• November 17th, 2019

ECN position represents legal positivism in practice



The Electoral Commission of Namibia as a custodian of election related matter in our Republic has taken a bold stand to enforce strict compliance of political parties to both statutory and constitutional provisions that require aspiring parliamentarians first to resign from their remunerated public office positions before accepting nominations as candidates of their respective parties.

Firstly, I wish to make a disclaimer that I am a clinical scientist and not an authority to talk with absolute certainty on the subject matter. 

However, I must confess that during my law degree studies through distance, which I later discontinued, in a module called Legal Methods, I learnt about a principle of legal positivism. 
It presupposes that one must regard law as being what is decreed irrespective of its moral goodness or badness. 

It is in this context that my first reaction to the matter was that if the reading of the Electoral Act and the Constitution by the ECN is correct, then this represents legal positivism in practice.

Anomalies of our system 

The Namibian system is a toothless bulldog that lacks institutions for soft protection of human rights and freedoms that are enshrined in the Constitution unlike our South African counterpart that has the Human Rights Commission; as a result the judiciary has become a combative theatre for hard protection. 
 The constitutional office of Attorney General despite the provision of article 87(c) that requires it “to take all action necessary for the protection and upholding of the Constitution” is compromised by article 87(b) that requires it “to be the principal adviser to the President and Government” hence it is simultaneously unlikely to serve and protect the interest of the public against the abuse of power by the government and at the same time be loyal to the appointing authority. 

The combativeness is triggered by the under-utilization of article 80(2) of the Constitution by the government, civil society and political formations as a measure to seek judicial interpretation on matters of public interest. 

Our pre-occupation as a society has been, and to continue to utilize courts primarily for civil disputes and criminal prosecutions. 

Thus, we miserably failed as citizens to make use of the constitutional obligation imposed on the judiciary as part of its original jurisdiction to seek interpretation, implementation and upholding of the Constitution and the fundamental rights and freedoms guaranteed thereunder. Despite this challenge, one must exercise a measure of recognition, credits and commendation to the judiciary leadership under the Lordship Damaseb, JP who in 2014 introduced case management system and other alternative dispute resolution avenues as part of the Rules of High Court. 

The question uppermost in your perplexed faces if I may speculate is what a hell has this garbage to do with the issue at stake? 

I am stressing the point that it is a responsibility for instance of ECN, Attorney General, Legal Assistance Centre, NID, political formations that it is in the public interest to approach the judiciary for clarity interpretation in so far as the difference between nomination and election is concerned; the inconsistencies between a constitutional right conferred in article 17(2) to be elected to public office and constitutional limitations imposed by article 47(1)(e) or 47(1)(f) as well as statutory limitation in section 77 of the Electoral Act as sanctioned by article 17(3). The complexity of the matter is that article 17 allows citizens to be elected to public office whereas article 47 of the same Constitution placed limits on the enjoyment of that right, and it is here where the court interpretation on the intention of constitutional drafters is needed. The issue is no more the intention of the legislators but the intention of the constitutional drafters since in the light of constitutional ambiguity emanating from conflicting provisions, the provisions of the Electoral Act have now become secondary matters for deliberation.

It is submitted that the legislators were acting in consonant with article 47, also in line with article 17(3) that bestowed mandate in the public interest to abrogate, suspend and impinge the right. I submit due diligence was supposed to be applied when article 17(3) was considered, but unfortunately the corresponding right in article 17(2) was ignored. Amending electoral act will partly help, but the harmonization of the two constitutional provisions are imperative and as a matter of urgency and necessity should be the pre-occupation of our new successful Members of Parliament.

Is there a need to revisit the matter?
On the basis of the aforesaid, I submit in affirmative that there is a need for an amendment to the electoral act and/or constitution. The Preamble to the Constitution recognizes that we emerged from ashes of colonialism, racism and apartheid, and therefore the same Constitution that recognizes the effects of these cannot purport through article 47 to disenfranchise the citizens. The least the enabling legislation can do is inter alia to borrow section 15 of the Traditional Authorities Act (No.25 0f 2000) that regulates transition between political office and traditional leadership office; allows taking of leave for the duration of six weeks (between nomination and election) and resignation immediately after the electoral process. 

I respectfully submit that these provisions of constitution and the electoral act in their current form are draconian, arbitrary, capricious. However, as a law-abiding citizen, considering the principle of legal positivism, I am in support of the application by the ECN until due process of law to change them are effected. 

*Dr Rihupisa Kandando, a Specialist Clinical Biochemist, teaches Chemical Pathology and is Head of Pathology Department, School of Medicine, Unam. The views are expressed in a personal capacity.


Staff Reporter
2019-10-25 08:13:30 | 23 days ago

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