Vetaruhe Kandorozu
The term “trias politica” or “separation of powers” was coined by Charles-Louis de Secondat, baron de La Brède et de Montesquieu, an 18th century French social and political philosopher. His publication, ‘Spirit of the Laws’, is considered one of the great works in the history of political theory and jurisprudence, and it inspired the declaration of the Rights of Man and the Constitution of the United States.
Under his model, the political authority of the State is divided into legislative, executive and judicial powers. He asserted that to most effectively promote liberty, these three powers must be separate and act independently.
The Namibian constitution has been hailed and applauded as one of the best constitutions or legal instruments in the world. However, these prizes have been there and started to dwindle when we started the first amendment of giving the third term to the Founding President Sam Nujoma. This has not been taken lightly by the international community, more especially the western world.
This amendment has resulted in the creation of CoD under the stewardship of someone who was a representative of the State as an ambassador in the United Kingdom.
Our constitution continues to face setbacks when the power to elect the regional governors was taken away from the people and was solely transferred to the president of this country. The constitution was amended to give power to the president so that he can appoint governors to represent him in the region.
The citizens have been robbed of their constitutional rights to have their own governor of their regions among their direct elected regional councillors who will preside over the affairs of the region. This was an indication of consolidation of power rather than the separation of power that is a key to democracy.
Article 35 of the Namibian constitution talks about the composition of the Cabinet, and I quote: “(1) Notwithstanding Article 29(2A)(c), the Cabinet shall consist of the president, the vice president, the prime minister deputy prime minister, and such other ministers from the members of the National Assembly, including members nominated under Article 46(1)(b) hereof, for the purposes of administering and executing the functions of the government.”
This is where our Constituent Assembly members went wrong and this is one of the articles of our constitution that needs immediate attention for amendment. In Namibia, separation of powers is only applicable and effective at the level of the Judiciary because judges and magistrates are full time and they are neither members of the Legislative nor Executive. However, at the second level, there is confusion between the Legislative and Executive because, in order to be a member of the Executive or Cabinet, one needs to be sworn in as a member of the National Assembly, something that must be corrected if we want to have effective separation of powers.
Members of the Cabinet must not be a member of the National Assembly or National Council. A member of the Executive or Cabinet must be appointed from other members of the civil service, be it an expert in a particular field or someone with huge experience whom the president have trust and confidence that he or she will serve his interest to the best of his/her ability.
The current provision on the constitution has deprived the main role of the National Assembly to have an oversight duty over the Executive or Cabinet members.
Now it is like the Executive is supervising itself which is against the doctrine of separation of powers. Members of the Executive are a very powerful team because they are not accountable to legislators because they themselves are legislators. The Executive in Namibia are the coaches, referees and players.
Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.
While separation of powers is key to the workings of many government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap; they are too complex and interrelated to be neatly compartmentalised. As a result, there is an inherent measure of competition and conflict among the branches of government. Like in the case of parliament, there was a case when the members of Executive/Cabinet were more than the members of parliament, an action that has defeated the doctrine of separation of powers and checks and balances. Therefore, there is a need to leave members of the Legislative to concentrate on making laws and appropriate government funds, while the members of the Executive are sourced from the civil service to implement government programmes and be accountable to the National Assembly.