Shanghala unfazed by ‘ultra-leftist’ amendment criticism

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Law Reform and Development Commission (LRDC) Chairman Sacky Shanghala justifies the much-hyped proposed constitutional changes that are currently debated in the National Assembly.

How does the law reform or development process start? Who initiates this process?

There are many ways to make laws. A ministry can decide there is an issue that they are regulating which requires legal empowerment for them to exercise their function. The ministry can then draft a law and submit it to the Cabinet Committee on Legislation and then to parliament. And then there is the Law Reform and Development Commission (LRDC). This can be initiated by members of the public who raise issues. A [court] judge, as in the case of electoral law reform, can indicate that a certain matter should be done. The LRDC can also decide on its own that certain laws need to be amended or developed. When this is the case we would ask the public on how they want us to do this and that’s how the process of reform gets off the ground. In the case when the Commission comprises of only myself and the Ombudsman, statutorily we would consult and go ahead.

So how did the Third Constitution Amendment Bill come about?

What happened was that the High Court on the 14th of February 2010 commented that the laws around elections needed to be consolidated. I brought such views to the Commission and they were accepted. We decided to have consultations but before that we consulted donors. NID [Namibia Institute for Democracy], when they heard we were embarking on this process, came to see me and we agreed to work together. They were working with Professor [Gerhard] Tötemeyer and they asked me if I could engage him. I was happy because I worked with him when I was at the Office of the Prime Minister and the Attorney General’s office. He worked at the ministry of regional and local government and he also worked as director of elections, so he is knowledgeable when it comes to electoral matters. Then we started first to identify what the issues were, etcetera. It was during this that it became obvious that there were certain constitutional issues that we needed to look at. These issues were contained in our report of June 2012. They included the issue of electing the president where it was stated that there should be amendments to the constitution. It also spoke about the composition of the National Assembly. I consulted with political parties and I told them that I am of the view that we would have constitutional amendments. If you have a tie where three parties have an equal number of votes, equal number of seats, equal number of surplus votes and one seat remaining. How do you break the tie? That’s when an amendment to Schedule 4 became necessary. That’s how this evolution came about.

There’s a feeling that the public was not consulted about these changes and that people were caught off guard when these plans surfaced in the media recently …

We spoke to political parties. Who else was to be consulted? 

Ours is a representative democracy and representative governance. In the Roman states, city states, everybody was sovereign and everybody could participate in the making of decisions. This isn’t the case anymore. These days people make decisions through people that they have elected. That’s why on a regular basis, citizens are granted the opportunity to vote in who they want and vote out who they don’t want. In our constitution, Article 49 talks about party representation in principle with proportional representation. We consulted the representatives of the people. 

On Wednesday, Prime Minister Hage Geingob held an information sharing session in Katutura about these amendments. Why is this being done after amendments have already been tabled in parliament?

You’ll be kidding yourself to think that meeting was in response to the current hullabaloo. The National Youth Council felt that the youth are the country’s majority and that many are unhappy. They then invited the Prime Minister, the Attorney General, the Presidential Affairs Minister and others who are members of the National Assembly to address them so that they also have a perspective. Don’t mistake this consultation with one that is sought by the ultra-leftist NGO community. If that’s what you are expecting, you’ll be so disappointed. 

The NGOs held a demonstration this week to express themselves against these amendments …

Those were voices of dissent. That’s what they are and have always been. They are old politicians who then turned to the NGO community and want to be part of the governance system outside the system that is embedded in the constitution. Let them form political parties if that’s the route they want to take.

Speaking in parliament this week, RDP’s Heiko Lucks dubbed this a Shanghala-Geingob Bill. What did you make of this claim?

It is really regrettable that an honourable member would make such inferences. I don’t even sit in the National Assembly. All I do is professional work which I then hand over to the political establishment. That he could stoop to politics of such pedestrian nature is regrettable. But then the entire parliamentary discussion about this Bill was not worth our mention. So please, next question …

What is the logic behind having a vice-president and prime minister, and possible deputy prime minister, simultaneously in the same government?

The legal argument that we started from the word go is to say that you need a vice-president at that level to be able to continue the governance of the country because if you don’t have a president – if, during succession, an elected president is unable to assume office for some reason, the vice-president from the previous administration can preside over the country for 30 days to maintain stability. This will be done within the construct of Article 29 (4) which already is in the constitution. That’s the principle justification. The prime minister would go to parliament because he is the head of government business in parliament. The vice-president will not be going to parliament. 

What are the current legislative shortcomings regarding issues of presidential succession?

You can have a scenario where the president is elected in office but for some reason he is unable to execute his functions. On this, the constitution currently states that if elections are within a year and the president’s term of office is ending, the prime minister should take over until elections are held. If elections are originally to be held in over a year’s time, then you’d be required to call elections. What we are trying to address now is a scenario where the president has reached his authorised maximum stay in office and cannot be allowed to stay one day more in office [after completing two terms] and something unexpected, maybe heart attack, happens to the president-elect who was to take over the next morning. What do you do if, for argument’s sake, a petition is brought to court on the eve of the president’s inauguration that he is not Namibian? What if the president-elect commits suicide on the eve of his inauguration? Having a vice-president will be the answer to such scenarios.

Having a president, vice-president, prime minister and possibly deputy minister, will this not create a top-heavy administration?

Yeah, let’s leave that to political scientists to explain what is top-heavy. From a legal point of view it’s neither here nor there. 

Another concern raised was that these are massive constitutional changes but there’s hardly anything for the common man in this. The issue of access to land, for example, is among what many expected to see amendments on.

Laws about land are not in the constitution. There’s a lot of talk about land from people who barely understand the subject of land. What we need is a uniform land tenure system where both communal and commercial areas are treated the same. But then we need to have regional and local authority councillors of worth and quality oversee this process. We need innovative ideas to make land accessible. We need to empower local authorities, have the power to make by-laws which allow people to be given ceilings of how much they can pay for land. 

You just spoke about empowering regional councillors, but the proposed amendments are seen as a slap in the face of empowering the regions …

How are we disempowering the regions? Nothing in the constitutional amendments is diminishing the powers of regional councils and local authorities …

Some people are not happy that they no longer have a say in choosing their governors. They feel governors are imposed on them by the president.

Governors are going to be constitutional office-bearers. They shall be the political heads of the regions. When issues happen, the masses wouldn’t have to run to the minister in Windhoek. Namibia is a unitary state – not a federal state. You don’t want to have a breakaway region. I don’t want to mention places where such views arose. Right now, you can be in Katjinakatji where [SPYL leader Elijah] Ngurare comes from, you can be in Okamatapati or Vaalgras, but you vote for one president because Namibia is one constituency. That president will then appoint a representative in each region to be the link between the executive and the region. Previously, the governor was an elected councillor of a constituency and also a chairperson of the regional management committee. This makes them prone to neglecting some of their duties.

It is claimed that the LRDC is currently without commissioners. Did you preside over these amendments alone? 

I am a commissioner. The Ombudsman [John Walters] is an ex officio commissioner. It is true that we don’t have a full complement. Ideally, we must have a representative from the ministry of justice, Unam, the Law Society of Namibia, etcetera. But I consulted with the Ombudsman and I am comfortable that we are not reckless to do sloppy work. 

You proposed the increase of parliamentary seats from 78 to 100 and, days later, you were elected as one of Khomas Region’s candidates for the Swapo electoral college. Was this to increase your own chance of going to parliament?

I must be so powerful to increase seats for my own sake. These proposals were made long ago before I got nominated for the electoral college. I am not in parliament where the final decision on this proposal is taking place. So please ignore such talk. It is reminiscent of cuca-shop past-time talks.