Friday 23 April 2021
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Strengthening the Rule of Law to bring about Checks and Balance and Effective Justice System

The ideas of “checks and balances” and “separation of powers” are quite similar and very much related to the rule of law, and are foundational to the constitution of the Republic of Namibia.  It is really quite simple:  investment advisors say one does well not to put all his eggs in one basket, a nation does well not to put all its governmental power in one person or one body.
Separation of Powers

In the constitution of Namibia, those powers are split into three separate “branches”: Legislative, Executive, and Judicial.  The first makes the laws, the second puts them into practice, and the third interprets the laws, ruling on what they mean.  In contrast to this model, however, let us suppose that all these powers were vested in our President.  This would make him a dictator.  He could make up the laws as he wishes, interpret them however he pleases, and enforce and implement them whenever he likes. Thus, creating an unjust and ineffective justice system. At the moment however, the executive and legislature are in an unholy alliance. Members of the executive are appointed from members of the legislature. A practice that is not in line with separation of powers.
The so-called Democratic Principles primarily driven by the Western Contact Group which informed the drafting of our constitution propelled the separation of powers we see today. Of course the rationale was for the Western Contact Group (USA, Britain, Canada, West Germany and France) was afraid of SWAPO (former liberation movement) from taking power and use it in a manner that could jeopardise property rights as now entrenched under Chapter 3 of the Constitution.
Here are a few ways the government is supposed to be kept in check.

1.)   Our government has three branches. Imagine a triangle. At the top is the executive branch. The two bottom corners are the judicial branch and the legislative branch – also called Parliament. Each part of the government is connected to the other. Each has its own responsibilities and powers. A system of checks and balances prevents one branch from gaining too much power. So how does this all work?

2.)   One way is through the process of creating laws. Parliament is responsible for making laws. A law starts this process as a bill. When Parliament passes a bill, it goes to the president who reviews it. If he likes it, he signs it, and it becomes a law. If the president does not like it, he vetoes it. When the president decides to veto a bill, the Parliament can vote on it again. If two-thirds of the Parliament votes in favour of the bill, they override the veto. The bill becomes a law. The judicial branch can review laws made by Parliament and approved by the president. They are responsible for deciding if the law agrees with our constitution. Should the judicial branch decide the law does not agree, it is ruled “unconstitutional?” If the Parliament still believes the idea should be a law, they must pass a constitutional amendment.

3.)   The president’s powers are limited in the system of checks and balances. As the leader of the executive branch, the president ensures the enforcement of the laws in our country. In part, he does this by appointing leaders for the many departments and agencies in our government. These departments and agencies work to make our lives better. They make sure our food, air, water, and businesses are safe. They run the military, collect taxes, and help the elderly and disabled. Our safety and protection on highways and roads, in airports, and in our health care system are all part of the government’s responsibility to us. In order to limit the powers of the president, the Parliament must approve the people chosen to fill these jobs.
Many of these powers are rarely used in Windhoek.  It is no surprise, therefore, that our government is exceeding its authority.  With many of the checks and balances not being employed consistently, how could it help but stray?  This has given birth to the ongoing debates on the need of strengthening the Rule of Law.

People Power
In the interim, here are some checks and balances that the citizens present into the equation:
1.)   Citizens elect the government officials

2.)   The citizens are guaranteed freedom of speech, freedom of the press, freedom of assembly, freedom to petition the government for reparation of grievances.

3.)   The citizens are the source of the taxes that support the Central Government.  If the citizens were to be in such disapproval of the Government as to refuse the payment of their taxes, the government would be unfunded.

Of the three examples above, the citizens are failing remarkably at the first, for they traditionally insist on filling Windhoek with officials who will not abide by the Rule of Law.  The use of the second is inconsequential if the first is failing; it does no good to exercise our freedoms of speech if we continue to settle for the kinds of candidates that the current establishment puts forward for our approval.

The Rule of Law revolution is aimed at the first example above.
Rule of Law
While “justice” is a series of aspirations for a better world, and “human rights” consists of internationally agreed and/or legally binding restraints on state power, “the rule of law” falls somewhere in between.

Lawyers and non-lawyers spend a lot of time discussing what the rule of law is. The definition the UN employs is quite a mouthful:
The term rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.

It is my view and that of many scholars that the discussion of the rule of law in the UN should serve to remind both local and international communities that the law and the state serve the individual and not the other way around. The law cannot be used to silence people but to empower them. In much as the principle of the ‘rule of law’ is not a new debate but what makes it dicey is that states have been interpreting it differently to justify their own political decisions and agendas. In repressive states, it is seen not to be the rule of law to express dissenting opinion-sometimes made punishable by the laws of the states. The above scenario does not only happen in repressive regimes, but in notable democracies as well-the expression of extreme leftists ideas has more often been seen to be in violation of the rule of law in most western democracies punishable by law- ‘suppression of communism acts’ passed by parliaments. While also expression of radically liberalist ideas in communist countries have also been seen as offences punishable by law in such states!

Nevertheless it is to be applauded  that the conversation around this principle be kept continuing with the hope that states would one day come to a common understanding of the principle of the rule of law. Nonetheless the debate needs to be kept alive beyond the political corridors of power to afford engagement with all community members on this principle. At the end of the day, it is the civic society that shall be able to hold governments accountable to the rule of law-given that they are the most efficient wheels of transformation turning around in every environment. To my fellow young friends remember to “stay young, don’t transform yourselves into old theoretician or theorisers but maintain the freshness and enthusiasm of youth”.

George Hidipohamba Kambala is a Co – Author of the book     Affirmative Repositioning –     Awakening a Generation

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