PAUL T. SHIPALE (with inputs by Folito Nghitongovali Diawara Gaspar)
Abstract
Former Leader of the Official Opposition of The Popular Democratic Movement’s (PDM), McHenry Venaani, on Wednesday submitted a series of questions to Prime Minister Dr. Elijah Ngurare, calling for cost cutting measures by repurposing state offices for former presidents instead of building or renting new ones.
Venaani Proposed that the Office previously used by the late Founding President and Father of the Namibian Nation, H.E Dr. Sam Shafiishuna Nujoma, be allocated to accommodate living former Heads of State such as Hifikepunye Pohamba and Nangolo Mbumba. “Can the government repurpose the offices of the late former Presidents to accommodate the remaining former Presidents, thereby minimising costs associated with office space?” questioned Venaani.
Indeed, according to the Former Presidents’ Pension and Other Benefits Act, 2004 SCHEDULE (section 2(1)(c)), sub paragraphs 1, 2 and 3 Former Presidents are entitled to administrative staff members and security personnel as well as office accommodation and a furnished official residence at any place in Windhoek or any other place of their choice.
Venaani questioned whether the government plans to revisit policies on such infrastructure in light of current economic challenges and is seeking clarification on whether it remains government policy to construct separate offices for every former president and whether this model is sustainable. “The passing of two revered former heads of state raises practical questions about the continued utility and future management of their state-provided office infrastructure,” said Venaani.
He also requested a detailed breakdown of the annual expenditure on the offices of former presidents, including staff salaries, utilities, security, and maintenance costs and wanted to know if any cost-benefit analysis has been done on the possible construction of an office for Mbumba and whether the government plans to amend the Former Presidents’ Pension and Other Benefits Act to reflect current economic realities.
INTRODUCTION
It seems there is a new trend in post-colonial Namibia which inspires and propels the publishing of political analyses and legal interpretations by scholars, politicians, public servants and legal practitioners. Indeed, currently in vogue is the re-examination of the legal and institutional framework governing the title of Founding Father of the Namibian Nation and presidential benefits, which falls in the category of recent writings that are meant to clarify the distinctions between two crucial legislative instruments: Act 16 of 2005 and Act 18 of 2004.
Connected to this discourse are the implicit narratives of the controversial proposals to extend the title of Founding Father to other former presidents, whether for reasons of political appeasement or economic convenience. It seems these proposals continue to have currency in ‘oppositional narrative’ as all of a sudden there is interest in reinterpreting specific legal recognitions that could be modified to accommodate momentary political conveniences. The question is; is this assessment accurate or this is just another attempt at subverting the explicit text of the law and its fundamental legislative intent? Given that the confusion between these two distinct legal instruments has led to problematic proposals that not only contradict the original legislative intent but also threaten to dilute the historical significance of the Founding Father title and potentially overburden State resources, once again, we beg the indulgence of the readers to allow us, on one hand, to analyse the legal foundation of the Founding Father title, and on the other hand, to look at the gaps and ambiguities in Act 18 of 2004, which establishes benefits for former Presidents.
This article presents a comprehensive analysis of the legal and institutional framework governing the title of Founding Father of the Namibian Nation and presidential benefits in Namibia. It is structured to address these issues systematically, beginning with a clarification of the legal foundation of the Founding Father title, followed by an analysis of the need for institutional recognition of this title. Subsequently, it critically examines proposals for reassignment of the title, analyzes post-presidency benefits under Act 18 of 2004, and addresses issues of fiscal equity, legal status of spouses, institutional closure processes, and gaps in succession protocols.
Act 16 of 2005: The Solemn Recognition of Dr. Sam Nujoma
Act 16 of 2005 represents a significant milestone in Namibia’s constitutional history, explicitly conferring the title of Founding Father of the Namibian Nation to H.E. Dr. Sam Shafiishuna Nujoma. This recognition is not merely symbolic or honorary but constitutes a legal affirmation of the singular and irreplaceable role that Dr. Nujoma played in the struggle for liberation and the subsequent building of the Namibian nation. The specificity of this law is notable: it does not establish a generic category of “Founding Father” that could be attributed to various historical figures, but exclusively recognizes Dr. Nujoma as the holder of this unique title.
Significantly, Dr. Nujoma is posthumously portrayed as the Founding Father of the Namibian Nation “committed to justice, with a leadership and unwavering dedication to the welfare of his community and country.” His role is also portrayed as “a heroic, charismatic and a judicious figure” than he had ever been considered in his lifetime. The unique and non-transferable nature of this title is rooted not only in the text of the law but also in the historical context that underpins it. Dr. Nujoma led the struggle for Namibia’s independence for decades, serving as president of SWAPO (South West Africa People’s Organization) from its founding in 1960 until 2007. After independence in 1990, he became Namibia’s first democratically elected president, serving three consecutive terms until 2005. His leadership during this critical period of transition and democratic consolidation was instrumental in shaping the national identity and institutions of the Namibian state.
Act 16 of 2005 should be understood as an expression of the sovereign will of the Namibian people, manifested through their elected representatives. It is not an honor bestowed by executive decree or administrative decision, but a legislative recognition that reflects a national consensus on Dr. Nujoma’s unique historical role. This aspect is crucial for understanding why this title cannot be equated with or reassigned to other former presidents, regardless of their merits or contributions to the nation.
Legal Consequences of Misinterpretations
Any attempt to reinterpret Act 16 of 2005 to equate the title of Founding Father to the benefits accrued to other former presidents, as proposed by Hon. Venaani in relation to H.E. Hifikepunye Pohamba or H.E. Nangolo Mbumba, constitutes not only an incorrect reading of the law but also a potential subversion of its legislative intent. Such proposals, often presented under the pretext of economic convenience or political inclusion, ignore the fundamentally distinct nature of this legal recognition.
The title of Founding Father is not an administrative position that can be successively occupied by different individuals, nor an honor that can be distributed to appease political sensitivities. It is a historical and legal recognition of a unique role played in specific historical circumstances that cannot be replicated. Confusing this recognition with the material and institutional benefits provided in Act 18 of 2004 for all former Presidents represents a significant distortion of the legal framework. The consequences of such misinterpretations go beyond mere legal confusion. They threaten to dilute the historical significance of the Founding Father title, transforming it from a singular and meaningful recognition into a generic honor that can be bestowed upon any former president. This not only diminishes Dr. Nujoma’s specific legacy but also weakens the integrity of the legal system itself by suggesting that specific laws can be reinterpreted to serve momentary political or economic conveniences.
Furthermore, such interpretations would establish a dangerous precedent, suggesting that future governments could arbitrarily modify historically codified legacies. Namibia’s national identity must be anchored in historical and legal truths, not political expediencies. Act 16 of 2005 represents one such anchor, establishing a legal recognition that transcends political cycles and partisan preferences. It is important to note that respect for the singularity of the Founding Father title does not in any way diminish the contributions of other Namibian leaders. On the contrary, it recognizes the historical specificity of Dr. Nujoma’s role, allowing other leaders to be honored for their own unique merits and contributions, without the need to dilute or reinterpret existing legal recognitions.
Current Institutional Framework (or Lack Thereof)
The question is; despite the clarity and specificity of Act 16 of 2005 in conferring the title of Founding Father of the Namibian Nation to Dr. Sam Nujoma, where is the institutional mechanism to sustain and perpetuate this status, especially after his passing? This discrepancy raises a fundamental question: if the law formally recognizes Dr. Nujoma as Founding Father, where is the institutional mechanism to sustain and perpetuate this status, especially after his passing?
The absence of a clearly defined institutional framework for the Office of the Founding Father represents a missed opportunity for the systematic preservation of Dr. Nujoma’s legacy and for educating future generations about his role in shaping the Namibian nation. It is unclear whether an Office of the Founding Father was ever established with specific mandate, structure, and resources, distinct from the general benefits granted to former Presidents under Act 18 of 2004. If such an office existed, its current status after Dr. Nujoma’s passing remains ambiguous, creating uncertainty about the institutional continuity of this historical recognition.
Moreover, the question arises whether Dr. Nujoma’s official residence or office should be declared National Heritage Sites, thus providing a permanent physical space for commemoration and education about his legacy. This question becomes even more pertinent when we consider that other national heroes, such as Chief Hosea Kutako, have received such recognition, despite not possessing the unique constitutional status of Founding Father.
Comparative Analysis: National Heroes vs. Founding Father
To fully understand the need for a distinct institutional recognition for the Founding Father, it is important to establish a comparison with the treatment of other national heroes in Namibia. Chief Hosea Kutako, for example, is rightly recognized as a significant historical figure in Namibia’s struggle for independence, and sites associated with his life and work have been preserved as part of the national heritage. However, Chief Kutako is one among several national heroes, each with important contributions, but none with the unique constitutional status conferred to Dr. Nujoma by Act 16 of 2005.
This distinction is not merely semantic but reflects a fundamental difference in legal and historical recognition. While national heroes are honored for their specific contributions to various aspects of the liberation struggle and nation-building, the title of Founding Father recognizes a comprehensive and foundational role in the very creation and formation of the Namibian state. This distinction should, logically, be reflected in a correspondingly distinct institutional framework for the preservation and commemoration of the Founding Father’s legacy.The absence of such a differentiated institutional framework risks diminishing Dr. Nujoma’s legacy in the national memory, reducing him to just another among many national heroes, rather than maintaining his unique constitutional status as Founding Father. This dilution not only contradicts the intent of Act 16 of 2005 but also impoverishes the public understanding of Namibian history and the distinct roles played by different historical figures.
Critical Analysis of Title Reassignment Proposals
Venaani’s proposals are presented under two main pretexts: political appeasement, aiming to recognize the contributions of other leaders, and economic convenience, avoiding the costs associated with creating new presidential offices. However, careful analysis reveals the fundamental flaws in these arguments.
The title of Founding Father, as established by Act 16 of 2005, is not an administrative or honorary designation that can be discretionarily assigned. It is a historical and legal recognition of a unique role played in specific and unrepeatable historical circumstances. Dr. Nujoma earned this title not by appointment but through his historical role in the struggle for independence and the formation of the Namibian nation. This recognition was subsequently codified in law through a democratic process that reflects the sovereign will of the Namibian people. Act 16 of 2005 is clear and specific in its intent: to exclusively recognize Dr. Nujoma as Founding Father. Any attempt to reinterpret the law to include other former presidents not only contradicts the explicit text of the law but also subverts its fundamental legislative intent.
Furthermore, the argument of economic convenience reveals a problematic confusion between two distinct legal instruments: Act 16 of 2005, which confers the status of Founding Father of the Namibian Nation to H.E. Dr Sam Shafiishuna Nujoma, and Act 18 of 2004, which establishes benefits for former Presidents. Issues related to the costs of maintaining offices for former Presidents should be addressed in the context of Act 18 of 2004, not through the dilution of the historical and legal significance of the Founding Father title.
It is important to note that respect for the singularity of the Founding Father title does not in any way diminish the contributions of other Namibian leaders. On the contrary, it allows these leaders to be honored for their own unique merits and contributions, without the need to dilute or reinterpret existing legal recognitions. Namibia has many national heroes, each deserving appropriate recognition, but only one Founding Father, as recognized by Act 16 of 2005.
Analysis of Post-Presidency Benefits under Act 18 of 2004
Indeed, in what is termed ‘a comprehensive analysis’ of Act 18 of 2004, which establishes the legal framework for allocating benefits to former Presidents of the Republic of Namibia, it is important to clearly distinguish this legislation from Act 16 of 2005, as while the latter confers the unique title of Founding Father to Dr. Nujoma, Act 18 of 2004 regulates the material and institutional benefits granted to all former Presidents, regardless of their specific historical status.
The main provisions of Act 18 of 2004 include the allocation of official residences, pensions, personal security, and administrative support to former Presidents, including an ‘office accomodation’. These benefits are designed to ensure that those who served in the highest office of the nation can maintain an appropriate level of dignity and lifestyle after the end of their term, and can continue to contribute to public life without undue financial or logistical concerns.
However, it is crucial to note that Act 18 of 2004 does not explicitly establish an obligation to build or maintain separate offices for all former Presidents. This distinction is important in the context of the current debate about the costs associated with maintaining multiple presidential offices, especially in times of economic hardship. The absence of an explicit provision for separate offices suggests that the legislative intent may have been to provide administrative support in a more flexible and potentially more cost-efficient manner.
Fiscal and Policy Questions
The implementation of Act 18 of 2004 raises several significant fiscal and policy questions that merit careful analysis. The first and most pressing is whether the State should fund separate offices for multiple former Presidents during periods of economic hardship. This question is not merely theoretical but has immediate practical implications for the allocation of limited public resources.
The law, in its current form, does not differentiate between former Presidents based on the duration of their term or the circumstances of their succession. This creates a potentially inequitable situation where a President who served two full terms (10 years) would receive the same benefits as one who served only one year to complete the term of a deceased President. This lack of differentiation not only raises questions of equity but may also lead to inefficient use of public resources. Furthermore, the law does not establish clear limits for the costs associated with these benefits, nor mechanisms for their periodic review in light of prevailing economic conditions. This omission may lead to uncontrolled expansion of costs over time, especially as the number of former Presidents increases.
Finally, the law is silent on the protocols to follow when a President dies in office, leaving uncertain whether an interim or acting President who completes the term without a direct electoral mandate should receive full presidential benefits. These gaps in current legislation are not merely technical but have substantive implications for democratic governance, fiscal responsibility, and equity in the distribution of public resources. Addressing these gaps through carefully considered legislative amendments would be an important step toward strengthening Namibia’s institutional framework and ensuring that presidential benefits are administered in a fair, transparent, and fiscally responsible manner.
CONCLUSION AND RECOMMENDATIONS
Summary of Key Findings
The comprehensive analysis of the legal and institutional framework governing the title of Founding Father of the Namibian Nation and presidential benefits in Namibia has revealed several significant findings that deserve attention from both legislators and the general public.
First, Act 16 of 2005 clearly establishes the title of Founding Father as a unique and non-transferable recognition conferred exclusively to Dr. Sam Shafiishuna Nujoma by virtue of his singular role in the struggle for independence and the formation of the Namibian nation. This recognition is not an administrative or honorary designation that could be extended to other former presidents, but a codified legal status that reflects a specific historical reality and the sovereign will of the Namibian people expressed through their elected representatives.
Second, there is a significant gap regarding the institutionalization of this recognition. Despite the clarity of Act 16 of 2005, an adequate institutional framework has not been established to preserve and honor the legacy of the Founding Father, particularly after his passing. This absence contrasts with the treatment of other national heroes, such as Chief Hosea Kutako, whose associated site has been constructed and preserved as part of the national heritage.
Third, proposals to equate the Status of Founding Father with benefits accrued to other former presidents, whether for reasons of political appeasement or economic convenience, contradict not only the explicit text of Act 16 of 2005 but also its fundamental legislative intent. Such proposals, if accepted, would establish a dangerous precedent where specific legal recognitions could be reinterpreted or modified to accommodate momentary political conveniences.
Fourth, Act 18 of 2004, which establishes benefits for former Presidents, contains several gaps and ambiguities that require legislative attention. The law does not differentiate between former Presidents based on the duration of their term or the circumstances of their succession, does not establish clear limits for the costs associated with these benefits, and does not adequately address issues such as benefits for spouses and protocols in case of death in office.
Fifth, the lack of a proportional benefits system raises significant questions of equity and fiscal responsibility, particularly in times of economic hardship. The allocation of substantial resources for presidential benefits without consideration for the duration of service or contribution may seem disproportionate and unfair, especially when many citizens face financial challenges and the government is forced to make budget cuts in essential areas.
Sixth, the ambiguity in Act 18 of 2004 regarding spouses creates a risk of uncontrolled expansion of entitlements, where benefits initially designed for former Presidents are gradually extended to an ever-widening circle of family members and associates, without clear legal or democratic justification.
Seventh, there is no clear legal framework to guide the closure of official offices and the transition of state properties after the death of a former President, creating potential for ad hoc approaches, inefficiencies, and possible loss of historically valuable materials.
Finally, Act 18 of 2004 is notably silent on succession protocols and associated benefits when a President dies in office, leaving unanswered critical questions about the rights and benefits that should be granted in such circumstances, particularly for interim or acting Presidents who complete the term without a direct electoral mandate.
Recommended Actions
Based on these findings, several actions are recommended to strengthen Namibia’s legal and institutional framework:
- Legislative Review: Act 18 of 2004 should be amended to address the identified gaps and ambiguities, particularly regarding:
- Establishment of a proportional scale of benefits based on the duration of service and the nature of the mandate.
- Clarification of the status and benefits for spouses of former Presidents.
- Development of clear protocols for succession in case of death in office.
- Establishment of fiscal limits and transparency requirements for presidential benefits.
- Legacy Preservation: Measures should be taken to adequately institutionalize the recognition of Dr. Nujoma as Founding Father, including:
- Declaration of his official residence and/or office as a National Heritage Site dedicated to preserving documents and artifacts related to his role in Namibian history.
- Development of educational programs to ensure that future generations understand the historical significance of this recognition.
- Transition Framework: A clear legal framework should be developed to guide the closure of official offices and the transition of state properties after the death of a former President, including:
- Specific timelines and procedures for staff management.
- Protocols for the preservation of documents and archives.
- Coordination mechanisms between state authorities and the Master of the High Court.
Final Considerations
By addressing the gaps and ambiguities identified in this analysis, Namibia has the opportunity to strengthen its institutional framework, promote greater public confidence in its democratic institutions, and ensure that the recognition of its historical leaders is done in a manner that respects both historical truth and contemporary economic realities. The legacy of Dr. Nujoma as Founding Father of the Namibian Nation is a national treasure that deserves to be preserved and honored appropriately. At the same time, the management of benefits for former Presidents should be guided by principles of equity, transparency, and fiscal responsibility. Finding the right balance between these imperatives is a challenge that requires careful deliberation and commitment to the fundamental democratic values that underpin the Namibian nation.
As we reflect on the wisdom of “Kafo kape wu lelema nakafo kakulu osho a li,” we are reminded that honoring our past need not come at the expense of responsible governance in the present. Just as the small bone remembers its origins, so too must our institutions preserve historical legacies while adapting to current realities. This balance between honor and accountability forms the cornerstone of a mature democracy that respects both its history and its future. Disclaimer: The opinions expressed here do not necessarily reflect those of our employers and this newspaper but solely our personal views as citizens and Pan-Africanists.
References
Legislative Documents
Republic of Namibia. (2005). Conferment of Status of Founding Father of the Namibian Nation Act, 2005 (Act 16 of 2005). Government Gazette of the Republic of Namibia. Retrieved from https://namiblii.org/akn/na/act/2005/16/eng@2005-12-29
Republic of Namibia. (2004). Former Presidents’ Pension and Other Benefits Act, 2004 (Act 18 of 2004). Government Gazette of the Republic of Namibia. Retrieved from https://namiblii.org/akn/na/act/2004/18/eng@2004-12-18
Republic of Namibia. (2012). Former Presidents’ Pension and Other Benefits Amendment Act, 2012 (Act 14 of 2012). Government Gazette of the Republic of Namibia. Retrieved from https://namiblii.org/akn/na/act/2012/14/eng@2012-12-21
Republic of Namibia. (1990, rev. 2010). The Constitution of the Republic of Namibia. Retrieved from https://www.constituteproject.org/constitution/Namibia_2010
Government Publications and Official Documents
Legal Assistance Centre. (2024). NAMLEX: Index to the Laws of Namibia – President. Retrieved from http://www.lac.org.na/namlex/President.pdf
Public Office-Bearers Commission. (2017). Announcement of Remuneration and Benefits of public office-bearers, President, Vice President and Former Presidents. Retrieved from
Master of the High Court, Republic of Namibia. (n.d.). Deceased Estates. Ministry of Justice. Retrieved from https://mohc.moj.na/a/download/deceasEstate.html
Academic and Legal Analysis
Legal Assistance Centre. (2004). Annotated Statutes: Former Presidents’ Pension and Other Benefits Act 18 of 2004. Retrieved from https://www.lac.org.na/laws/annoSTAT/Former%20Presidents’%20Pension%20and%20Other%20Benefits%20Act%2018%20of%202004.pdf
LEX Africa. (2022). Insolvency Guide 2022 – Namibia. Retrieved from https://lexafrica.com/wp-content/uploads/2022/09/Insolvency-Guide-2022-Namibia.pdf
Case Law and Legal Precedents
Graham v Master of High Court (HC-MD-CIV-MOT-REV 415 of 2020). (2020). Namibia High Court Main Division. Retrieved from https://namiblii.org/akn/na/judgment/nahcmd/2020/547/eng@2020-11-27
Kamuhanga N.O v Master of the High Court and Others (SA 44/2013). (2015). Supreme Court of Namibia. Retrieved from https://www.saflii.org/na/cases/NASC/2015/28.html
Institutional Websites
Sam Nujoma Foundation. (2024). Biography. Retrieved from https://samnujomafoundation.org/index.php/biography/ Bank Windhoek. (n.d.). Estate Administration Process. Retrieved fromhttps://www.bankwindhoek.com.na/Documents/EstateAdministrationProcess.pdf
