- May 5, 2022
- |Law Everyday
IS THE SUPREME COURT THE LAST RESORT, OR IS IT PARLIAMENT?
Article 78(1)(a) – (c) of Chapter 9 of the Constitution provides that judicial power shall be vested in the Courts of Namibia consisting of the Supreme Court, High Court, and Lower Courts. Article 78(2) states that the Courts shall be independent and subject to only the Constitution and the law. The Courts operate in a hierarchy; thus, Article 79(2) provides that the Supreme Court shall hear and adjudicate upon appeals emanating from the High Court, including appeals that involve the interpretation, implementation, and upholding of the Constitution and the fundamental rights and freedoms guaranteed thereunder. Of note, Article 81 further state 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.”
Once you appeal to the Supreme Court, it will hear and adjudicate the appeal and make a decision (judgment) and that decision is final and binding on you and your counterpart, on the High Court and the Lower Courts, and on all other persons in Namibia. The binding nature of Supreme Court decisions on the other Courts is what is referred to as Stare Decisis. However, this is not the end of the matter as Article 81 further states that a decision of the Supreme Court shall be binding unless it is contradicted by an Act of Parliament lawfully enacted. The latter part is the bone I chose to gnaw on today. The Constitution clearly provides for the Separation of Powers doctrine, a fundamental pillar of democracy. With respect to judicial independence, Article 78(3) reads that:
“No member of the Cabinet or the Legislature or any other person shall interfere with Judges or judicial officers in the exercise of their judicial functions, and all organs of the State shall accord such assistance as the Courts may require to protect their independence, dignity and effectiveness, subject to the terms of this Constitution or any other law.”
Now, think about the title of this opinion piece and imagine that practically, this means that that Parliament may ‘contradict’ a decision of the Supreme Court, provided that it acts in terms of the letter and spirit of the Namibian Constitution, including all the provisions of Chapter 3 relating to fundamental human rights. Although there can be no doubt of the power of the Namibian High Court and Supreme Court to declare any statute, or part thereof, unconstitutional in terms of Article 5, it seems that Parliament has the last say (Chairperson of the Immigration Selection Board v Frank 2001 NR 107). According to Bangamwabo (2010), Article 81 of the Constitution allows Parliament to overturn or contradict rulings of the Supreme Court, and the literal interpretation of this Article may raise the following conundrums:
1. Does Article 81 make Parliament a final (judicial) authority with the powers to review and/or contradict decisions rendered by the Supreme Court?
2. Assuming that the answer to the foregoing question is in the affirmative, does this mean that Article 81 reintroduces the Westminster system of parliamentary sovereignty through a back door, in contradiction with Article 1(6) of the Constitution?
3. If the legislature can willy-nilly contradict decisions of the highest court of the land, what would then be the place, and relevance of the doctrine of a separation of powers, which is well-rooted in all modern politico-legal systems?
4. Can Article 81 be construed as a constitutional instrument put in place to counter the so-called counter-majoritarian dilemma?
The learned author attempted to answer those questions and held the opinion that whilst the legislature is, by virtue of Article 81, empowered to contradict the Supreme Court’s decisions, this process must be done lawfully and in line with other constitutional provisions. How Parliament can do this is through Constitutional amendment, he proposed.
In my opinion, this is what it all means. All persons have a right, in terms of Article 12 to have their civil rights and obligations or any criminal charges against them determined in a fair and public hearing by an independent, impartial, and competent Court or Tribunal established by law (persons have other specific rights which they can enforce). The Courts are established by Article 78 in a hierarchy. Therefore, when a person has a case, civil, criminal, or otherwise, they shall have a right to have it determined by the Courts, starting with the Lower Courts, the High Court, and then the Supreme Court. In this sense, the Supreme Court is the last Court any person can approach to have their civil rights and obligations or criminal charges determined, but it may not be the last institution that may have a say on an impugned matter, Parliament is, in exceptional appropriate cases (Frank case). But a person cannot approach Parliament as he/she would approach a Court of law. How Parliament can then ‘contradict’ a decision of the Supreme Court is through legislation, which is a process of passing Acts of Parliament on any given matter, provided that the passing of such Act of Parliament is lawful, in that it must be made in terms of the law, of which the Constitution is supreme (Article 1(6)).
The distinguishing mark here is therefore approachability. In determining your civil rights or criminal charges, you may approach the Courts until the Supreme Court whose decisions, including decisions reversed by the Supreme Court itself, are final and binding. After that, there is no other Court to approach. However, because Supreme Court decisions are binding on other Courts and all other persons in Namibia, Parliament can lawfully reverse or contradict those decisions when exercising its law-making functions.
Fedden Mainga Mukwata – Legal Pundit