Testing Public Opinion With a Referendum

What It Can and Can’t Do

Following the supreme Court judgement on recognition of foreign same-sex marriages for immigration purposes, some have called for a referendum on this issue. So let’s look at what Namibia’s Constitution and the Electoral Act say about referenda. (In case you are wondering, “referendum” was originally a Latin word, so the plura is “referenda” instead of “referendums”.)

What is a referendum?

It is a way of consulting the people to find out what they feel about an issue.

It is like an election, except that the voters choose an opinion rather than a political party.

For example, voters might be asked a question such as “should the size of parliament be decreased?” Then each voter would make a mark next to “yes” or “no”.

What does the Constitution say about referenda?

In general, the National Assembly has the power to hold a referendum on questions of “national concern” (Article 63(2)).  

Referenda can play a role in the process for amending the Constitution. Because a constitution is a country’s supreme law, there are usually special rules about how it can be changed.

It is typically more difficult to amend a constitution than to amend any other law, because most democracies want their governments to be stable, with a basic structure that remains in place over time.

In Namibia, there are two ways to amend the Constitution: (1) by agreement of two-thirds of the members of the National Assembly and two-thirds of the members of the National Council, or (2)  by agreement of two-thirds of the members of the National Assembly and two-thirds of the people who vote in a national referendum.

Invoking the second procedure requires that a bill containing a proposed constitutional amendment must have gone before the National Council and failed to secure a two-thirds majority.

In such a case, the president may issue a proclamation calling for a national referendum on the bill. If the bill is approved by a two-thirds majority of all voters who take part, the president must assent to the bill and the Constitution being amended (Article 132).

But, there is one crucial exception. The fundamental rights and freedoms in the Constitution are “entrenched”.

Article 131 says it is not permissible to repeal or amend any of these rights or freedoms in any way that would diminish or detract from them – this applies regardless of what majority of the public supports such an amendment in a national referendum.
So rights like equality and dignity cannot be weakened.

The only way to reduce those rights would be to abandon Namibia’s entire constitutional framework and start all over with the task of deciding on what values and systems will govern the nation.

This would be a very destabilising step that would have far-reaching social and economic consequences for Namibia.

Is there any other role for a referendum?

The Electoral Act provides for referenda in three situations: (1) as discussed, if a bill proposing a constitutional amendment secures a two-thirds majority in the National Assembly but not in the National Council; (2) if the National Assembly passes a resolution exercising its constitutional power to initiate a referendum on a matter of national concern; and (3) if the president considers it in the public interest to get the opinion of voters on something other than a constitutional amendment.

This could be a proposal to repeal or amend an existing law other than the Constitution, a suggestion for a new law, or any other matter the president determines.

In any of these situations, the president will issue a proclamation that sets out the referendum questions – which must have only “yes” or “no” answers.

The proclamation must say whether the referendum will be held throughout Namibia or just in a specified part of the country and who will be eligible to vote – although this must include registered voters.

The Constitution says referenda will be supervised and managed by the Electoral Commission of Namibia, “acting in accordance with the Constitution” (Article 94b(1)).

Have there been other calls for a referendum in Namibia?

Yes. In 2005 and again in 2010, in the wake of some horrendous incidents of gender-based violence, there were widespread calls for a referendum on bringing back the death penalty.

No such referendum was seriously considered, however, because the prohibition of the death penalty is part of the fundamental rights and freedoms in the Namibian Constitution that are entrenched.

Has a referendum ever been held in Namibia?

No.

So could a referendum overrule the Supreme Court judgement on recognising foreign same-sex marriages?  

No. The Constitution specifically gives the Supreme Court the task of interpreting the Constitution and the fundamental rights and freedoms it guarantees.

The court’s decision was based on the entrenched constitutional rights of equality and dignity that cannot be weakened – no matter what public opinion says.

This entrenchment is a positive element of the Constitution because constitutional rights are particularly important when it comes to protecting unpopular minorities, precisely because such minorities are often insufficiently protected by majority opinion.

This could be members of a small ethnic group, a political party with minimal support, or a fringe religion – to cite a few examples.
We all cherish our own constitutional rights, but this means we must respect the constitutional rights of others, even when we do not necessarily agree.

If one constitutional right is insecure, how can any of us count on any of our fundamental rights?

Abandoning our current system would be to the peril of us all.

• *Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.