Namibia
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Upholding separation of powers essential – experts

Legal consultant Dianne Hubbard says it is important for Namibians to appreciate and uphold the separation of powers as it provides a vital system of ‘checks and balances’.

This system, to which Namibia is subscribed, divides the state into three branches – the legislative, executive, and judicial branches.

Hubbard warns against any attempts to undermine the judiciary’s authority by allowing parliament to override court decisions, as it would erode the essential balance required for a functioning democracy.

“If parliament overrides anything the courts do, then we have no point in having courts. There’s no balance,” Hubbard says.

This is as Swapo member of parliament Jerry Ekandjo’s proposed anti-gay bills, passed in both the National Assembly and National Council, seek to override the Supreme Court’s ruling instructing the Namibian government to recognise same-sex marriages performed legally abroad.

Hubbard, speaking at a panel discussion on Thursday, also pointed out the irony of certain churches supporting Ekandjo’s private member’s bills while not realising the implications such parliamentary dominance could have on their own freedom of religion.

“I bet some of the people who are quite happy about these private member’s bills would be very unhappy if they could not go to court if parliament were to pass a bill saying ‘you can’t register your church because it is something weird and strange’. They would love to go to the courts and rely on their freedom of religion,” Hubbard said.

Ekandjo, while tabling his anti-gay bills in parliament last month, said that the sole authority to make laws resides with parliament, not the courts.

Hubbard said while parliament indeed plays a crucial role in lawmaking, it is the duty of the judiciary to interpret and apply those laws, ensuring their adherence to the Constitution and safeguarding citizens’ rights.

MAJORITY NOT ALWAYS RIGHT

Hubbard further said upholding constitutional rights is fundamental, regardless of the popularity of certain issues among the public.

“Most people in Namibia, if you did a poll, would probably say criminals who are arrested should not have a right to bail. I dare say if you did a referendum, that position would probably win. But, our Constitution says ‘you are innocent until proven guilty’. Just because something is popular with most people in the country doesn’t take away constitutional rights, Hubbard said.

Gwen Lister, a veteran journalist and the founder of The Namibian, echoed Hubbard’s sentiment regarding the significance of the minority’s perspective in a democratic society.

Lister emphasised that the minority’s viewpoint should not be disregarded simply because it differs from the majority, as sometimes it may hold valuable insights and considerations.

“The minority isn’t always right. Sometimes the minority is right,” Lister said.

Lister also pointed out the importance of parliamentarians having individual perspectives and not merely conforming to their party’s stance.

She expressed concern over the context within the ruling party where divergent democratic voices appear to be suppressed, leading to an ‘us versus them’ mentality reminiscent of the apartheid era.

“Unfortunately, that ‘othering’ had come back to haunt us. It has happened during apartheid and it is again,” Lister said.

Lister underscored the necessity of Namibian parliamentarians being well-informed and thoroughly briefed on the bills they are tasked with enacting. She highlighted an example of lawmakers discussing a cybercrime bill without a proper understanding of what cybercrime truly entails.

“They don’t even know what cybercrime is and they are looking at a cybercrime bill but they really don’t know. They think it’s someone taking a jab at them on Facebook or something,” Lister said.

The panelists, who included Namibia Media Trust director Zoe Titus, researcher Bradley Tjongarero, and media ombudsman John Nakuta, highlighted the importance the role of the media is sensitising the public on the separation of powers and its importance.