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PRESS RELEASE
28 July 2016

PARLIAMENT’S CHALLENGE TO THE SEPARATION OF POWERS
AND THE RULE OF LAW IN NAMIBIA

Last month the Namibian Supreme Court, in the De Wilde case, in interpreting Article 4 of the Namibian Constitution, ruled that a child born in Namibia to non-Namibian citizens would be a Namibian citizen by birth where the child’s father or mother was ordinarily resident in Namibia at the time of the birth. In so doing the Supreme Court was exercising its powers in terms of Article 79(2) of the Constitution to interpret, implement and uphold the provisions of the Namibian Constitution. This clear constitutional interpretation of Article 4(1) should have been the final word on the topic.

However, last week the National Assembly passed the Namibian Citizenship Amendment Bill with the express intention of overriding the Supreme Court judgment. The Bill provides that a child born under the circumstances of the De Wilde child would only obtain Namibian citizenship where both parents were permanent residents at the time of the birth. As if this was not enough, Parliament went further to legislate that “no rights may arise as result of the decision of the Supreme Court” in the De Wilde case.

In effect Parliament is seeking to impose its will by negating the interpretation given to Article 4(1) of the Constitution by the Supreme Court. The only way to lawfully achieve this result would have been to amend the Constitution, a route Parliament has not followed. The Society of Advocates is deeply concerned about the impact of the Bill. This legislation constitutes 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.

Namibia has a jealously guarded reputation as a constitutional democracy which upholds the doctrine of the separation of powers and the rule of law. We cannot do any better than quote a recent judgment of the Namibian Supreme Court, where the Court stated that “these principles presuppose a culture of mutual respect between the executive, legislature and the judiciary”. Unfortunately the Bill disrespects the separation of powers and undermines the rule of law.

In the light of the very fundamental issues at stake, we call on His Excellency the President to exercise his powers in terms of Article 64 of the Constitution in withholding his assent to the Bill on the basis that its adoption would conflict with the provisions of the Constitution. This would then entitle the Attorney General to take the appropriate steps to have the question of the constitutionality of the Bill referred to the Supreme Court for final determination.

ADV E M SCHIMMING-CHASE
PRESIDENT
28 July 2016



Resolution

Bar Conference: Belfast 30th June 2008

At the World Bar Conference of the International Council of Advocates and Barristers, (ICAB), held in Belfast on 30th June 2008, the Bars of Australia, England and Wales, Hong Kong. Ireland, Namibia, Northern Ireland, Scotland, South Africa and Zimbabwe, being the member Bars of ICAB, unanimously resolved:

  • To deplore the defiance by the Government of Zimbabwe of its human rights obligations under domestic and international law;
  • To call upon the secretariats of the Southern African Development Community, the African Union and the United Nations to initiate all steps necessary to procure the return of the rule of law to Zimbabwe and respect by the Government of Zimbabwe for the rule of law;
  • To condemn the detention without trial of our colleague Eric Matinenga, Member of Parliament of Zimbabwe and leader of the Harare Bar and the defiance of the High Court order for his release granted on an urgent basis by the High Court on 14th June 2008;
  • To call upon the members and secretariat of the Southern African Development Community to ensure that independent legal observers are permitted to be present in all courts in Zimbabwe throughout the trials of members of the legal profession who are being prosecuted for alleged offences;
  • To demand that the lawyers of Zimbabwe be permitted without intimidation or penalty to perform their duty to represent and defend their clients and ensure the entitlement of their clients to basic human rights;
  • To demand that the magistrates of Zimbabwe be permitted without intimidation to independently perform their duty's in accordance with the rule of law and to ensure the entitlement to basic human rights;
  • To demand that the Attorney General of Zimbabwe independently and impartially exercise his powers to uphold the rule of law.



Previous Press Releases

8 August 2011 The Society of Advocates of Namibia ("the Society") has noted certain public criticisms of judgments and judges of the High Court of Namibia ("the Court"). This is an unfortunate trend, moreover where such criticism is neither accurate nor fair, and in circumstances where, as the Society has already stated in an earlier press-release, the judiciary cannot enter into public controversy and cannot reply to criticism levelled in this manner. [more]........
22 June 2011 In a recent media release issued by the Minister of Trade and Industry, Dr Hage Geingob ("the Minister"), criticism was levelled against an order handed down by the High Court of Namibia earlier this month concerning an application initiated by Wal-Mart Stores Incorporated, and to which application the Minister was joined as a respondent. [more]........
1 June 2011 The Society of Advocates of Namibia notes, with grave concern, recent developments regarding the Southern African Development Tribunal (“the Tribunal”). [more]........
1 July 2008 The Society of Advocates of Namibia condemns the blatant disregard for the rule of law, and the repeated human rights abuses, occurring in Zimbabwe. [more]........
20 July 2007 The International Council of Barristers and Advocates (ICAB), of which the Faculty of Advocates is a member, has today (20 July 2007) condemned the continuing campaign of intimidation and violence being waged on Zimbabwe's lawyers by Robert Mugabe's Zanu-PF regime. [more].........
February 2004 The Society has learnt with grave concern that 13 accused in the Caprivi high treason trial were released by order of Court yesterday and subsequently re-arrested apparently on charges yet to be formulated. [more].........
January 2003
In a recent press report the Right Honourable Prime Minister, Mr Theo-Ben Gurirab is quoted as making a number of allegations about the judiciary to a group of American law students. [more].........
July 2002
The Society of Advocates of Namibia deplores the comments made by Mr Paulus Kapia concerning the Chief Justice of Namibia in his capacity as the Secretary of the Youth League of the ruling party, at a recent meeting held at Keetmanshoop. [more].........