Yarukeekuro S. Ndorokaze
The question of whether Namibian President Dr Nangolo Mbumba is acting or not has dominated the social media space over the last few days.
A rather strange narrative suggests that Dr Mbumba, sworn in as contemplated by Articles 29 (4) (a) and 34, is acting in that role. This argument is in my view flawed on several fronts.
It is fact that a vacancy arose in the Office of the President on 4 February 2024, with the passing of president Dr Hage G. Geingob at 00:04.
Article 29 (4) (a) is relevant in this case, and provides for how the vacancy should be filled. With emphasis on the “vacancy being filled”.
It states that “If a President dies, resigns or is removed from office in terms of this Constitution, the vacant office of President shall be filled for the unexpired period thereof as follows: (a) If the vacancy occurs not more than one (1) year before the date on which Presidential elections are required to be held, the vacancy shall be filled in accordance with the provisions of Article 34 hereof”.
It, therefore, follows that once effect is given to that provision, the vacancy will cease to exist.
Article 34 provides “the who” in this equation, as it contains the order of succession in the relevant instance.
“If the office of President becomes vacant, or if the President is otherwise unable to fulfil the duties of the office, the following persons shall in the order provided for in this Sub-Article act as President for the unexpired portion of the President’s term of office, or until the President is able to resume office, whichever is the earlier…”
Seemingly, it is this provision that got the “acting chorus” even louder, with “…in this Sub-Article act as President”. This part, therefore, contemplates an “Acting President” for the unexpired period, so the argument goes.
In my view, “act as President” in this context is similar to “serve as President” or “work as President” or “perform as President”. Consequently, this provision envisages a substantive President and why not, seeing that the vacancy has been filled.
There are instances where the Constitution contemplated an Acting President, and those sounded different.
Article 34 (2) in part refers to “act in his or her stead in respect of such specific occasions or such specific matters, and for such specific periods as in his or her discretion may be considered wise and expedient.” The person so appointed by the serving President shall be an Acting President.
Further, Article 28 (2C) at some points reads that the serving Vice President shall “assume the Office of President in an acting capacity until the assumption of office by the President elected in the subsequent presidential by-election as contemplated in Article 29(4)(b)”.
These are some of the instances in which there would be an Acting President.
Chief Justice Mahomed continues to speak to us on the interpretation of the Constitution, stressing that “A Constitution is an organic instrument. Although it is enacted in the form of a Statute, it is sui generis. It must broadly, liberally and purposively be interpreted so as to avoid the “austerity of tabulated legalism”.
The purpose of Article 29 (4) (a) is to ensure that the vacancy in the Office of the President is filled, while Article 34 provides the sequence of succession.
Some opined that it was wrong to administer the oath to President Mbumba, but I do not see how anybody can assume that Office without taking an oath, in the circumstances envisaged by Article 29 (4) (a). The oath is the undertaking by the incumbent, because failure to perform as pledged has serious consequences.
I dare say, even if he was just serving for a day or hours, the taking of oath is mandatory before acting or serving as President.
A further point is being made about the need for a President to be elected directly by the voters.
This is a solid point, but like any other great points, there are exceptions, and the vacancy arising less than 12 months before elections is one such exception.
So, Dr Nangolo Mbumba is the fourth President of Namibia. Put differently, he is the fourth person to be lawfully sworn in as President of Namibia, to act or serve as the President.
*Yarukeekuro S. Ndorokaze is a seasoned media practitioner and lawyer. He writes in his personal capacity.