On the occasion of the 27th Anniversary of the adoption of the Namibian Constitution on 9 February, I wish to look at the Third Amendment Bill that was enacted by the Parliament of the Republic of Namibia, in accordance with Article 132 of the Namibian Constitution, to amend the Namibian Constitution to create a Vice-President to be appointed by the President to deputise the President, among others, and to provide for incidental matters.
Given that at the opening of the Fifth Session of the Sixth Parliament, President Hage Geingob referred to the Prime Minister as the Leader of Government business in Parliament, the question that begs for an answer, in terms of constitutional law, is Namibia a semi-presidential system or a pure Presidential system a la American style?
Mind you, not that I have a problem with either of the two systems as the malaise is with our political culture of democracy rather than the institutions per se. As I once wrote on these pages, since it was first proposed by Maurice Duverger (1980) original and influential definition, semi-presidentialism may be defined by three features: A president who is popularly elected; The president has considerable constitutional authority; There exists also a Prime Minister and Cabinet, subject to the confidence of the Assembly majority.
These features define a dual executive (Blondel 1984), in that the elected President is not merely a head of state who lacks political authority, but also is not clearly the “chief” executive, because of the existence of a Prime Minister. With government responsible to the parliament (Duvergerian condition three), there exists a parliamentary chain of command and responsibility like in a parliamentary system.
However, the fact that the president is elected popularly (Duvergerian condition one), i.e. not elected by the parliament, establishes presidency as an independent institution on a par with the parliament. The empowerment of the president on a significant scale (Duvergerian condition two) makes him capable of exercising real influence over the premier and the cabinet, hence the second chain of command and responsibility. Thus, both the parliament and the president can make a claim to the government, and to state power.
Duverger’s tripartite definition, argues that the institutional core of the semi-presidential regime sets the stage for potential conflict between the president and the parliament over control of government, as the two chains of legitimacy, command, and responsibility (CLCRs hereafter) may collide. The origins of semi-presidentialism is thus to be found in the cause of this simultaneous insistence. By virtue of its being called semi-presidential, the regime type in question is clearly identified as a hybrid that is neither presidential nor parliamentary.
If we consider ‘presidential’ and ‘parliamentary’ to be terms denoting pure types, from both of which semi-presidentialism draws certain characteristics, we need clear benchmarks as to the features of the pure types. A “pure” parliamentary democracy should be understood to mean a regime that can be defined by the following two basic features: Executive authority, consisting of a prime minister and cabinet, arises out of the legislative assembly. The executive is at all times subject to potential dismissal via a vote of “no confidence” by a majority of the legislative assembly as it is in Great Britain.
These two criteria express a hierarchical relationship of executive to legislative authority, whereby the executive arises from and is responsible to the majority of the assembly. (A non-exhaustive list of recent works in this subfield just in the past would include von Mettenheim 1997; Frye 1997, 2002; Taras 1997, 2003; Metclaf 2000; Siaroff 2003; Nousiainen 2001).
Presidentialism on the other hand, is defined by the above mentioned three basic features: The executive is headed by a popularly elected president who serves as the “chief executive”; The terms of the chief executive and the legislative assembly are fixed, and not subject to mutual confidence; The president names and directs the cabinet and has some constitutionally granted law-making authority as it is in the United States of America where we see the President issuing Executive Orders.
In a parliamentary system, executive authority originates from the assembly or what we call here Parliament. As for a system to be parliamentary, the process of forming a government must fall to the majority party, if there is one. If there is not, it must derive from bargaining among those politicians with an elective mandate from the most recent assembly elections. Once formed, the government survives in office only so long as it does not lose the ‘confidence’ of the majority. In a presidential system, on the other hand, the origin and survival of executive and legislative authority are separate.
The first criterion of the definition of presidentialism contrasts starkly with that for parliamentarism, in that it denotes the existence of a chief executive whose authority originates with the electorate.
The second criterion specifies that, unlike in a parliamentary system, the chief executive is not subject to dismissal by a legislative majority. Furthermore, neither is the assembly subject to early dissolution by the president. Both branches thus survive in office independent of one another. The defining characteristics of parliamentary and presidential democracy, then, speak first to the question of the origin and survival of the executive and legislative branches (Shugart and Carey 1992).
The addition of the third criterion, regarding the president’s authority, is important for establishing the independence of the president not only in terms of origin and survival, but also in the executive function, for it sets out that the cabinet derives its authority from the president and not from parliament. It further stipulates that the president has some legislative authority, and thus is not “merely” the executive.
It should also be said that the juxtaposition of an elected president with a cabinet responsible to parliament is the hallmark of a semi-presidential system. Such is the very essence of a semi-presidential system. Thus in a typical semi-presidential or premier-presidential system, the president selects the prime minister who heads the cabinet, but authority to dismiss the cabinet rests exclusively with the assembly majority.
Nevertheless, contemporary scholarship in a neo-Madisonian tradition (Carroll and Shugart 2005) which is interested in the organization of government in terms of the hierarchical and transactional authority patterns between institutions, insists that in a hierarchy, one institution is subordinated to another.
Hierarchy is thus about vertical relationships, in that one actor is superior to another.
Transactional relationships, on the other hand, are among co-equals. Two institutions or actors in a transactional relationship each have independent sources of authority, and must cooperate to accomplish some task, thereby implying a horizontal juxtaposition of co-equals.
Once appointed then, a cabinet that enjoys parliamentary confidence is not subordinated to the president but to parliament, and thus the relationship between the President and Cabinet is strictly speaking transactional. In a typical president-parliamentary system however, on the other hand, the president selects the cabinet and also retains the possibility of dismissal. In this sense, this form of semi-presidentialism is much closer to pure presidentialism.
The question is; in our hybrid semi-presidential system where we don’t only have a Prime Minister subjected to a vote of no confidence by a Parliament but also a Vice-president who first should be elected as a parliamentarian and then resign his position once appointed by the President to be his deputy, what type of authority pattern then does the Prime Minister have to both the President and the Vice President? It seems it is both vertical hierarchical relationship to the President and horizontal transactional as far as the Vice President is concerned. Hierarchy, meaning vertical relationships, in that one actor is superior to another and transactional relationships meaning each with independent sources of authority, and which must cooperate to accomplish some task, thereby implying a horizontal juxtaposition of co-equals.
If we look at review by Stanley Katzao of the Ph.D Thesis by Dr Hage Gottfried Geingob entitled “State Formation in Namibia: Promoting Democracy and Good Governance”, looking at a scholarly project representing an academic endeavour at providing an intellectual discourse that connects the process of state formation to the democratization imperative, he says Chapter Four deals with the process of drafting the constitution that was to launch the Republic of Namibia. In this Chapter, according to Dr Geingob, issues that accounted for heated, demanding and potentially explosive altercations were: – The role of the Presidency – Executive or Ceremonial Head of State? – Tenure of the President – will there be a limit to the number of times one would be eligible for the Presidential post? – Powers of the President – would there be a diffusion of Executive power? – Legislature – accountability, checks and balances – single chamber or bicameral? – Bill of Rights – Electoral System and the – Procedure for Amending the Constitution.
Katzao says Dr Geingob unveils in a very enlightening and humorous scholarly manner the intrigues involved in addressing and resolving the above-mentioned paradoxes but nowhere does the review deal with the issue of a Semi-Presidential or purely Presidential system. I just wonder why the President deemed it necessary to Amend the Constitution to create the office of the Vice President in a typical semi-presidential or premier-presidential system, where, as the President he selects the Prime Minister who heads government business in parliament, and is subjected to a vote of no confidence by the Assembly majority while at the same time, the President selects the Cabinet and also retains the possibility of dismissal in a typical president-parliamentary system which is closer to pure presidentialism? Was it to correct the imperfection that aroused from the heated debates in the Constituent Assembly?
Be as it may, for a constitutional law student this system is complicated and we simply cannot have both at the same time.
In my view the, the previous system was just functioning perfectly well as it is in many countries such as France without the need to complicate it with the appointment of a Vice President who may not necessarily be above the Premier Minister as the leader of the Executive in Parliament.
Disclaimer: The opinions expressed here do not necessarily reflect those of my employer and this newspaper but solely reflect my personal views as a citizen.