A constitutional analysis of law-making, constitutionalism and the doctrine of legality in Namibia

The inauguration of Namibia's Eighth Parliament on 20 March 2025 at State House in Windhoek was greeted with optimism and high public expectations.

Many Namibians celebrated the entry of younger parliamentarians from different political parties, believing that a new generation of leaders would bring renewed energy, innovation and a better understanding of the socio-economic challenges confronting ordinary citizens.

However, more than sixteen months after their swearing-in, the Eighth Parliament has yet to pass a single substantive Act of Parliament. Parliamentary proceedings have largely been characterised by points of order, political exchanges and questions directed at ministers, with very limited legislative output.

The issue is not merely political; it is fundamentally constitutional.

The failure to produce legislation over an extended period raises serious concerns regarding constitutionalism, democratic accountability, the rule of law and the doctrine of legality.

The political dynamics

For much of Namibia's post-independence history, the ruling Swapo Party enjoyed a comfortable parliamentary majority, allowing it to pass legislation with relative ease. The dominance of a single political party ensured legislative certainty and policy continuity, although critics often argued that parliamentary oversight was weakened by party discipline and numerical superiority. The political landscape changed significantly following the 2024 Presidential and National Assembly elections. Although Swapo retained government, it emerged with a reduced parliamentary majority of fifty-two seats.

This numerical reality transformed parliamentary politics. Opposition parties, particularly the IPC and the AR movement, now command substantial influence over legislative outcomes.

Consequently, governance through political consensus and negotiation has become unavoidable. Political theorists have long argued that liberation movements eventually lose their political dominance as democracies mature and electoral competition intensifies. Whether Namibia is witnessing such a transition remains a matter for political debate.

Constitutionalism

Constitutionalism refers to the principle that government power must be exercised according to constitutional rules, limitations and values rather than political convenience or partisan interests.

The Namibian Constitution establishes Parliament under Chapters 7 and 8 and vests legislative authority primarily in the National Assembly.

Article 63(1) provides that:

"The National Assembly, as the principal legislative authority in and over Namibia, shall have the power, subject to this Constitution, to make and repeal laws for the peace, order and good government of the country in the best interests of the people of Namibia."

The wording of Article 63 is significant. The Constitution does not merely grant Parliament the power to legislate; it creates a constitutional expectation that this power will be exercised in pursuit of the public good.

The phrase "peace, order and good government" has historically been interpreted throughout Commonwealth constitutional jurisprudence as imposing a broad responsibility on legislatures to ensure effective governance and responsive law-making.

Professor Lourens du Plessis argues that constitutional interpretation in modern constitutional democracies should advance constitutional values and suppress practices inconsistent with constitutional objectives.

Constitutional Interpretation

Namibian constitutional jurisprudence generally favours a purposive approach to constitutional interpretation rather than a narrow or technical reading of constitutional provisions.

Under the purposive method, constitutional provisions must be interpreted in a manner that promotes democratic governance, accountability and constitutional values.

Applying this principle to Article 63 leads to an unavoidable conclusion: Parliament exists to legislate. The Constitution must be interpreted holistically and not in isolated provisions. Articles 60 and 63 complement one another by establishing both the powers and duties of Members of Parliament.

The purpose of parliamentary office is therefore not merely representation but active participation in governance through legislative activity.

The maxim ut res magis valeat quam pereat, meaning that legal provisions should be interpreted to give them practical effect rather than render them meaningless, becomes particularly relevant. If Parliament exercises its oversight role but fails to perform its legislative role, then Article 63 loses much of its practical significance.

The Rule of Law

The rule of law is one of the foundational principles of the Namibian constitutional order. It requires that public power be exercised in accordance with the law, that institutions fulfil their constitutional mandates, and that governance occur within a framework of accountability and legality. The rule of law equally requires government institutions themselves to obey constitutional obligations.

The classical legal maxim fiat justitia ruat caelum (let justice be done though the heavens fall) emphasises the supremacy of legal principle over political expediency. Parliament cannot suspend constitutional responsibilities because political conditions have become more difficult or because consensus is harder to achieve.

Similarly, the maxim salus populi suprema lex esto (the welfare of the people shall be the supreme law) reminds public officials that public interest must always prevail over partisan calculations. If legislation aimed at improving service delivery, economic growth, employment creation and institutional reform remains delayed indefinitely, it is ordinary Namibians who ultimately bear the consequences.

The Doctrine of Legality

The doctrine of legality requires that every exercise of public power must originate from lawful authority and must be exercised for the purpose for which that authority was granted by the Constitution or an Act of Parliament. Public institutions cannot choose which constitutional obligations they wish to fulfil and which they may ignore.

The Constitutional Court of South Africa in Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (CC) held that all exercises of public power must comply with the Constitution, because the Constitution is the supreme law from which all public authority derives its legitimacy. Although this decision originates from South Africa, its reasoning has persuasive value within Namibia's constitutional jurisprudence due to the shared constitutional tradition founded upon the supremacy of the Constitution and the rule of law.

The principle of legality is captured in the legal maxim "ubi jus ibi remedium" (where there is a right, there must be a remedy).

The people of Namibia possess a constitutional right to representative government and effective legislative administration.

Another important maxim is "cessante ratione legis cessat ipsa lex" (meaning that when the reason for a law ceases, the law itself ceases).

Applied within the present context, if Parliament ceases to perform the very function for which it was constitutionally established, namely law-making, the institution risks losing its constitutional purpose and democratic legitimacy in the eyes of the public.

Legislative inactivity over an extended period may invite legitimate public scrutiny regarding whether Parliament is exercising its constitutional responsibilities in a manner consistent with the objectives envisaged by Articles 60 and 63 of the Constitution.

Article 60(1)(b) of the Namibian Constitution provides that Members of Parliament must regard themselves as "servants of the people of Namibia" and must avoid conduct that alienates them from the citizens they represent. Members of Parliament are elected not for personal prestige, political entertainment or partisan confrontation, but to advance the interests of the Namibian people.

Stephanus Pombili is a concerned Namibian citizen. Opinions shared here are his own. Email him @t: [email protected]