Paul Shipale
President Paul Kagame was recently re-elected as Rwanda’s President, and inaugurated on Sunday, 11 August 2024, in a grand ceremony marked by pomp and color at the fully packed Amahoro Stadium held in the capital, Kigali.
What triggered my interest and curiosity here was when President Kagame took the Oath of Office and signed the certificate of inauguration, followed by when he was given the instruments of power or the National Symbols which are; a Constitution, a National Flag and National Coat of Arms.
The oath was administered by Chief Justice Faustin Ntezilyayo at an inauguration ceremony attended by thousands of Rwandans, as well as heads of state and government from 24 African countries, including Heads of International and Regional Organizations, along with dozens of senior government officials from across Africa. The administration of the Oath of Office was followed by a 21-Gun Salute, the National Anthem, the Fly-past by Helicopters and a Military Parade. The 66-year-old leader, who has been at the helm since the aftermath of the Rwandan genocide in 1994, took the Oath of Office, pledging his unwavering loyalty to the Republic of Rwanda.
My interest here is all about the interplay between the Martial law and the Civil law or the doctrine of the concurrent systems which converge in the Presidency as the Head of State and Government.
The Namibian Constitution stipulates in Article 27 that the President shall be the Head of State and of the Government and the Commander-in-Chief of the Defence Force. Article 1 stipulates that (1) The Republic of Namibia is hereby established as a sovereign, secular, democratic and unitary State founded upon the principles of democracy, the rule of law and justice for all. (2) All power shall vest in the people of Namibia who shall exercise their sovereignty through the democratic institutions of the State. Article 2 talks about the National Symbols which are (1) a National Flag; (2) a National Coat of Arms, a National Anthem and a National Seal which shall be in the custody of the President.
Indeed, in any civilized country, there are two systems of law that run concurrently. One of these two systems is very pronounced and the other one is silent. The challenge is that we usually think that the pronounced system is supreme over that which is silent but in actual fact, it is the silent system that is always supreme over that which is pronounced. There is a reason when someone ascend to the highest Office in the land, namely the Presidency, that person becomes the Commander-in-Chief of the Armed Forces because the Presidency is a point of convergence between the two concurrent systems of law, which are, the Martial Law and the Civil Law.
The Namibian Constitution stipulates in Article 27 that the President shall be the Head of State and of the Government and the Commander-in-Chief of the Defence Force. That is why the President’s Aide-de-Champ/Camp (ADC) is not a Police Officer but a Military Personnel with a rank of Colonel, which is sometimes referred to as the beginning of a political rank, while the Prime Minister’s, the Speaker and the Chief Justices’ bodyguards are Police Officers. This is because the President, as much as he/she looks like a civilian, he/she is actually not a civilian but a military person and immediately after taking the Oath of Office, he/she becomes the Commander-in-Chief of the Armed Forces.
It is against this background that when Retired Lt. General Martin Shalli said those who beg for the army to come and occupy the streets in order to fight criminals, that is not the duty of the army as they are only trained to shoot and kill and not to catch criminals or take them to court because their job is to defend the territorial integrity of the country, be it in the air, with the Air Wing, be it in the sea, with the Navy or on land, with the Army. For this reason, a President’s number one (1) duty, which is also contained in his/her Oath of Office, is to protect the Constitution.
In constitutional law, we say a constitution is not a legal document per se but a “civilian” or social document, more specifically like a social contract with legal consequences. That means a constitution is how a people have elected to govern themselves and to run and manage their affairs. Since they can all not run the government as sovereigns, they entrust that responsibility to one person through a social contract to run the affairs of the State on their behalf for a certain period. That is why we say, in constitutional law, sovereignty is only given temporally and can be taken back after a certain period by the sovereigns themselves.
Sovereignty in Namibia is understood from the liberalist concept and perspective which is shared by Jean Jack Rousseau (1712-1778), John Locke and Montesquieu with the central argument that sovereignty, as the popular general will of the people, is inalienable, indivisible, infallible, determined and limited in its power by the common interest.
This stems from what was observed by Jean Bodin (1529-1596) who believed in sovereignty as unconditional and unrestrained power. Bodin also thought of sovereignty as an absolute principle to have arisen around the Treaty of Westphalia (1648) which ended the Thirty Year’s War.
Bodin’s concept was followed by the Realists based on Thomas Hobbes ideas of the social contract theory in Leviathan (1651). Hobbes borrowed Bodin’s definition of sovereignty that it is absolute, untouchable, perpetual, exclusive, indivisible, inalienable, recognitive and comprehensive (Lake 2003, Kramer 1999, Hoffman and Graham 2006).
To come back to our train of thoughts on the interplay between the Martial law and the Civil law or the doctrine of the concurrent systems which converge in the Presidency, Government and State are not the same thing. During the National Events like the Independence Day and the Heroes Day there is a reason why it is the military which first takes centre stage with the Military Parade, Fly-past, including with Parachutes, the 21 Gun-Salute and the singing of the National Anthem. Once the military is done with the parade, then the civilians are allowed to continue with the cultural performances and speeches etc.
That interplay is constantly maintained and runs concurrently. For instance, when the Chief of the Namibian Defence Force, Lt. General or the Rear Admiral or Air Marshall want to come up with a rotational policy of the Brigadier Generals or the Camp Commanders, such policy cannot go through Parliament for oversight because it is not a Civil law that is applicable here but a Martial law.
The concurrent systems doctrine between the Martial law and Civil law is also at interplay when a government is dissolved, either under a military coup or when the Parliament is dissolved by the President. Here the interplay of Martial law takes precedence including when a person who successfully perpetrates a coup d’état becomes the embodiment of the constitution as the Civil law is suspended.
When someone is a called a dictator, it does not necessarily mean a ruthless person but an individual who has a law unto himself in that area of jurisdiction.
The reason why when a President is been inaugurated, in taking the Oath of Office, the President must exhibit the instruments of power or National symbols which are never civilians but always Martial. That is why the President becomes the Head of State and the Government as well as Commander-in-Chief of Armed Force. Here, the interplay of the State is coercive and cohesive.
The element of the State appears at two levels, with the domestic coercive element of the State which is usually mandated to the Police Force and the external element of the State which is mandated to the Armed Forces under Martial law. The government aspect of the concurrent system doctrine is the running of the day-to-day affairs of the government. Thus, a President is not illegitimate because he/she cannot develop policies but simply because he/she cannot defend the constitution.
In view of the above concepts and theories, the critical question here therefore is; why do we see our Head of State been guarded by the VVIP Police Force, including when the Late President had a Commissioner from the Police as his main bodyguard?
Was the Head of State given the 21-Gun Salute when the Oath of Office was administered to him by the Chief Justice and when he was given the instruments of power or National symbols? Or was this also forgotten as the conferment with the Most Ancient Order of Welwitschia Mirabilis which only took place recently in a ceremony, held on Saturday, 3 August 2024?
Do we have a clear guideline and a protocol manual on the interment of a sitting Head of State and Government or are we still going to benchmark from our neighbours? Why did the country not have the official portrait of the fourth President from the moment he took the Oath of Office and only replaced that of the late President Dr. Hage G. Geingob in July 2024?
The official portrait will hang alongside the portrait of the Founding President, Dr. Sam Nujoma as it was announced by the then Prime Minister Nahas Angula when he told the National Assembly that according to the Cabinet resolution, the portraits of the Founding President and the serving President must both be displayed in all public offices and buildings.
According to the Cabinet resolution, the portrait of the serving President must be displayed at the highest level within the room. The portrait of the Founding President must be displayed across or opposite the portrait of the incumbent President.
If both portraits have to be displayed next to each other, then the portrait of the serving President must be placed higher than that of the Founding President and to the left of his picture as advised by the Ministry of Foreign Affairs, which had in turn learnt from the experiences of other countries, such as the United Republic of Tanzania, on the display of the portraits.
The above questions are not meant to cast aspersion on the Presidential Advisors and the Minister in the Presidency but simply to correct the mistakes that occurred so that they cannot be repeated in future. Disclaimer: The opinions expressed here do not necessarily reflect those of my employer and this newspaper but solely my personal views as a citizen.
