Lawyers representing National Assembly speaker Peter Katjavivi and Landless People’s Movement leaders Bernadus Swartbooi and Henny Seibeb went head-to-head on Wednesday in a constitutionality challenge culminating from the infamous 2021 State of the Nation Address.

On 15 April 2021, Swartbooi and Seibeb brought the joint sitting of Parliament to a standstill while President Hage Geingob delivered his annual state of the nation address. 

The pair caused several disruptions and got embroiled in a shouting match that eventually ended in their removal from the session.  

However, the Supreme Court in August 2021 ruled that Katjavivi’s decision to suspend Swartbooi and Seibeb from Parliament was unlawful.

In the current suit, the pair is seeking an order that will review and set aside the decision of the Rules Committee purportedly taken on 21 April 2021 to refer their case matter to the Privileges Committee then took the decision to investigate their conduct.

They also want the court to set aside and declare the decision of the National Assembly to adopt the findings of a report from the Privileges Committee entitled, ‘Investigation into the conduct of honourable Bernadus Swartbooi and honourable Henny Seibeb on 15 April 2021 during the state of the nation address’, null and void.

The LPM leaders further want the court to set aside certain sections of the Standing Rules and Orders and Internal Arrangements, of the National Assembly, declared unconstitutional.

These sections deal with the restrictions of the courts to determine whether the actions and decisions of the National Assembly and its committees are lawful or not.

Legal submissions

On Wednesday, Swartbooi and Seibeb’s lawyer Kameel Premhid, assisted by Patrick Kauta, said the court is entitled to intervene with the affairs of another organ of State when that organ of State breaches the constitution. 

He said the ousting of the court’s jurisdiction can only occur after it has been established that no breach of right or law has occurred. But a breach has occurred and it was proven when the Supreme Court in August 2021 ruled that Katjavivi’s decision to suspend Swartbooi and Seibeb from Parliament was unlawful, according to Premhid.

“The speaker, his attempt to oust the court’s jurisdiction is simplistic in the extreme and does not accord with the prevailing position in Namibian law. In essence, the speaker contends that simply because the conduct complained of occurred in Parliament, the court cannot scrutinise it. That is mistaken,” said Premhid.

He said as it stands, Swartbooi and Seibeb have no other alternative but to be heard by the court.

On the other reliefs sought, Premhid said the Rules Committee is not empowered to refer a matter to the Privileges Committee. Thus, their action to do so on 21 April 2021 was unlawful.

He further said the Privileges Committee was improperly constituted as it excluded Swartbooi who had a right to attend and participate in its affairs.

“The exclusion of the first applicant from participating in the affairs of the Privileges Committee based on his unlawful suspension, renders the Privileges Committee’s conduct legally defective,” said Premhid.

He argued that both the decision to refer and the referral itself, and every subsequent decision by the Privileges Committee and the National Assembly, is unlawful and justifies being reviewed and set aside, alternatively declared, unlawful.

Responding, Katjavivi’s lawyer Vincent Maleka assisted by Sisa Namandje said Parliament is right by excluding the court when dealing with its internal affairs. 

He said under Article 60 (3), Parliament had passed the Powers, Privileges and Immunities of Parliament Act, 17 of 1996 which provides that Parliament shall have full powers to control, regulate and dispose of its “internal affairs” and that subject to Articles 5, 79 (2) and 80 (2) of the Namibian Constitution no proceedings of, or decision taken by, Parliament in accordance with the relevant Standing Rules and Orders or the Privileges Act itself shall be subject to any court proceedings.

“We submit that the contention advanced by the applicants if accepted, would dilute, diffuse, and compromise the right of Parliament to have full power to regulate, control, and dispose of its internal matters to the extent that Parliament or speaker is unable to take timely measures, when necessary,” said Maleka.

On the referral to the Privileges Committee from the Rules Committee, Maleka said there is no prohibition in the Privileges Act or in the Rules and Standing Orders on the basis of which it could sustainably be argued that the Rules Committee (which has no power to investigate members) could not, once it comes in possession of information of misconduct on a part of a particular member, defer or refer the information to the Privileges Committee. The matter was heard by judges; Tomas Masuku, Boas Usiku, and Eileen Rakow. 

-mamakali@nepc.com.na