Kill Bill: The president's power to withhold assent to (unconstitutional) legislation
On 7 July, member of parliament (MP) Jerry Ekandjo tabled the ‘Marriage Amendment Private Members Bill’ that redefines spouse as 'one half of a legal union between a man and a woman of the opposite sex’ and marriage as ‘a legal union entered into between persons of the opposite sex’.
The legislation is in response to the Digashu judgment handed down on 16 May 2023, in which the Supreme Court ordered the government to recognise same-sex unions validly concluded outside of Namibia. The court held that the government's exclusion of same-sex couples in the interpretation of ‘spouse’ violates their right to equality and dignity as guaranteed in the Namibian Constitution.
The Bill, however, goes further than reversing the ambit of the Supreme Court verdict in that it prohibits any marriage officer or a person by any designation to ‘solemnise, witness, promote or propagate a marriage between persons of same sex.’
Persons in contravention of this provision are liable to a fine of not more than N$100 000 and/or imprisonment of six years. This excessive provision implicates third parties, debilitates civil societies, and, in this way, brings their right to freedom of assembly, association, and expression into contestation.
With the backing of the ruling party, the Bill was swiftly passed on 12 July with no open opposition to it and is now on the desk of the National Council for consideration.
‘Certainly be struck down’
Constitutional expert Dianne Hubbard has commented that if passed by both Houses, the Bill "will almost certainly end up back in the Supreme Court when it is challenged on constitutional grounds – and... will almost certainly be struck down."
But it is important to consider at this stage whether the courts are the only avenue to block the legislation from coming into effect or whether the constitutional framework in Namibia provides for alternatives.
The separation of power between the three branches of government – the executive, legislature and judiciary – is a fundamental feature of the constitutional dispensation in Namibia. It ensures that one state organ does not exercise exorbitant power and that the entrenched constitutional rights of citizens are not arbitrarily and unreasonably violated. In accordance with the Namibian Constitution, the executive power lies with the president and the Cabinet, the legislative authority with parliament, and the judiciary authority with the courts.
Though the oversight role of the courts is prominent, it is often the last resort to check executive and legislative power. The constitution has other checks and balances in place that regulate the powers of the legislator by the executive and vice versa. In this context, I briefly consider the constitutional powers vested in the president to check and mitigate parliamentary power.
A legislative road
Passing legislation in Namibia requires the approval of three actors – the National Assembly (NA), the National Council (NC) and the president. After a Bill is passed in the NA by simple majority (50+1), it is referred to the NC for consideration, which then either confirms the bill or recommends that it be passed subject to amendments. Thereafter, the NA may then pass the bill again, either in its original form or an amended form. In this way, the NC serves an advisory function over the NA.
The Bill is then referred to the president for assent which may then give rise to three different scenarios. First, where the bill was passed by two-thirds of parliament, the president must assent to the Bill. Second, if the Bill is passed by a simple majority, but such a majority is less than two-thirds of parliament, the president may either assent to the bill or withhold his assent. Where he or she decides to withhold assent, it is referred back to the NA, which can either pass it again in its original or recommended form or decline to pass it completely (Article 56).
At this stage, if the Bill is passed again by NA without a two-thirds majority, and "the president elects not to assent to the Bill, it shall then lapse." In the final scenario, if in the president’s opinion a Bill would, upon its adoption, be in conflict with the Constitution, he or she may inform the attorney-general (AG) who may then take appropriate steps to have the matter decided by a competent court (Article 64).
On 11 July, the AG concluded that the Bill is "in compliance with the law and the constitution".
Checks and balances
It is important to note that the AG is "the principal legal advisor to the president and government" and has no power over the interpretation of the constitution. While the president may surely consider his opinion, he is not obliged to abide by it and is instead entitled to evoke his powers in accordance with Article 64 and instruct the AG to approach the court to consider the constitutionality of the Bill.
Returning to the scope of Article 64, if the court finds that the Bill is in conflict with the constitution, such Bill lapses, and if it holds the contrary, the president retains his power in Article 56 to refuse his assent if the bill was passed by a majority that constitutes less than two-thirds of parliament.
With less than two-thirds of parliament present upon the voting of the Marriage Amendment Bill, it was passed only by a simple majority. Moreover, drawing from the Digashu judgment, the Bill is also certainly unconstitutional. These two facts make it so that the president can exercise his check and balance powers as vested in him by the constitution. He can withhold his assent either by virtue of Article 56 or 64 of the Namibian Constitution.
Several reports suggest that the president – who has sought to build an 'all-inclusive Namibian House’ – is not necessarily concerned with discriminating against sexual minorities but that he "has been under pressure from a faction in Swapo to condemn the Digashu judgment.
Bowing to political pressure
Though it is unclear at this point whether the president has succumbed to the pressure of ‘party politics’, the moment in which he decides to either assent to the Bill or exercise his powers with respect to Article 56 or 64 will certainly shed light on the issue.
The political regime in Namibia makes it so that a president wears two hats – his party hat and his presidential hat. The first operates in the realm of politics, and it is expected that he act in accordance with the vision and principles of his party. When elected as the president of the nation, he is then required to take an oath that he will ‘uphold, protect and defend as the Supreme Law the Constitution of the Republic of Namibia.’ There is no doubt that when the interests of the two hats come into conflict, the president is obliged to prioritise constitutional principles over partisan politics.
The painful experiences of Namibians under the oppressive apartheid regime highlight the dangers of an unchecked parliament. In a bid to prevent history from repeating itself, the people contemplated, in their constitution, checks and balances on state power that would anticipate and prevent a single branch of government from exercising excessive authority. A good portion of those protections are vested in the president. These safeguards are, however, meaningless if they are not actively implemented or are abandoned due to political expediency.
As private Bills are neither initiated by the government nor subject to any internal constitutionality checks by a select committee, they are susceptible to the personal agendas of MPs. Furthermore, there was no input from civil society or other stakeholders, despite its supporters' claims that it represents the views of the majority of Namibians. In these cases, the mechanisms of checks and balances are perhaps more significant in ensuring that such bills pass the constitutionality test.
We can now only hope that the president will make use of his constitutional powers to protect the ‘life’ of the Namibian Constitution – as articulated in his oath to the Namibian people.
The legislation is in response to the Digashu judgment handed down on 16 May 2023, in which the Supreme Court ordered the government to recognise same-sex unions validly concluded outside of Namibia. The court held that the government's exclusion of same-sex couples in the interpretation of ‘spouse’ violates their right to equality and dignity as guaranteed in the Namibian Constitution.
The Bill, however, goes further than reversing the ambit of the Supreme Court verdict in that it prohibits any marriage officer or a person by any designation to ‘solemnise, witness, promote or propagate a marriage between persons of same sex.’
Persons in contravention of this provision are liable to a fine of not more than N$100 000 and/or imprisonment of six years. This excessive provision implicates third parties, debilitates civil societies, and, in this way, brings their right to freedom of assembly, association, and expression into contestation.
With the backing of the ruling party, the Bill was swiftly passed on 12 July with no open opposition to it and is now on the desk of the National Council for consideration.
‘Certainly be struck down’
Constitutional expert Dianne Hubbard has commented that if passed by both Houses, the Bill "will almost certainly end up back in the Supreme Court when it is challenged on constitutional grounds – and... will almost certainly be struck down."
But it is important to consider at this stage whether the courts are the only avenue to block the legislation from coming into effect or whether the constitutional framework in Namibia provides for alternatives.
The separation of power between the three branches of government – the executive, legislature and judiciary – is a fundamental feature of the constitutional dispensation in Namibia. It ensures that one state organ does not exercise exorbitant power and that the entrenched constitutional rights of citizens are not arbitrarily and unreasonably violated. In accordance with the Namibian Constitution, the executive power lies with the president and the Cabinet, the legislative authority with parliament, and the judiciary authority with the courts.
Though the oversight role of the courts is prominent, it is often the last resort to check executive and legislative power. The constitution has other checks and balances in place that regulate the powers of the legislator by the executive and vice versa. In this context, I briefly consider the constitutional powers vested in the president to check and mitigate parliamentary power.
A legislative road
Passing legislation in Namibia requires the approval of three actors – the National Assembly (NA), the National Council (NC) and the president. After a Bill is passed in the NA by simple majority (50+1), it is referred to the NC for consideration, which then either confirms the bill or recommends that it be passed subject to amendments. Thereafter, the NA may then pass the bill again, either in its original form or an amended form. In this way, the NC serves an advisory function over the NA.
The Bill is then referred to the president for assent which may then give rise to three different scenarios. First, where the bill was passed by two-thirds of parliament, the president must assent to the Bill. Second, if the Bill is passed by a simple majority, but such a majority is less than two-thirds of parliament, the president may either assent to the bill or withhold his assent. Where he or she decides to withhold assent, it is referred back to the NA, which can either pass it again in its original or recommended form or decline to pass it completely (Article 56).
At this stage, if the Bill is passed again by NA without a two-thirds majority, and "the president elects not to assent to the Bill, it shall then lapse." In the final scenario, if in the president’s opinion a Bill would, upon its adoption, be in conflict with the Constitution, he or she may inform the attorney-general (AG) who may then take appropriate steps to have the matter decided by a competent court (Article 64).
On 11 July, the AG concluded that the Bill is "in compliance with the law and the constitution".
Checks and balances
It is important to note that the AG is "the principal legal advisor to the president and government" and has no power over the interpretation of the constitution. While the president may surely consider his opinion, he is not obliged to abide by it and is instead entitled to evoke his powers in accordance with Article 64 and instruct the AG to approach the court to consider the constitutionality of the Bill.
Returning to the scope of Article 64, if the court finds that the Bill is in conflict with the constitution, such Bill lapses, and if it holds the contrary, the president retains his power in Article 56 to refuse his assent if the bill was passed by a majority that constitutes less than two-thirds of parliament.
With less than two-thirds of parliament present upon the voting of the Marriage Amendment Bill, it was passed only by a simple majority. Moreover, drawing from the Digashu judgment, the Bill is also certainly unconstitutional. These two facts make it so that the president can exercise his check and balance powers as vested in him by the constitution. He can withhold his assent either by virtue of Article 56 or 64 of the Namibian Constitution.
Several reports suggest that the president – who has sought to build an 'all-inclusive Namibian House’ – is not necessarily concerned with discriminating against sexual minorities but that he "has been under pressure from a faction in Swapo to condemn the Digashu judgment.
Bowing to political pressure
Though it is unclear at this point whether the president has succumbed to the pressure of ‘party politics’, the moment in which he decides to either assent to the Bill or exercise his powers with respect to Article 56 or 64 will certainly shed light on the issue.
The political regime in Namibia makes it so that a president wears two hats – his party hat and his presidential hat. The first operates in the realm of politics, and it is expected that he act in accordance with the vision and principles of his party. When elected as the president of the nation, he is then required to take an oath that he will ‘uphold, protect and defend as the Supreme Law the Constitution of the Republic of Namibia.’ There is no doubt that when the interests of the two hats come into conflict, the president is obliged to prioritise constitutional principles over partisan politics.
The painful experiences of Namibians under the oppressive apartheid regime highlight the dangers of an unchecked parliament. In a bid to prevent history from repeating itself, the people contemplated, in their constitution, checks and balances on state power that would anticipate and prevent a single branch of government from exercising excessive authority. A good portion of those protections are vested in the president. These safeguards are, however, meaningless if they are not actively implemented or are abandoned due to political expediency.
As private Bills are neither initiated by the government nor subject to any internal constitutionality checks by a select committee, they are susceptible to the personal agendas of MPs. Furthermore, there was no input from civil society or other stakeholders, despite its supporters' claims that it represents the views of the majority of Namibians. In these cases, the mechanisms of checks and balances are perhaps more significant in ensuring that such bills pass the constitutionality test.
We can now only hope that the president will make use of his constitutional powers to protect the ‘life’ of the Namibian Constitution – as articulated in his oath to the Namibian people.
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