Windhoek
Namibia’s democracy and the strength of its institutions have passed a stern test of character following events related to the ongoing citizenship row – sparked by a foreign couple who successfully fought for the citizenship of their Namibian-born child.
Yesterday’s rejection of the Namibian Citizenship Amendment Bill by the National Council, dubbing it unconstitutional, coupled with Cabinet’s decision on Tuesday to respect the Supreme Court’s order to grant the child full Namibian citizenship, was yet another piece of evidence that the country’s institutions remain intact and non-manipulated.
A constitutional expert dubbed this series of developments “a victory for democracy”.
The National Council – which is the house of review – yesterday served the National Assembly a cold pie when it declared unconstitutional the new Bill, proving armchair critics wrong that it cannot reject what has been endorsed in the National Assembly.
The proposed amendment followed a bid to override a June 23 landmark Supreme Court ruling in which government was ordered to issue a full Namibian birth certificate to a child born to foreign parents but on Namibian soil.
This was after the De Wilde family dragged home affairs minister Pendukeni Iivula-Ithana to court for her ministry’s refusal to issue a birth certificate to their child, Bram, born on October 27, 2009.
Constitutional experts were, however, quick to warn yesterday that the National Council – and civil society which pushed for the bill to be scrapped altogether – not celebrate just yet.
This is because the National Assembly can – if convinced it was right in the first place – still ignore the recommendations made and forward the bill to the president for his signature, if a two-third majority of its members vote in favour of that route.
Yesterday the National Council adopted a report by a select committee after consulting and incorporating views of the Ombudsman John Walters, Esi Schimming-Chase of the Law Society of Namibia, University of Namibia’s Nico Horn, human rights lawyer Norman Tjombe, as well the director of the Legal Assistance Centre Toni Hancox.
When he motivated the report, Swapo MP Cletius Sipapela indicated that the interpretation of the Constitution should be left to the Supreme Court as parliament cannot be both the player and referee at the same time.
He stressed that the same measure used to grant Namibian citizenship to the daughter of American movie stars Brand Pitt and Angelina Jolie should be used to issue citizenship to others seeking it on the same grounds.
Sipapela then advised that the National Council object to the principle of the bill and refer it back to the National Assembly to reconsider its principle, a call unanimously adopted by all members present yesterday.
Just shortly after that decision, Horn told New Era: “If this bill had gone through into law it would have ended up at the Supreme Court again.”
“I must commend the National Council for rejecting this bill and not finding grounds to pass it on grounds of constitutionality and legality.”
“This is a victory for the Council in their mandate as the house of review, for participatory democracy and the people of this country.”
He emphasised: “It is only the Supreme Court which is tasked with the interpretation of the Constitution and what the National Assembly is trying to do is override that interpretation by changing it, which they can’t do.”
National Assembly Speaker Peter Katjavivi said he is yet to receive and study the communication from the National Council before pronouncing himself on the fate of the bill.
Katjavivi however stressed that there are provisions within parliament’s standing rules and orders that give the National Assembly powers to affirm the principle of the bill and pass it to the head of state for his approval in the event no amendments were proposed during the review.
Former National Assembly Speaker Theo-Ben Gurirab said the National Assembly has always operated within the confines of its power as provided in the Constitution.
“Maybe if you talk about a moral issue then we can perhaps intellectually debate – but legally there is nothing wrong as the Constitution makes it clear that all legislative power shall vest in the National Assembly,” said Gurirab.
“When we are sitting in our private meetings of the Swapo Party political bureau and central committee I also argue like those people, but they cannot go on a moral point and must deal with what currently stands in the law.”