NC rejects unconstitutional bill

The National Council yesterday unanimously agreed that the Namibian Citizenship Amendment Bill is unconstitutional.
They voted to reject the principle of the bill, a move that has received widespread praise from lawmakers and civil society.
University of Namibia law professor Nico Horn praised the National Council for having “stood their ground” despite rumoured pressure to let the bill pass.
He said the National Council, which in the past had often been seen as a rubber stamp of the National Assembly, “executed its constitutional mandate in an exceptional manner”.
According to Horn, the rejection of the bill is “a victory for the role of the National Council in our legislative process and a big win for participatory democracy. Sanity has prevailed.”
The National Council select committee findings and vote were what democracy is all about, Ombudsman John Walters said.
He said the committee’s decision to invite civil society members to share their views on the bill was “an expression of democracy and also proof that the constitution is a living document”.
The National Council select committee yesterday submitted its findings, based on public consultations last week. It found that the amendment bill was aimed at depriving Namibian citizens by birth of their citizenship.
Committee member Cletius Sipapela told the council that the Supreme Court interpretation of the constitution was “very, very clear” and could not be contradicted by an act of parliament.
Sipapela warned that disagreeing with Supreme Court judgements, specifically if they interpret the constitution, should not “cause us to amend our laws”.
Advocate Esi Schimming-Chase said the National Council vote enquiry was “an example of a functioning democracy. I am very proud to have been part of this process”.
Last week, in a statement on behalf of the Society of Advocates of Namibia, Schimming-Chase warned that the bill constituted the “most serious challenge since independence to the supremacy of the Namibian constitution, the rule of law and the separation of powers within our constitutional democracy”.


Ombudsman Walters said he hoped the process of engaging with the public on such issues will continue.
“We can only commend the National Council for giving us the opportunity to comment. Parliament represents us, and we can’t talk in parliament. This process gives expression to the constitution.”
The amendment bill was a response to a June 2016 Supreme Court judgment in favour of the De Wilde family, Dutch citizens whose son was born in Namibia in 2008 and whose citizenship was rejected by the Ministry of Home Affairs and Immigration.
The Supreme Court ruled that in line with the constitution, the boy must be issued with a birth certificate.
Instead, the ministry drafted the bill in an attempt to override the Supreme Court decision.
Sipapela said the select committee found that parliament can enact laws but should not be the interpreters of those laws. He said that was up to the courts to do.
The National Council vote followed a cabinet statement late on Tuesday, which said the government would comply with the Supreme Court judgment and that the Ministry of Home Affairs and Immigration “will issue a birth certificate as directed”.
Sipapela emphasised that the National Council findings and unanimous vote “was in no way influenced by the cabinet announcement”.
He said the National Council independently stood by its view that the amendment was unconstitutional.
Toni Hancox, director of the Legal Assistance Centre (LAC), one of the first organisations to publicly denounce the bill as unconstitutional last week, praised the decision of the National Council.
“We are obviously gratified that the process that is in place to protect the constitution worked, and it worked swiftly,” she said yesterday.
Cabinet announced on Tuesday that the government “fully respects the Namibian constitution as the supreme law of the country, and acting within the confines of the Namibian constitution, remains seized with the matter, will monitor the situation and if need be, will consult widely with a view to seeking a long-term solution to deal with issues of this nature in future.”
Professor Horn reiterated arguments made by legal professionals at the National Council select committee hearing last week, that “if the National Assembly still wants to change the words ‘ordinary residents’ to ‘permanent residents’ they need to amend the constitution, as suggested by the Attorney General from the outset.”
JANA-MARI SMITH