update: The Namibian has a story on this bill, entitled ‘”Supreme Court might become irrelevant”‘
In the space of three days last week, government passed the “Namibia Citizenship Amendment Bill” — a document which could render some Namibians stateless, all while undermining the separation of powers in our government.
Well, basically there was a Supreme Court ruling recently that government didn’t like, and they passed a law to ovverrule the court. The case in question concerned a foreign couple who’d had two kids here. One got a Namibian birth certificate, the other one didn’t, and they sued that both should get Namibian citizenship while the government said neither should. It’s not a clear decision, because the constitution says if you have a child in Namibia, it will get citizenship if you are “ordinarily resident”. Home affairs said that means permanent residence only, the court said it wasn’t that clear – and so these kids should get their passports. Mind you this doesn’t just concern this family. There are a bunch of people who have had Namibian passports for a long time, sometimes over two decades, who have recently been told that they are no longer citizens and their passports won’t be renewed.
So government didn’t like the ruling from the court, and set out to “correct” it. They were clearly in a great rush: the first draft was so full of typos (what is a “zitizen”?) that they withdrew it and came back the next day with a fixed version. And then they passed it on Friday.
Why does this matter?
1. This bill could take away the citizenship of Namibians
If parliament just wanted to clarify that from now on, only permanent residents get citizenship for their kids, and all of you on work permits or student visas don’t get them even if you’ve lived here for decades, have built a house, etc — that would be one thing. But the bill makes explicit reference to the recent ruling, saying “no rights may arise” from it. It appears to me this could mean that people who have already been Namibian citizens their entire life — whether that life has spanned six months, or 25 years — can be told “nevermind, you’re no longer a Namibian”.
The motivational speech seems to indicate as much. Pendukeni Iivula Ithana said that:
I am aware that the Constitution prohibits our deprivation of citizenship to the extent that we render people to be stateless. I do however hasten to add that, in many cases these children would not be otherwise stateless as they ought to follow the non-Namibian citizenship/s of their parents.
in MANY cases people won’t be stateless. So are we fine with some people — Namibian citizens — becoming stateless because the Ministry couldn’t sort out its definitions in time and doesn’t want to follow the court?
Which brings me to my second objection
2. This bill could undermine the system of checks and balances in our country.
The Supreme Court has that name for a reason.It’s supposed to make the ultimate decision as to what is lawful and what is not. If they interpret the constitution in a certain way, that should be the end of the discussion for the vast majority of cases. The fact that the National Assembly was so quick to dismiss this court ruling, simply because they didn’t like the outcome, is very worrying indeed.
Last Friday, two lawers from the Legal Assistance Centre wrote an article in the Namibian called “A Constitutional Crisis?”. They write:
The memorandum accompanying the bill asserts that the bill is clarifying the ambiguities created by differing opinions from the attorney general, the High Court and the Supreme Court. But the ‘opinion’ of the Supreme Court on the meaning of the Constitution is not just one of many interpretations. The Supreme Court has the Constitutional responsibility, under Article 79, to interpret the Constitution. And, as the highest court of appeal in Namibia, its decisions on the Constitution’s meaning take precedence over those of lower courts and government officials
There is no doubt in this case. The bill currently before the National Assembly directly contradicts the Supreme Court’s ruling. If it is passed, it would subvert the separation of powers, which is the essence of Namibia’s Constitutional framework.
The subject matter of the bill before parliament will not affect many people in Namibia. But undermining the role of the courts and the supremacy of the Constitution would affect us all.
I’m going to emphasise their next two paragraphs because they matter so much.
If parliament can overrule any interpretation of the Constitution which it does not like, then the Constitution is no longer the supreme law of Namibia. If this bill is allowed to pass, it means that parliament is supreme, and the Constitution and the courts have become irrelevant. This would change the very nature of Namibian democracy.
Passing this law would take us back to the system which prevailed in pre-independence times when there was no check on the legislature. Even a democratically-elected parliament should not be all-powerful.
Doesn’t sound too much to ask for.