A full bench of Namibia’s high court has found certain of the country’s Covid-19 regulations unconstitutional and invalid. These include regulations aimed at preventing employers from dismissing staff or from forcing them to take leave during the pandemic. The decision made clear to the Namibian authorities that, even during an emergency situation like the present, the constitution must be respected. It also stressed that in a case such as this, the President is expected to sign an affidavit on his reasons for regulations: ‘reverence’ for his office cannot be an excuse not to do so.
The wide-reaching application was brought to the Namibian high court by seven employers or employer organisations. They lined up 11 respondents ranging from the President of Namibia and some of his top cabinet ministers through to the country’s union bosses.
Their complaint was that some of the regulations, promulgated to manage the emergency caused by Covid-19, were unconstitutional and invalid. In particular, the took aim at the regulations strictly controlling action that employers might want to take against employees during restrictions aimed at preventing the spread of the pandemic.
Responding to the health crisis, Namibia’s President issued various sets of regulations. However, he did not respond to the court action challenging these regulations by providing an affidavit, signed by himself, in which he explained the reasons for these regulations.
This failure was dealt with in detail by the three judges of the court. They noted that the application called into question the President’s exercise of his powers. However, he did not file any answering affidavit, or even a confirmatory affidavit, explaining his thinking and the issues and information he took into account in issuing the disputed regulations.
Instead, any explanations were provided by the Minister of Labour and the Attorney-General. Absent a confirmatory affidavit by the President, however, all the explanations given on his behalf by these two officials were hearsay evidence and thus inadmissible, said the judges.
When they raised the problem with the parties in court, counsel took the position that it was not necessary for the President of have signed an affidavit at all. ‘This precariously leaves the court in a position afflicted by a cloud of darkness’ as to what the country’s leader took into account when exercising ‘the formidable powers’ given him by the constitution.
There seemed to be ‘reluctance in some quarters’ about having the head of state depose to an affidavit, the judges observed. It might have been ‘regarded as taboo by the President’s advisors’. Many people may ‘have sensitivity’ about the President being called on to depose an affidavit in a matter before court.
But whatever sensibilities might have been operating, the court had to consider the ‘gravity and invasiveness’ of the powers given the President by the constitution. The powers were ‘enormous’ and even allowed the suspension of some fundamental constitutional rights.
Where citizens were concerned that these enormous powers had not been properly exercised, it was ‘appropriate’ that the President should inform the parties and the court the considerations taken into account in making decisions. The factors that the Minister and the AG might believe were taken into account were irrelevant and hearsay. There was a need for the President to ‘explain, justify and rationalise his decisions.’ ‘Revered’ as his office is, he was required by law to do so himself.
The court concluded that the President was not well advised on the question, even if it was understandably given in good faith and out of ‘reverence to his office.’
The President had a duty to inform the court of the reasons for the disputed measures – but the court had been given none and had to consider the regulations ‘from an agnostic position, totally devoid of what the President may have had in mind’.
On the substance of their dispute, the applicants said the constitution only allowed the President to suspend a common law rule, a statute or fundamental rights ‘for the purpose of dealing with the situation’ that gave rise to an emergency.
Though all the regulations must thus be aimed at ‘containing the spread of the Coronavirus’, those related to whether employees should be dismissed or not did not help contain the pandemic.
The government and labour unions responded that the President’s interference was praiseworthy, protecting the right of employees given the fact that widespread dismissals ‘could lead to starvation or public disorder’.
The court said the Constitution allowed the President to make regulations suspending any law or freedom where they were ‘reasonably justifiable for the purpose of dealing with the situation which has given rise to the … emergency’. If he made any regulations which did not ‘deal with the situation’ the President would be acting outside his powers.
In the view of the employers, he had gone beyond his powers by making regulations about terms and conditions of employment.
Laudable as the President’s intention may have been, the court found, these regulations could not be said to be justified ‘for the purpose of dealing with’ the outbreak of Covid-19, and they were thus beyond his powers.
Not just that. He had also impermissibly delegated his power in relation to several of the regulations. ‘Wanton’ delegation to others would risk ‘substituting institutionally and democratically illegitimate actors’ for those constitutionally mandated for the task, and the courts thus interpreted delegatory powers restrictively.
On these grounds the court also struck down several other of the Covid-19 regulations.
Although it was not asked to deal with the issue, the court flagged the constitutional requirement that an emergency needed to be approved by a two third majority of the National Assembly within 30 days of declaration, adding that the judges did not know whether this ‘mandatory provision’ had been followed and that it was not an issue they needed to decide.