Parliament is a check-and-balance, not a post office for President’s letters

Lazarus Kwedhi

The objection and subsequent approval of Mr Gerson Sindano as chairperson of the Electoral Commission of Namibia will be remembered not by its name, “who voted in favour or who walked out of Parliament against the appointment,” but for the precedent it sets.

For the first time in the 8th Parliament, an opposition party stood up and said: “We will not approve in the dark.”

The Affirmative Repositioning Movement demanded the records. And when Parliament refused, AR said it would go to court.

That sequence to demand, refuse and litigate, is the clearest sign yet that the era of “command and impose” politics is over. In its place must come law, facts, and check-and-balance.

What AR demanded and why

When the President’s nomination letter for the ECN chairperson was tabled, AR did not object to Mr Sindano as an individual. It objected to the process.

AR’s position was straightforward: if the President nominated “on the recommendation of the Selection Committee” as required by the Electoral Act 5 of 2014, then Parliament is entitled to see the facts of that recommendation before voting.

Specifically, AR demanded: the Selection Committee report, interview score sheets, assessment criteria, nominee CVs, and declarations.

The reason is constitutional. Article 94B(3) requires “approval by the National Assembly.” Article 94B(2) requires the ECN to be “independent, transparent and impartial.”

You cannot test transparency, nor can you grant informed approval, without seeing how the recommendation was reached.

AR argued that approval without records is not oversight. It is an endorsement. And endorsement without scrutiny makes Parliament a post office for the President’s letters.

The Speaker and Attorney-General’s response

The Speaker ruled that the records “are not documents of the National Assembly.” The Attorney-General advised that a nomination letter is sufficient in law.

The government’s argument was formalistic, not grounded in the check-and-balance principle. It was that the records belong to the Committee Chair, not to Parliament. Parliament’s role is to vote, not to investigate.

But that misses two points.

First, custody. Under Article 94B(5), “the depository of the records, minutes, documents of the Electoral Commission of Namibia… shall be the Chief Electoral and Referenda Officer.”

The Selection Committee acts on behalf of the ECN. Once its work is done, the file belongs to the institution, not to an individual.

Second, function. Parliament is not asking to own the file. It is asking for copies to scrutinise in order to perform its constitutional function. We do this elsewhere.

Under the Local Authorities Act, a council appoints a chief executive officer with the prior approval of the minister.

As such, the minister cannot grant approval simply by receiving a letter from council without seeing the recruitment, selection, and interview file with all supporting documents.

The same applies to the appointment of Grade 5 and upward positions for public servants. The Public Service Commission approves such appointments on the recommendation of the interview panel through the ministry’s executive director.

Hence, the Public Service Commission cannot grant approval simply because it received a letter from the executive director without first seeing the interview panel report with all supporting documents of the recruitment and selection records.

If records are required and provided as supporting documents before the minister and the Public Service Commission grant approval, then why should it be treated differently in the case of the person who will chair the body that runs our elections?

No truth without facts

The principle AR invoked is simple and unanswerable: there is no truth without facts.

How can Parliament test the credibility of information in a CV? How can it verify compliance with the 5-year term rule in the Electoral Act? How can it satisfy itself that the process was fair and not politically skewed?

A one-page letter asserts. It does not prove. To vote “yes” on assertion alone is to abandon Article 18 of the Constitution, which requires all administrative bodies to “act fairly and reasonably and comply with the requirements imposed upon them by law.”

When Parliament exercises “approval” under Article 94B(3), it is an administrative body. Acting fairly and reasonably means acting on evidence.

From majority rule to rule of law

It is not surprising that the Speaker and the Attorney-General defended the letter-only approach. The Speaker is a member of the ruling party.

The Attorney-General is a political appointee who performed under the pressure of the President. Their judgment in this matter is influenced by the need to defend party interest and to protect the executive.

But the political ground has shifted. For 30 years, the ruling party had a two-thirds majority. That was an era of command and impose. You did not need facts if you had numbers.

The 8th Parliament has no two-thirds. The new culture must be persuasion through law, not imposition through majority.

As the South African Constitutional Court held in EFF v Speaker, a parliamentary majority does not entitle a ruling party to suppress facts or law. The majority gives votes. It does not suspend the Constitution.

AR goes to court: Defending Article 18

After its demand for records was rejected and the approval went through, AR announced it would approach the High Court.

The basis is clear: administrative justice under Article 18, read with Article 25.

AR’s case will likely argue three things, namely:

1. Procedural unfairness. Parliament approved a constitutional office holder without the material facts the Electoral Act contemplates. That is not “fair and reasonable” action.

2. Irrationality. No reasonable Parliament could be “satisfied” that legal requirements were met without seeing the Selection Committee report and CVs.

3. Undermining constitutional design. Article 94B(2) demands an independent and transparent ECN. A secretive appointment process undermines that from day one.

This is exactly the kind of check the courts exist for. If the High Court agrees, it can set aside the approval and order Parliament to reconsider, this time with the records on the table.

Why this matters beyond the ECN

This case is not about one appointment. It sets the template for all future Chapter 9 and Chapter 10B appointments: Judges, Auditor-General, Prosecutor-General, and ECN Commissioners.

If “approval” can be granted on a letter, then any President can bypass the Selection Committee entirely. Parliament becomes ceremonial. Public trust erodes.

To prevent this, the Electoral Act should be amended to expressly require that with every ECN nomination, Parliament must be furnished with the Committee report, score sheets, CVs, and declarations.

This does not usurp the Committee or the President. It enables Parliament to do what the Constitution asks of it.

Conclusion

AR’s decision to first demand records, and then to approach the court in defence of administrative justice, is the correct response in the new parliamentary era.

Parliament is not a post office. It is a check-and-balance. Checks require files. Balances require facts.

In the 8th Parliament, numbers may still decide the vote. But going forward, only facts can justify it.

And justification, not just majority, is what gives democracy its legitimacy.