Democracy that is Difficult to Define
By Lt Gen (Rtd) Denga Ndaitwah
DEMOCRACY is subject to different interpretations by different people. However, it is famously known to mean periodic, fair, credible and free elections. It is also understood to mean government by the people for the people.
By its nature, democracy is an expression of exercising democratic rights through elections. It also became a common expression by some politicians after elections that ‘The people have spoken.’
The Namibian nation will go to the polls to cast their votes in the Presidential and National Assembly (NA) elections come November. As we count down the remaining 65 days, we shall soon witness political leaders getting out of their comfort zones to solicit political support from potential voters.
In the first phase before the political parties commence with their campaigns, they will start with internal arrangements of consolidating their party’s list of candidates for parliament.
Swapo Party has already finalised its list of 96 candidates, as per Constitutional requirement. This article will, therefore, reflect on the Namibian Constitutional proviso and the Swapo Party rules and procedures regarding appointments and nominations to the NA.
Chapter 7, Article 46 (b) of the Constitution states that “No more than eight persons [shall be] appointed by the President under Article 35(5)(c) hereof by virtue of their special expertise, status, skill or experience, provided that such members shall have no vote in the NA, and shall not be taken into account for the purpose of determining any specific majorities that are required under this Constitution or any other law.”
Accordingly, the Namibian Constitution has brought out very clearly the criteria on which the President has to appoint eight members to the NA. The most outstanding criteria are special expertise, status, skill or experience. The above paragraph is, therefore, the legal provision on which the President shall appoint members to the NA.
Apart from the Namibian Constitution, Swapo Party has its internal rules and procedures for election of party office-bearers and party representatives at legislative and government levels. After the electoral college has elected its candidates for the NA, the party president has the power to nominate ten members to the party’s list.
In trying to establish the legal basis on which the party president nominates ten members, I perused through the constitution of the Swapo Party, but it seems there is no constitutional provision empowering the party president to make that nomination.
While Swapo Party’s rules and procedures made that provision, it is silent on the criteria to be used by the party president in nominating members to the list. Based on the said rules and procedures, the Swapo Party president nominated ten members to the list after the electoral college that convened on 6-7 September 2019.
As reflected above, there is no legal question on the President’s power to appoint members to the NA by virtue of the supreme law. Nevertheless, there is a vacuum in the party’s constitution. Similarly, there are no set criteria in its rules and procedures on which the party president shall nominate members to the party’s list of candidates. That is what created the bone of contention – which is worth discussing.
Generally, the rule of the game going for election is the competition between contenders. After contestation, inevitably, there shall always be winners and losers. In every competition, both winners and losers are equally important, because there shall be no winner if there is no loser.
With regard to the party’s rules and procedures, after people have spoken during the electoral college, the party president shall always have the prerogative to nominate ten members to the party’s list of 96, who shall be eligible to stand as potential members of the NA.
In order for the party president to secure those nominees, their names will occupy the upper positions in the list. Hence, during the recently concluded electoral college, the names of those ten nominees started at number 23 down to number 40. This does not need empirical testing to determine the downward push of those who were democratically elected.
Let us now try to understand it from this perspective. If there were no ten presidential nominees to the list, a candidate who was popularly elected by eligible voters at the electoral college and who was supposed to be number 40, but because of that downward push, he or she is now at number 50 and so it goes on down the list.
Some of the party president’s nominees might be those who were rejected and voted out during the electoral college, but because of the president’s prerogative, he or she has the full right to nominate them to the list.
It is interesting to consider that the president of Swapo Party has the power to appoint 18 members to the NA. First, he or she shall nominate ten members to the party’s list after the electoral college. Secondly, they shall appoint eight members to NA after elections. The bottom-line is that all 18 members are included in the same body, which is the NA.
Take a worst case scenario, which I think will not happen soon. Should it happen during whatever elections that the electorate gives Swapo Party 45 seats; that would mean there would only be 37 party members with voting power, as eight members would be without voting power, given that they would be nominees of the President of the Republic.
The most fundamental question of democratic principle I have been asking myself without getting any clear answer is, what is the definition of democracy? When can we say ‘The people have spoken’? How can we democratically justify that after the people have spoken, a person who was voted out will be nominated and can push down those on the list who were popularly elected?
I do not want to further provoke intellectual minds. However, I would conclude by suggesting the best balancing act is for the President to only appoint members to the NA after the national election. When appointing them, as per the supreme law, there will be no implications.
In that case, they can even be placed at the tail end of the list, as the President shall still have the legal power and prerogative to appoint them as ministers or deputy ministers, as per their expertise, status, skill and experience without any hindrances.
* Lt Gen (Rtd) is the former Chief of the Defence Force, a holder of Master’s degree in Strategic Studies and is HOD and senior lecturer at IUM. The views expressed here are his own.