By the skin of its teeth: How Namibia narrowly avoided a constitutional crisis
Source: CRAI blog
By Kaity Cooper and Dianne Hubbard, Legal Assistance Centre, Namibia
Mr de Wilde and Ms van den Meij are Dutch citizens who have been living in Namibia on employment permits since 2006. In 2009, the couple had a child, who was issued a “non-Namibian” birth certificate, meaning the boy was issued a birth certificate recording that he was born in Namibia but was not a Namibian citizen. According to Article 4(1)(d) of the Namibian Constitution, children born in Namibia to non-Namibian parents who are “ordinarily resident” in the country are considered citizens by birth. However, the practice of the Ministry of Home Affairs and Immigration was to only grant citizenship to children of permanent residents, with permanent residence being a status which is at the discretion of Ministry officials on application after 10 years of lawful residence.
In 2012, the couple had a second son in Namibia – but this time an officer of the Ministry of Home Affairs and Immigration issued the child a birth certificate recording him as a Namibian citizen. This prompted the couple to approach the High Court over the refusal to grant their first-born a “Namibian citizen” birth certificate. Little did the family know that their case would bring Namibia to the verge of the greatest constitutional crisis since Independence.
The couple lost their case at the High Court but appealed to the Supreme Court which ruled in their favour on 23 June 2016. After an analysis of the relevant provisions, the Supreme Court concluded that the framers of the Constitution intended the phrase “ordinarily resident” to have a meaning distinct from “permanent residence”. The Supreme Court went on to hold that in determining whether a person is ordinarily resident for the purposes of Namibian citizenship, “each case must be considered on its facts”. The Court identified the following key considerations:
- whether the person concerned normally lives in Namibia and is not merely visiting;
- whether the person has no immediate intention of permanent departure; and
- whether facts capable of objective proof support that person’s intention to make Namibia his or her habitual home.
In the case before it, the Court concluded that Mr de Wilde and Ms van den Meij were ordinarily resident at the time of the birth of their elder child, meaning that he was entitled under the Constitution to Namibian citizenship by birth.
Unfortunately, the Court’s decision was not universally well received. Within weeks of the judgment, the Ministry of Home Affairs and Immigration introduced the Namibian Citizenship Amendment Bill into the National Assembly. The Bill aimed to reverse the Supreme Court’s interpretation of the Constitution by defining “ordinary resident” to mean “permanent resident” in relation to the acquisition of Namibian citizenship. It also explicitly excluded from citizenship by birth children of parents on temporary permits – including employment permits, study permits and visitor permits and children of refugees.
The Bill even went so far as to explicitly negate the Supreme Court’s judgment, stating that “no rights may arise as a result of the decision of the Supreme Court of Namibia prior to the commencement of this Act in which the Supreme Court concluded that it was not the intention of Parliament to define the term ‘ordinarily resident’ to mean ‘permanently resident’ for the purposes of the acquisition of citizenship [by] birth after the date of Independence in terms of article 4(1)(d) of the Namibian Constitution”.
The justification offered for the Bill was that the Court’s decision created implementation difficulties for the Ministry’s administrative officials who would now have to determine citizenship on a case by case basis. The Ministry also aimed to reserve the privileges that come with citizenship by birth to persons who have a strong connection to Namibia and are not just born here by chance.
In introducing the Bill, the Ministry relied on Article 81 of the Constitution which provides that, “a decision of the Supreme Court shall be binding on all other courts of Namibia and all persons in Namibia unless it is reversed by the Supreme Court itself or is contradicted by an Act of Parliament lawfully enacted.” The Attorney-General maintained that Article 81 gave Parliament the power to overrule any judgment of the Supreme Court, even an interpretation of the Constitution.
As soon as the Bill was introduced, Namibia erupted in controversy, kick-started by an opinion piece by human rights watchdog, the Legal Assistance Centre, and a press statement by the Society of Advocates which followed hot on its heels. Legal experts from around the country expressed concern that the National Assembly was trying to usurp the authority of the Supreme Court as the guardian of the Constitution and in doing so was violating the bedrock of Namibia’s constitutional democracy: the rule of law, the independence of the judiciary and the separation of powers. They warned that the Bill threatened to make the Supreme Court and the Constitution irrelevant, taking Namibia back to the system that prevailed pre-Independence when there were no checks on legislative power.
Despite this outcry, the Citizenship Amendment Bill quickly passed at the National Assembly. It was then sent to the National Council where it was referred to a Select Committee for public consultation on its constitutionality.
The stakeholders who made representations to the Select Committee – including the Legal Assistance Centre, the Law Society of Namibia and the Ombudsman – were unanimous in their view that the Bill was unconstitutional. In their view, Article 81 is to be read in conjunction with other relevant constitutional provisions as well as the Constitution’s spirit and founding principles. For example, they pointed to Article 79, which assigns responsibility for the interpretation of the Constitution to the Supreme Court; Article 1(6), which states that the Constitution is the Supreme Law of Namibia; and Article 1(1), which establishes Namibia as a sovereign, secular, democratic and unitary state founded upon the principles of democracy, the rule of law and justice for all. They also argued that Namibia’s constitutional democracy is based on the separation of powers, the purpose of which is to prevent a concentration of power in any one branch of government. Read in this context, Article 81 means that Parliament is free to change legislation which has been interpreted by the Supreme Court; however, once the Supreme Court has ruled on the meaning of a constitutional provision, all legislation subsequently enacted must be consistent with such interpretation. The approach to Article 81 advanced by the Attorney General would nullify the role of the Supreme Court in interpreting the Constitution, which is its explicit duty under Article 79(2).
The stakeholders pointed out that the only way Parliament can legitimately override an interpretation of the Constitution by the Supreme Court would be to amend the Constitution pursuant to Article 132. If Parliament could overrule any interpretation of the Constitution it did not like, without amending the Constitution, then the Constitution would no longer be the supreme law of Namibia. This would change the very nature of Namibian democracy.
Fortunately, after considering these views, the Select Committee reached consensus that the Citizenship Amendment Bill did not meet the constitutional requirements and thus could not be passed. The Bill was referred back to the National Assembly for reconsideration.
In October 2016, the Bill was withdrawn from the National Assembly and referred back to Cabinet for further consultation. It is unlikely that it will reappear in similar terms as His Excellency Hage Geingob, President of Namibia, expressed the welcome opinion that the proposed amendment was unnecessary and that lawmakers and the executive should not be seen as sidestepping court decisions. Meanwhile, Cabinet decided to implement the ruling of the Supreme Court and granted Namibian citizenship to the elder de Wilde son.
It is not clear whether the Attorney General will take steps to have the Supreme Court pronounce a declaratory judgment on the interpretation of Article 81. For now, Namibia’s constitutional democracy has survived by the skin of its teeth. This is surely a success story for the rule of law, the separation of powers and the independence of the judiciary. It is also a clear example of the difference concerned citizens can make in preserving their constitutional democracy by speaking out in democratic dissent. In light of similar challenges to these fundamental principles across the globe, Namibia’s story should be a source of hope to citizens everywhere, but also a reminder that a constitutional democracy can be fragile and it is the responsibility of all citizens to guard it with all their might.