It is a principle of law that judges should not intrude on the domain of other branches of government, and in the event where judges intrude in the domain of the executive or legislature, this intrusion is termed as judicial overreach. The High Court relied on this principle when it dismissed the Swartbooi and Seibeb vs Katjavivi case. In the said case, Swartbooi & Seibeb argued that they were unprocedurally, indefinitely suspended from attending sessions of the National Assembly. Hence, they applied to the High Court for declaratory relief in that regard. The High Court held that it would be overreaching in legislative matters if it grants the declaratory relief sought by the two MPs on the basis that such a case can be competently dealt with by the National Assembly’s privileges committee, and therefore dismissed the case.
I am of the view that this judgement handed by the High Court in the Swartbooi and Seibeb vs Katjavivi case is from a legal interpretation perspective incorrect. Moreover, the judgement that the court cannot overreach in legislative matters such as that of Swartbooi and co is constitutionally incorrect. The prohibition of arbitrariness is a constitutional value, and the court should have considered using constitutional values in its adjudication of this particular case. The Namibian constitution was established primarily because of the fight against arbitrariness that persisted in Namibian society, and amidst this, the prohibition of arbitrariness is paramount and the backdrop value of the Namibian constitution.
Accordingly, if Swartbooi and co allege arbitrariness, the court must have considered making a value judgement in that regard, and not outrightly dismiss the case because of the restraining principle of judicial overreach. Constitutional values are higher norms that must guide interpretation, and must be seen as instruments to develop, give content to, or provide coherence to entrenched fundamental rights. Subsequently, I am of the view that the court would not have intruded in the domain of the legislature if they had made a value judgement to this case because it is a principle of law that everyone is equal before the law, and the legislature is no exception to this rule. Swartbooi and co are democratically elected persons who serve the interests of the Namibian people who elected them. The system of democracy prevails in Namibia, and elected representatives must be trusted to observe their commitments under the Constitution. In brief, the arbitrary suspension of Swartbooi and co from parliament undermines the principles of democracy. The law is there to prevent the strongest members of society from dominating the weakest. In this light, Swartbooi and co have the opportunity for their case to be heard in the Supreme Court for restorative justice in this regard. Restorative justice can be defined as a process in which all the stakeholders affected by an injustice have the opportunity to discuss the consequences of the injustice, and what might be done to put them right.
This article does not seek or intend to challenge the status quo. However, the article is primarily aimed at adding to the legal jurisprudence of constitutional interpretation.