In Defence of Parliamentary Legitimacy and Autonomy By Fluksman Samuehl In a constitutional democracy, parliament stands aloof and forms a central part of political governance. The main functions of parliaments are to: Examine proposals for new laws and scrutinise government policy and administration, including proposals for expenditure. The parliamentary government in Namibia is based on a two-chamber parliament – the National Assembly and the National Council. The legislative process involves both houses of parliament. These houses sit separately and are constituted on entirely different principles. But they are meant to operate complimentarily. Parliament is an institution shaped in some measure by the personalities (members of parliament) and style of individual legislators. In effective terms, this may mean that parliament is a corridor of political power. This is true for a democratic state such as Namibia. The constitutional duty of a legislative body is complex and diverse. And in Namibia multi-partyism has been a defining feature of the Namibian Parliamentary Democracy since the founding of our new state in 1990. Namibia’s legislature has achieved a number of milestones in the evolution of parliamentary democracy. I pay tribute to all founding members of our two-house parliament for having laid the foundation on which to build. Parliament has proven to be an asset to democracy, and its ability to respond in a manner which is conducive to democratic solution-seeking methods. When some sectors of our population are troubled, they draw the attention of our elected representatives. The case involving shebeeners and other interest groups is still fresh in our mind. In an organised and peaceful manner, shebeeners not only voiced their legitimate issue but went to the extent of occupying parliament grounds demanding proper attention and answers from our elected representatives As we await the traditional opening of the joint session of parliament for the year 2007, the challenge of democratic thinking is both numerous and substantial not only for Namibia but for global politics. In Namibia major parliamentary initiatives such as “Agenda for Change” and Constituency Outreach Programme, were initiated under the departed first speaker of the National Assembly and is now being pursued by the incumbent speaker. In his, “taking the parliament to the people” initiative, Speaker Theo-Ben Gurirab told a debriefing session in the South last year: “We want to keep democracy vibrant and healthy by promoting public interactions on policy formulation and the law-making process. We want to speed up public debate.” This underscores the value we attach to practical and popular participatory democracy. For the purpose of this academic analysis, I intend to assess only some issues of legislative significance which have come into the public domain of which some have reference to constitutional ambiguity. I must admit that the task of assessing the performance of the legislature is a daunting one, given the divergent viewpoints regarding the expectations of various interest groups. But the reality is that parliamentary assessment needs to be situated within the overall framework of the functions of the legislature in relation to lawmaking, supervision of the executive through oversights functions, and a host of other functions including the promotion of the enabling environment for economic liberation. Therefore this paper seeks to assess the performance of our two-house parliament with emphasis on the need to reform the parliamentary system. As we mark 17 years of parliamentary democracy, it is still unclear to what extent the general public is able to excise influence on the conduct of affairs of parliament. Representative governments such as the one we have become accustomed to, have revealed that it has many areas of improvements. Similarly, it is still debatable as to what extent parliament has shown its autonomy in supervising the executive branch of government. The overall performance of our parliament has been bogged down by a numbers of factors, such as financial constraints and the absence of agreeable formula to de-link the parliamentary staffing from the Public Service Commission. This is essential for parliament to plan, decide and implement its unique staffing needs. For instance, all backbench MPs should be resourced properly, including the appointment of qualified legislative assistants who have to assist the lawmakers in their day-to-day national assignments. Lawmakers who sit on strategic committees should be allowed to hire people with high-level skills in the relevant field and undertake research works that are essential components of the law-making. Alongside this is the urgent need for a well-articulated manpower development programme aimed at providing competent staff for all our legislative houses. Separation of Powers Doctrine The state of Namibia is anchored on the principles of separation of powers. The argument about excessive executive presence in parliament leaves us to wonder whether the legislature and executive working relationship could compromise the entire pursuit of good governance, delivery of quality bills and effective service delivery which has become the centrepiece for the Pohamba Presidency. On balance the ruling Swapo Party could be commended for using its two-thirds majority wisely, for instance by maintaining a favourable political climate, peace and stability in the country. Since acquiring a two-thirds majority in parliament beginning March 21, 1995, the ruling party has allowed the opposition parties to be heard through parliamentary motions and partly via committee reports, etc. But this was not always the case given the sensitivity of some debatable issues; at times the governing party has also applied the rule of ‘what it needs to hear’. This might have cost the opposition dearly. But let’s face it, 17 years down the line our democracy has grown and keeps on maturing. The notion that it would be easier getting motions through government channels than through the opposition is a pure parliamentary myth. Recent opposition motions tabled in the National Assembly on German genocide in colonial South West Africa which received wide support from both sides of the aisle is a case in point. It is my considered view that government itself is about compromise and consensus. For the separation of powers concept to work effectively, this could not only come from government by reducing the size of its cabinet as suggested repeatedly by the opposition parties over the years. Power may also shift if representation of opposition parties increased significantly. Even if this happens with opposition in parliament becoming numerically strong and vigorous, it is unlikely that opposition actions will unnecessarily contest government policies and/or derail executive intentions. The power structure may change but the primary tasks of parliament remain unchanged. The possibility would be a shift in thinking, change in debate patterns, strong bipartisan spirit and possible emergence of parties’ censuses building tradition. Both the legislature and executive can co-exist harmoniously, debunking claims that this would create two centres of power and therefore undermine the effective operation of government machinery. It is vital that parliament and executive branches of government maintain comfortable and respectful working relations. The Problem with the Parliamentary Constituency The claim to legitimacy is a tricky one. It is very difficult to define the scope of political accountability if we are not clear on what constitutes a political constituency and how legitimacy is conferred to leaders. This is applicable to elected and ‘selected’ parliamentarians. It is often said that all the National Assembly MPs represent the entire country as a single constituency. Without devaluing the significance of the PR electoral system, which helps to keep minority parties in parliament, this theory of each MP representing the entire country raises critical issues of practical accountability. This theory represents a great challenge for an individual MP to keep in touch with a population of around 2 million scattered over a geographic area of this vast country of about 825,418 square kilometres. In an attempt to fill this ‘constituency vacuum’, some political parties represented in parliament have assigned their representatives (MPs) to various political regions to deal specifically with issues of a political and developmental nature emanating from the regions. To my knowledge there are no existing mechanisms to assess full compliance. Therefore it has proven to be very difficult to enforce effective monitoring, evaluation and implementation of this strategy. It is highly doubtful how effective this approach would work merely due to its ambiguous nature. To satisfy the demands of democratic accountability, it would be useful to narrow down the constituency to a reasonable size. In a British Westminster Parliament (mother of all parliaments), MPs are increasingly concerned with constituency business. And MPs whether in government or opposition constantly question ministers including their prime minister on constituency issues which affect the people. I am in no way suggesting that the Westminster parliamentary system is perfect. It has also its serious flaws and weaknesses but these shortcomings are debated openly with the aim of seeking redress. Quality of Parliamentary Debates Any attempt to analyse the level of debate should be assessed objectively based on philosophical, ideological, political grounds and the cultural values of Namibians. Notwithstanding these realities, all our MPs have a responsibility to generate meaningful political initiatives. Parliamentary debates vary from grey, dull, quiet, and sometimes homely to constructive, interesting, enlightening and national. Furthermore, the performance of our parliament is to a great extent determined by the party system or proportional representation in place. Most of the elected and ‘selected’ lawmakers are persons who played visible roles in the past. Political parties would then draw their members from a variety of backgrounds: including academics, business, parliamentary, military, diplomatic, labour, religion, and traditional leadership, etc. It is expected that lawmakers will canvass support in favour of their parties and seek to bring their party philosophy and viewpoints to bear on the policy-making process. This is more for the party in power. Against this background, the organisation of political parties, the degree of internal coherence and control they can exert on their members in the bicameral parliamentary environment become critical in determining the quality of debates, behaviour and individual performance of our lawmakers. Apart from the Appropriation Bill debates, there have been very few cases of significant backbench intervention. Again, it appears our parliamentary system seriously constrains backbench MPs to constructively engage in a variety of national debates. This is perhaps the party list electoral system which produces National Assembly MPs as opposed to being directly elected by the electorates. It could be said that there are some limitations on the part of the institution to provide support in using private members’ bills or sponsored by individuals and groups. Namibians have yet to see more open, frank and rational political debate. It would appear as if a strong political culture is at play here. This would probably come with time. Also of crucial importance is that the civil society must accept the challenge of undertaking to watch the watchdog, and put in the public domain the excesses of the legislature, while building a network of support for it in the search to make the legislature a key democratic institution in the search for accountability and democratic governance. National Council The position of the twenty- six member National Council until present has been a curious constitutional anomaly. Public misconceptions exist that the legislative debates in the National Council are of low intensity and therefore lacking originality. Some critics went further to believe that the existence of this house of review is unnecessary. This kind of thinking raises many constitutional issues such as the legislative powers of the National Council, the constitutional position of its sovereignty, and the nature of Namibia’s parliamentary democracy. Rational answers to this type of questions could be found in Chapter 8, Article 68 read together with Article 74 of the Namibian constitution which provides for the existence of this legislative house and its powers. Earlier on I have defined the strong foundation based upon which our bicameral parliamentary system is built. I for one do not believe in a unicameral parliamentary system for Namibia but rather the strengthening of the existing system, and there are many ways of doing it. My analysis concludes that the present constitutional structure clearly limits the National Council’s ability to play major review legislative functions and effectively promote regional developmental dimensions in the law-making process. Given the way National Council MPs generate their legitimacy and the high expectations placed on their shoulders by the electorate, it would be desirable to strengthen the National Council’s review functions. For example under chapter 6, article 36, the Prime Minister (PM) is constitutionally empowered to be the Leader of Government Business in Parliament. But this theory raises issues of constitutional accountability. The PM as a parliamentarian sits in the National Assembly and practically is not answerable to the National Council. This interesting question arises as to what point does the PM lead government business in the National Council which is constitutionally part of Parliament? This is clearly a constitutional ambiguity which requires a clearly defined meaning. The good intentions of government such as its strong stance on decentralisation should be mirrored at the parliamentary institution, in particular in the National Council to empower the house of review. Of great significance is that the National Council draws its political legitimacy primarily from the constituencies and secondly the regions they represent. At the invitation of the National Council, executive members should be made to appear before the house of review to account for regional developmental activities in the law-making process. This process would have the potential to provide a results-oriented political system and would deepen the level of legislative engagement accountability. But this should be done in a co-ordinated fashion to avoid duplication of functions. In the absence of this, NC members through its committee system are left to consult or seek clarifications behind the scene with cabinet members on issues of regional concerns. Conclusion Constant improvements in parliamentary governance are necessary to facilitate the growth of the legislative arm of government, especially its institutional and infrastructural aspects. This is important in order to raise the sights of our national politics. New thinking and creative ideas are necessary and urgent if we are to accelerate progress towards real economic development where Namibians can fully reap the democratic dividends that might have been expected to come from living in an independent state. Therefore parliamentary reform is a vital undertaking and necessary step towards strengthening Namibia’s democracy.In doing so we need to avoid any considerable political uncertainty. It is still within the power of parliament to shape the outcomes of intended reforms. We may differ on some issues, as can be expected in any functional democracy, but we both understand that we must make this country work. The new form of public participation in parliamentary matters will need to take priority. However, it would appear as if Namibia is a highly politically aware country but not historically predisposed to participation. Agenda for Change in all what it promises to do needs to see the light of day. With the growing population since independence, there is need to increase the number of elective MPs in the National Assembly from 72 to 80. This is essential for the strengthening and enhancement of a National Assembly select committee system. The current practice which allows one MP to serve on several committees is seriously compromising the effective oversight functions of parliament. Legislators should work hard towards the autonomy of parliament and liberate itself from whatever constraints in its way. But the success will ultimately depend on the profoundly ambitious bid for renewal and the extent to which all parliamentarians are able to guard against any form of marginalisation of the institution. In some countries such developments have led to parliamentary impotence. Some parliaments including the Federal Parliament of Nigeria enjoy the privilege of confirming crucial appointments of key functionaries like ministers and ambassadors. Electoral systems have an important role in democratic constitutions. Voting systems affect political processes and outcomes. The need for the introduction of constituency-based elections for all MPs is of paramount importance. I am convinced that through democratic and elective politics we would be able to address the conditions of poverty and historical disempowerment and regain our sense of self-respect. Parliament has the potential to ensure the full realisation of Africa and her long cherished dream of rebirth. For the full realisation of a modern and reformed parliament, the real questions are surely: Who would attend such a conference for parliamentary reform? What would its remit be? Would its proposals have to be further debated in parliament and be subject to parliamentary approval? It will be possible to reach a consensus between the major actors represented in parliament on how best to proceed with the implementation of further reforms. Inevitably, the timescale for this depends on the degree of agreement that can be reached. This could take a form of national dialogue and conference of constitutional scholars, political scientists, media experts, serving and formers parliamentarians. Together, we could establish the winning formula. Parliamentary reform may only succeed if it is discussed as a package. We seriously need to face up squarely to the concerns. Speedy and far-reaching institutional transformation must therefore become a major priority. Namibia needs to rise to the highest standards of democratic decorum. – Fluksman Samuehl is a former Member of Parliament and Chairman of the Commonwealth Parliamentary Association: Namibian Branch. He holds a Master’s Degree in International Relations and Strategic Studies from the University of Lancaster in the UK. He is currently studying towards his PhD. His research interests concerns United Nations Reforms, Nation-State Building, Foreign Policy and Global Diplomacy.