Acting or substantive president?
Nation gripped by emotive debate
Should Mbumba have appointed a vice-president while he did not resign from that position? On which law did he rely to vacate the VP position?
High-level legal consultations are taking place in government to determine whether mistakes and misinterpretations occurred with the swearing-in of Nangolo Mbumba as Namibia's president or if he should have remained substantive vice-president and acting head of state.
Mbumba was sworn in as substantive president on 4 February, hours after the death of president Hage Geingob was announced. The swearing-in took place after Mbumba chaired an emergency Cabinet meeting that Sunday.
Despite the smooth transition, questions have arisen over the past week regarding whether Mbumba should be considered a substantive fourth president of Namibia or whether he is merely acting in that position.
Opinions are divided, with some questioning whether vice-president Mbumba’s ascendance to substantive president was correctly done.
Among those who believe Mbumba is acting president, many do not suspect malice and attribute the situation to an honest mistake by presiding officers.
Sworn in
He was sworn in by Chief Justice Peter Shivute.
Mbumba promptly appointed Netumbo Nandi-Ndaitwah as vice-president, but this act has been questioned because there is no legal provision allowing Mbumba to vacate the position of vice-president.
Although Shivute relied on several provisions of law to swear in Mbumba as president, a key one was Article 34 of the Namibian Constitution, which states that if the office of president becomes vacant or if the president is otherwise unable to fulfil the duties of office, the vice-president, prime minister or deputy prime minister must “act” as president for the unexpired portion of the president’s term of office.
Interpretation of law
Those who support Mbumba's position as substantive president have dismissed the term 'act' as merely semantic, arguing that it refers to 'serving' as substantive president.
They have also defended Mbumba’s swearing-in, saying it was important for him to affirm to uphold the constitution during his time in office.
Because the presidential election is within 12 months of his ascendance to that position, Mbumba is allowed, by law, to lead the country until a new president is elected.
Although elections are slated for November, Mbumba is expected to serve until March 2025, usually the time the new president-elect is sworn in.
Among those who believe Mbumba is lawfully the substantive president are Kadhila Amoomo Legal Practitioners, which said last week that his functions are equal to those of any substantive head of state.
“In any event, the act of administering the oath by the chief justice has legal implications that have not been impugned by anyone through a judicial process. The swearing-in is therefore extant and undisturbed,” the firm said.
Another legal mind, Yarukeekuro Ndorokaze, commented: “In my view, ‘act as president’ in this context is similar to ‘serve as president’ or ‘work as president’ or ‘perform as president'. Consequently, this provision envisages a substantive president, and why not, seeing that the vacancy has been filled,” he commented on social media.
With immediate effect
However, according to political scientist Rui Tyitende, an acting president assumes office automatically, except in the case of the president-elect not being able to assume office prior to taking the oath.
He also pointed out that Mbumba was wrong to appoint someone in his substantive position, that of vice-president, since there was no vacancy for that position. In his view, Mbumba is an interim president and full-time vice-president.
Mbumba had not resigned as vice-president of the country and analysts said he should thus not have appointed Nandi-Ndaitwah in that position.
Tyitende said: “Mbumba is the acting president as of the moment he assumed the role prior to the death of president Geingob. He simultaneously continues to act [as head of state and vice-president]. All they needed to do was to announce what the constitution has already put into effect.”
Caring for the nation
John Nakuta, a social academic who works for the law faculty at the University of Namibia, argues Mbumba should be regarded as the substantive president rather than merely an acting one.
According to him, the term 'acting' may not fully capture the essence of Mbumba's role, and that 'caretaker' could be one of the terms used instead.
“Language, itself, is only one factor to be weighed in evaluating constitutional decisions, and these decisions cannot be understood unless considered in relation to the values subscribed to when interpreting the Constitution. That being said, the grammatical meaning of the word ‘act’ as used in Article 34(1) should not be misconstrued. The word ‘act’ as used in this context could, in my view, easily be replaced with words such as ‘serve’, ‘perform’, without changing the substantive meaning of this provision,” he told Namibian Sun.
“In my opinion, therefore, Dr Nangolo Mbumba is the substantive president of the Republic of Namibia and not an acting president. Perhaps he could be referred to as a caretaker or interim president. An interim president is considered the president with full powers until a person is elected to the post,” said Nakuta.
McHenry Venaani, leader of the opposition in parliament, shared Nakuta’s view but argued that Mbumba should step aside immediately after the new president is elected in November.
“In my view, Mbumba should only stay in office until the new president is elected. If he stays until 21 March 2025, then he will be an unconstitutional president,” he said.
The Office of the Judiciary did not respond to questions regarding this matter.
[email protected]
Mbumba was sworn in as substantive president on 4 February, hours after the death of president Hage Geingob was announced. The swearing-in took place after Mbumba chaired an emergency Cabinet meeting that Sunday.
Despite the smooth transition, questions have arisen over the past week regarding whether Mbumba should be considered a substantive fourth president of Namibia or whether he is merely acting in that position.
Opinions are divided, with some questioning whether vice-president Mbumba’s ascendance to substantive president was correctly done.
Among those who believe Mbumba is acting president, many do not suspect malice and attribute the situation to an honest mistake by presiding officers.
Sworn in
He was sworn in by Chief Justice Peter Shivute.
Mbumba promptly appointed Netumbo Nandi-Ndaitwah as vice-president, but this act has been questioned because there is no legal provision allowing Mbumba to vacate the position of vice-president.
Although Shivute relied on several provisions of law to swear in Mbumba as president, a key one was Article 34 of the Namibian Constitution, which states that if the office of president becomes vacant or if the president is otherwise unable to fulfil the duties of office, the vice-president, prime minister or deputy prime minister must “act” as president for the unexpired portion of the president’s term of office.
Interpretation of law
Those who support Mbumba's position as substantive president have dismissed the term 'act' as merely semantic, arguing that it refers to 'serving' as substantive president.
They have also defended Mbumba’s swearing-in, saying it was important for him to affirm to uphold the constitution during his time in office.
Because the presidential election is within 12 months of his ascendance to that position, Mbumba is allowed, by law, to lead the country until a new president is elected.
Although elections are slated for November, Mbumba is expected to serve until March 2025, usually the time the new president-elect is sworn in.
Among those who believe Mbumba is lawfully the substantive president are Kadhila Amoomo Legal Practitioners, which said last week that his functions are equal to those of any substantive head of state.
“In any event, the act of administering the oath by the chief justice has legal implications that have not been impugned by anyone through a judicial process. The swearing-in is therefore extant and undisturbed,” the firm said.
Another legal mind, Yarukeekuro Ndorokaze, commented: “In my view, ‘act as president’ in this context is similar to ‘serve as president’ or ‘work as president’ or ‘perform as president'. Consequently, this provision envisages a substantive president, and why not, seeing that the vacancy has been filled,” he commented on social media.
With immediate effect
However, according to political scientist Rui Tyitende, an acting president assumes office automatically, except in the case of the president-elect not being able to assume office prior to taking the oath.
He also pointed out that Mbumba was wrong to appoint someone in his substantive position, that of vice-president, since there was no vacancy for that position. In his view, Mbumba is an interim president and full-time vice-president.
Mbumba had not resigned as vice-president of the country and analysts said he should thus not have appointed Nandi-Ndaitwah in that position.
Tyitende said: “Mbumba is the acting president as of the moment he assumed the role prior to the death of president Geingob. He simultaneously continues to act [as head of state and vice-president]. All they needed to do was to announce what the constitution has already put into effect.”
Caring for the nation
John Nakuta, a social academic who works for the law faculty at the University of Namibia, argues Mbumba should be regarded as the substantive president rather than merely an acting one.
According to him, the term 'acting' may not fully capture the essence of Mbumba's role, and that 'caretaker' could be one of the terms used instead.
“Language, itself, is only one factor to be weighed in evaluating constitutional decisions, and these decisions cannot be understood unless considered in relation to the values subscribed to when interpreting the Constitution. That being said, the grammatical meaning of the word ‘act’ as used in Article 34(1) should not be misconstrued. The word ‘act’ as used in this context could, in my view, easily be replaced with words such as ‘serve’, ‘perform’, without changing the substantive meaning of this provision,” he told Namibian Sun.
“In my opinion, therefore, Dr Nangolo Mbumba is the substantive president of the Republic of Namibia and not an acting president. Perhaps he could be referred to as a caretaker or interim president. An interim president is considered the president with full powers until a person is elected to the post,” said Nakuta.
McHenry Venaani, leader of the opposition in parliament, shared Nakuta’s view but argued that Mbumba should step aside immediately after the new president is elected in November.
“In my view, Mbumba should only stay in office until the new president is elected. If he stays until 21 March 2025, then he will be an unconstitutional president,” he said.
The Office of the Judiciary did not respond to questions regarding this matter.
[email protected]
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