‘Executive Immunities Bill is unconstitutional’

JEMIMA BEUKES

The government’s plan to grant executive privilege to cabinet ministers has the potential to create an apartheid-style society of upper-class and lower-class citizens, argues human rights lawyer Norman Tjombe.

According to Tjombe, if passed in its current form, the Executive Immunities Bill approved by Cabinet last week is likely to be unconstitutional, as the Namibian Constitution intended for only the president to have criminal and civil immunity while in office.

“Also, Article 10 of the Namibian Constitution demands that each person be treated as equal before the law, and the Executive Bill blatantly violates this sacrosanct principle of our constitutional democracy,” said Tjombe.

Legal expert Hoze Riruako, however, supports the bill. He says too often ministers who do their jobs are dragged to court for violations they have nothing to do with.

Although he does not support immunity for ministers who commit offences, Riruako argues that a “fiasco” has been created by disgruntled people who sue ministers or permanent secretaries simply because they can.

Article 31 of the Namibian Constitution stipulates that that no person holding the office of state president, or performing the functions of the president, may be sued in any civil proceedings for actions taken during their term of office.

It further states that after a president has left office, no court may hear a criminal case in respect of any act done during their tenure as president.

Courts only have jurisdiction to hear civil or criminal cases against the president in respect of acts alleged to have been perpetrated in his or her personal capacity whilst holding office; or if parliament has removed the president on grounds specified in the constitution; or if parliament resolves that any such proceedings are justified in the public interest.

The bill has not yet been made public. According to a statement issued by the attorney-general’s office, it seeks to provide certainty for ministers that they, too, will not be held personally civilly liable for the performance of their duty.

It also emphasises that ministers should not have their attention diverted by concerns about private lawsuits because of violations committed by public servants.

The statement says making the bill public at this stage of the drafting process would be premature, as it would pass through several more levels of scrutiny by the Cabinet Committee on Legislation, legislative drafters, and the attorney-general’s office.

“The inclusion of a right of action for the State to recover from a minister who has engaged in conduct other than in good faith, and/ or with gross negligence, ensures an appropriate balance is maintained in supporting ministers while ensuring that they remain accountable for their actions,” the statement reads.

DTA president McHenry Venaani believes that accountability will be thrown out the window if this bill is passed.

He says there is a reason why only the president enjoys immunity under the constitution.

“I am not aware of this bill, but if it gets to parliament we are going to object to it. We must be very careful about how we do things. We must avoid a situation where we cannot question it when a minister fires the head of a parastatal without due diligence,” he says.