts outside parliament.
This would be along the lines of the American model where the President can appoint experts from the public to serve in his/her Cabinet; and who are not necessarily congressmen (women) or senators. Rosa Luxemburg, a Polish Marxist scholar of Jewish extraction once said: “. without the free competition of ideas, life dies…” I appreciate Dr Mwange’s otherwise well-reasoned scholarly contribution and my critique should be seen in the spirit of that timeless quote from Rosa Luxemburg.