Tuhafeni Helao
Parliament ought to be the unequivocal state arm that aptly represents the needs and aspirations of all citizens in Namibia. The parliament is constituted of politicians who have been voted in by the electorate through a proportional representation system, giving them the legitimate authority to represent people’s interests. Therefore, it is the constitutional obligation of parliamentarians to rise to the occasion and advance issues of national interest without being expurgated and denied such essential national responsibility.
In a nutshell, ‘a parliamentary democracy is a system of government in which citizens elect representatives to a legislature to make the necessary laws, policies and decisions for the country’. This implies that parliament is a direct representation of the people. Substantially, in a constitutional democracy, there is a need for a ‘genuine’ separation of powers to promote justice, fairness, accountability, transparency and good governance.
The three arms of the state, though intersected, should perform their respective functions uninfluenced, uncoerced and independent of each other. The constructions in which the legislature and executive are practically inseparable undermine and defeat the principle and foundation of democracy and, by implication, the purpose and function the parliament was supposed to serve. The unitary nature of the state could not necessarily be a justification to keep the current political arrangement. This political arrangement impairs service delivery and effective governance.
Some may argue that many African legislatures have taken the shape they are today because it is the constitutional requirement. Although this argument appears to be persuasive, the questions are: who have crafted the constitution? Is the constitution cast in stone? Who has the power to amend the Constitution? This article argues that, if there is anything that stands in the face of government institutions to successfully provide equitable services to the people, such impediment must be identified and corrected.
Therefore, when politicians serve in both the legislature and the executive, it would compromise and contradict the principles of justice, fairness, accountability and transparency, to say the least. Structurally, one cannot pass laws and policies (legislature) and “ambush” the same on the other side, in terms of implementation (executive). It is not prudent for the executive, and by extension cabinet ministers to be members of the legislature. The only rationale is to amend Article 35 of the constitution to give rise to the genuine separation of power.
It will allow the President to appoint cabinet ministers who are not members of the legislature. It promotes justice, fairness and a serious and unbiased focus on societal issues. It would also minimise corrupt practices and poor governance, thus reassuring good governance because each state organ “stays in its lane”. One needs not be a politician or administrator to understand the conundrum and challenge presented by Article 35 of the constitution, in terms of law, policymaking and implementation.
While the three arms of the state are constitutionally obligated to play balanced and impartial functions, in a representative democracy, the legislature should have an upper hand because that’s where ‘democracy, rule of law and government directions’ start, be it policies, laws, ratification of international conventions, etc. Logically, parliament should not be ‘the player and the referee’ at the same time. The executive should not form part of the legislature because it undermines the oversight and accountability functions. Parliament regulates and deregulates important socio-economic issues in terms of law and policymaking, oversight and control, and enforcing accountability. When the executive is inseparable from legislature, it may result in a lot being lost in translating and implementing government policies.
It breeds systematic corruption practices and a skewed application of government policies and programmes. Eventually, this structural arrangement puts the executive in a ‘comfort zone’ due to ineffective oversight procedures.
Put differently, this is a deliberate practice and opportunity presented by the constitutional provisions to promote the interests of the few at the expense of the poor majority.
The article postulates that it couldn’t have been the intention of the constituent assembly to have a constitution that apportioned more powers and double functions into the hands of the so-called elites or individual few, but perhaps a situation in which laws and policies are inclusively encouraged to promote the broad interests and aspirations of people. From the onset, the real separation of powers could have made this practice tenable. It is irrefutable that the Namibian Constitution was adopted at a time when everyone’s mind and heart were focused and longed for freedom and independence. Thus, the constitution in place today is a document of compromise and mutual settlement to have gotten Namibia independent then.
Realistically, it could have been feasible to revert to the constitution, especially during the early years of independence and self-governance, to reflect and make diagnostic examinations and inquiries of the constitution and revisit some provisions that handicapped the delivery of equitable services.
A cautious approach to this exercise could have identified and corrected all shortcomings that are facing society today. This exercise could include reflecting on the practicality of certain provisions of the constitution against the reality on the ground, or even called for a referendum to gauge the views and opinions of the governed.
The question, therefore, is whether it is insurmountable to amend the constitution and alter provisions that have direct implications on policymaking and implementation, accountability and transparency procedures, and acceptable governance.
Any political establishment, particularly the governing party which holds the key to decision-making and governance, could be doubted for poor service delivery, especially when such impediments are a result of laws or policy discrepancies. The hesitancy thereof insinuates a philosophy of politically repudiating the masses the opportunity to thrive, while allowing the power that is a deliberate and unfair advantage to continue benefiting from what is called “legal constitutional provisions”, which could have been amended and corrected to benefit all, had the political will to do so prevailed.
This article concedes that the constitution is the supreme law of the land, hence, must be treasured and maintained. However, it appears that some of the provisions of the Constitution “drew a line in the sand”, and relegated society to the periphery of life and livelihoods.
Eventually, those constitutional provisions have created a situation whereby, if you open your eyes and read between the lines, more powers are concentrated in the hands of the few when there is no distinction between the executive and the legislature. Thus, to improve accountability, transparency and make governance effective and inclusive, there is a need to amend Article 35 of the Namibian constitution, including all other constitutional provisions that impede inclusive socio-economic arrangements.
This will give practical effect to Article 41, Chapter 7, and also effectuate Article 1 (2) that “all power shall be vested in the people…” and allow the maximum upholding and application of Chapter 3 of the constitution untrammelled. In the corridors of power, this may seem to be an uncharted consideration, but not a tall order to fill.
People should reign more supreme and be sovereign, and so the constitution must reflect their desires and aspirations.