Lahja Nashuuta

The removal of former Agriculture, Water and Land Reform minister Mac-Albert Hengari from Parliament has triggered mixed reactions, with several political and legal commentators questioning the legality of President Netumbo Nandi-Ndaitwah’s move. Hengari was fired from Cabinet towards the end of April, following his arrest on allegations of attempted bribery after claims he was involved in improper sexual conduct with a minor.

Popular Democratic Movement (PDM) leader and former official opposition leader McHenry Venaani contends the President lacks the constitutional authority to recall a sitting Member of Parliament (MP). “The president can only dismiss someone from a ministerial position, but not from Parliament. Only the political party that nominated the MP has the authority to recall them from the legislature. In this case, the proper process should have been sanctioned by the party, not the presidency.”

Venaani added that although Hengari’s legal team may win what he described as a “pyrrhic victory”, Nandi-Ndaitwah’s influence within the ruling party could complicate the matter. “The complexity of the relationship between the President and the ruling party always favours her wishes,” he observed.

Echoing similar concerns, former National Unity Democratic Organisation legislator Joseph Kauandenge said once a person is sworn in as an MP, they cannot be arbitrarily recalled, even if appointed by the President. “Article 48 outlines the qualifications and disqualifications for Members of Parliament. A member can only be removed if they no longer meet those qualifications, such as being convicted and sentenced to more than 12 months in prison,” he stated.

“It is unfortunate that the President acted ultra vires in this case. Should Hengari take the matter to court, I believe he stands a strong chance of winning,” Kauandenge noted.

He continued: “In line with our constitutional principles, one is presumed innocent until proven guilty by a competent court of law. A mere arrest is not grounds for removal from Parliament.”

He further argued that even in cases where the appointing authority seeks to withdraw an appointee, principles of natural justice must be followed. “The individual must be afforded a disciplinary hearing before any final decision is made,” Kauandenge maintained.

Constitutional

On the other side of the debate, political analyst Dietrich Remmert believes the president acted well within her constitutional rights, citing Article 32(6) of the Namibian Constitution. “From my reading of the Constitution, the President does have the authority to appoint and consequently remove non-voting Members of Parliament,” he said.

He further asserted: “These appointments are typically made to bring specialists or individuals with valuable expertise into the National Assembly, particularly those who may not have gone through the electoral process.” Remmert emphasised that these eight appointees are essentially tied to their ministerial roles, and once removed from Cabinet, they automatically lose their seat in Parliament. “It’s a chicken-and-egg situation. Hengari was appointed to Cabinet, and that is what gave him a seat in the National Assembly. Once he’s out of Cabinet, he no longer has parliamentary standing,” he stressed.

The analyst acknowledged that the constitutional language might not be perfectly clear, but argued that Article 32(6) gives the President discretionary power to remove his or her appointees.

“The provision states that anyone appointed by the President may be removed through the same process they were appointed, unless otherwise stated in the constitution or other legislation,” he stated. This interpretation is supported by another former MP, political scientist and legal scholar Maximiliant Katjimune.

“Unlike MPs elected through party lists, the eight presidential appointees serve at the pleasure of the President. Article 32(6) clearly gives her the power to remove them,” he believes. He further argued: “I haven’t reviewed all the legal arguments made so far, but in my opinion, Article 32(6) is unambiguous. The President has full authority to remove her appointees, unless a specific constitutional or statutory provision says otherwise. Hengari’s case falls squarely within that framework.”

Meanwhile, the Presidency has been on record this week as saying Nandi-Ndaitwah acted within her constitutionally-vested powers when she axed Hengari.

The National Assembly, however, said the Constitution does not explicitly point to the President’s power to remove an appointed MP.