So what if President Geingob is complicit and guilty?
What if President Hage Geingob is really involved, as some suspect, in the Fishrot corruption? To rephrase, what if his “patriotic” ministers Sakeus Shanghala and Bernhardt Esau were acting on his explicit instructions for his benefit? Suppose there is overwhelming evidence incriminating the president in illegalities related to President Cyril Ramaphosa’s millions? Our society hardly stretches its imagination should the above scenario hold. The question is: What then? Would Inspector General Sebastian Ndeitunga rush to State House to arrest the president? Imagine if someone had the evidence, like South Africa’s intelligence boss Arthur Fraser did, and went to the police station to open a case against President Geingob; will the police open and investigate the case? In South Africa, the police indeed opened a case and are investigating President Ramaphosa. Would the same happen in Namibia?
The answer is in Article 31 of our Constitution. Firstly, in 31 (1), it prohibits anyone from suing the president in any civil proceeding while in office. It only permits one to sue the president for acts done in his official capacity. As one youth once observed, since getting married is not a government activity and given that divorce is a civil proceeding, falling under “any civil proceedings”, it would seem that a First Lady cannot divorce the president. Secondly, in 31 (2), the president is protected from being charged with any criminal offence and is not open to any criminal jurisdiction of any court for any activity while in office. Notice that 31 (2) makes use of the word “any” three times in reference to “any” criminal offence, “any” court and “any” act. The Legal Assistance Centre once asked and answered this question: “Could a Namibian president stand in the middle of the street and shoot someone without consequence? The simple answer appears to be yes”.
Untouchable
Third, in 31 (3), after the president leaves office, all Namibian courts are prevented from dealing with any action, in any civil proceedings, for any act done by the president when he/she was in office. Article 31 (3) (b) allows for criminal or civil proceedings against the president after he/she has left office only when the president has been removed by the parliament (impeached) but only after parliament passes a resolution that such proceedings are justified in the public interest. This is clearly a pipe dream.
We recently discussed this with one Induna here in Kongola. He argued that it is impossible to impeach the president in Namibia. He argued that the impeachment grounds provided in Article 29 (2) are that parliament can remove a president by two-third majority firstly if the president “has been guilty of a violation of the constitution”, and secondly “guilty of a serious violation of the laws” and thirdly “otherwise guilty of such gross misconducts”.
The wise Induna argues that firstly, the president must be found guilty. He adds that since the constitution does not provide the procedure on how this guilt can be determined, we assume that this is a judicial function. Since the president is protected from both criminal and civil proceedings as explained earlier, it is clear that finding the president guilty to enable impeachment as contemplated in article 29 (2) may not be possible.
Think on it
It is thus clear that the president is above the law. The statement in Article 10, in sharp contrast with Article 31, that “all persons shall be equal before the law” is a dwarf with a loud voice. At the same time, Article 29 (2) is made irrelevant by Article 31. Believing otherwise is like a hormonally gullible teenager told by her lustful boyfriend that he bought her a birthday gift which cannot be found. She may respond “it is the thought that counts”. In reality, the lustful boyfriend never bought the gift. In short, the colourful provisions in Article 10 and Article 29 are falsehoods when it comes to the president. Above the law, the president can hardly be removed from office. We are in a presidential cul-de-sac.
There are several options available worth meditating on. Firstly, as provided for by Article 79 (2), the Attorney-General can directly approach the Supreme Court to interpret and determine if Article 31 does not place the president above the law in conflict with Article 10. He can do the same for the Supreme Court to interpret and determine how the president can be found guilty given the prohibitive provisions of Article 31. Whether he can do it is another matter. The second option is for parliament to embark on a national constitutional amendment consultative process different from past amendments. There are more constitutional challenges and contradictions.
*Muthoni waKongola is a native of Kongola in the Zambezi region primarily concerned with analysing society and offering ideas for a better Namibia. She is reachable at [email protected] or @wakongola on Twitter
The answer is in Article 31 of our Constitution. Firstly, in 31 (1), it prohibits anyone from suing the president in any civil proceeding while in office. It only permits one to sue the president for acts done in his official capacity. As one youth once observed, since getting married is not a government activity and given that divorce is a civil proceeding, falling under “any civil proceedings”, it would seem that a First Lady cannot divorce the president. Secondly, in 31 (2), the president is protected from being charged with any criminal offence and is not open to any criminal jurisdiction of any court for any activity while in office. Notice that 31 (2) makes use of the word “any” three times in reference to “any” criminal offence, “any” court and “any” act. The Legal Assistance Centre once asked and answered this question: “Could a Namibian president stand in the middle of the street and shoot someone without consequence? The simple answer appears to be yes”.
Untouchable
Third, in 31 (3), after the president leaves office, all Namibian courts are prevented from dealing with any action, in any civil proceedings, for any act done by the president when he/she was in office. Article 31 (3) (b) allows for criminal or civil proceedings against the president after he/she has left office only when the president has been removed by the parliament (impeached) but only after parliament passes a resolution that such proceedings are justified in the public interest. This is clearly a pipe dream.
We recently discussed this with one Induna here in Kongola. He argued that it is impossible to impeach the president in Namibia. He argued that the impeachment grounds provided in Article 29 (2) are that parliament can remove a president by two-third majority firstly if the president “has been guilty of a violation of the constitution”, and secondly “guilty of a serious violation of the laws” and thirdly “otherwise guilty of such gross misconducts”.
The wise Induna argues that firstly, the president must be found guilty. He adds that since the constitution does not provide the procedure on how this guilt can be determined, we assume that this is a judicial function. Since the president is protected from both criminal and civil proceedings as explained earlier, it is clear that finding the president guilty to enable impeachment as contemplated in article 29 (2) may not be possible.
Think on it
It is thus clear that the president is above the law. The statement in Article 10, in sharp contrast with Article 31, that “all persons shall be equal before the law” is a dwarf with a loud voice. At the same time, Article 29 (2) is made irrelevant by Article 31. Believing otherwise is like a hormonally gullible teenager told by her lustful boyfriend that he bought her a birthday gift which cannot be found. She may respond “it is the thought that counts”. In reality, the lustful boyfriend never bought the gift. In short, the colourful provisions in Article 10 and Article 29 are falsehoods when it comes to the president. Above the law, the president can hardly be removed from office. We are in a presidential cul-de-sac.
There are several options available worth meditating on. Firstly, as provided for by Article 79 (2), the Attorney-General can directly approach the Supreme Court to interpret and determine if Article 31 does not place the president above the law in conflict with Article 10. He can do the same for the Supreme Court to interpret and determine how the president can be found guilty given the prohibitive provisions of Article 31. Whether he can do it is another matter. The second option is for parliament to embark on a national constitutional amendment consultative process different from past amendments. There are more constitutional challenges and contradictions.
*Muthoni waKongola is a native of Kongola in the Zambezi region primarily concerned with analysing society and offering ideas for a better Namibia. She is reachable at [email protected] or @wakongola on Twitter
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