Upton* Sinclair's quip that "it is difficult to get a man to understand something when his salary depends on his not understanding it", best sums up the presidential press secretary's response on whether president Nangolo Mbumba is an acting president (Namibian Sun's YouTube channel, 4 August).
Insisting the debate has been settled and that further questions are merely polemical appears to be the prevailing view.
In fairness to the press secretary, he was doing his job as the government's spin doctor. However, in fairness to us, the great unwashed, there are no such constraints.
At the risk of putting my head in the lion's mouth, I think our Constitution knows only two types of presidents: (a) a president directly elected by citizens; and (b) an unelected president who acts as president in specified limited circumstances, which include finalising the mandate of an elected deceased predecessor.
As president Mbumba was not elected, he is an acting president.
HOW TO READ THE CONSTITUTION
Constitutional interpretation is a value-laden exercise. It involves asking to what constitutional value or purpose (used interchangeably for brevity) a relevant article seeks to give expression.
This does not mean ignoring the article's language and looking only to purpose or values; this would defeat the point of having a written Constitution.
It only requires that we read the article in a manner which best gives meaning to its purpose.
As this is not always clear, and there are instances in which there are competing purposes, this can be difficult.
Article 29(4)(a) says, if the president dies one year before the date for the next presidential elections, the role should be filled by one of the people listed in Article 34(1)(a), which sets out, in descending order, who will "act as president for the unexpired portion of the president's term of office".
The list is comprised of members of parliament, including those appointed to Cabinet by the president.
At the top of the list is the vice president, and so it came to pass that Mbumba succeeded president Geingob.
Central to this debate are the words "act as" in article 29(4)(a), a phrasal verb which strongly hints that the person performing the functions of president is not doing so in the usual or normal course.
If you say "in my father's absence, my uncle would often act as my dad", my uncle is not actually my dad but rather a stand-in father given the unusual circumstance of my father's absence.
However, as the issue is a constitutional provision, plain meaning is not enough, and we must look further to value and purpose.
IDENTIFYING VALUE AND PURPOSE
Two ostensibly competing values come to mind when reading the relevant articles: Direct democracy; and continuity (stability) and orderly succession.
Namibia is a democracy in which the president is elected directly.
The power to appoint the president through elections belongs entirely to the citizens. This value is therefore self-evident.
The second value (continuity and orderly succession) needs to be inferred from the Constitution and requires some explaining, given its apparent conflict with the first.
The danger of our presidential system is that direct presidential elections confer a democratic mandate on one individual, and their death could lead to a power vacuum and government paralysis.
The US (also a presidential system with some quirks) deals with this issue by electing two people to the executive (president and vice president).
However, Namibia's vice president is appointed, not elected. Parliamentary systems like South Africa don't have this issue.
Their head of state is elected by members of parliament: If Ramaphosa was to die in office, parliament would simply elect another president.
Instead of elections, Namibia's Constitution sometimes deals with this abrupt exit by having an unelected person step into the role pending elections.
A plausible theory for this is that a president who dies having completed 80% of their mandate would likely have settled and conveyed the agenda for his final year in office.
It is entirely consistent with democracy to allow a successor (in this case, a person he appointed to his Cabinet) to continue the final phase of the departed's democratic mandate.
This form of continuity should not be confused with necrocracy (in which a deceased leader's reign continues to the grave).
It only assumes, for example, that had Geingob died in April, he would already have publicly announced his final agenda through the state of the nation address in March, and Mbumba's limited role would be to finalise this agenda which traces its roots to Geingob's elected mandate.
Illustratively, it would be counter-democratic for an unelected successor to govern the country for more than a year as it would allow them enough time to implement an unelected mandate of their own.
The value of direct democracy thus requires that we have elections to confer a fresh mandate in this obverse scenario.
BEST READING OF THE ARTICLES
What reading of the two articles best expresses the values discussed above?
In plain English, unvarnished by political expediency, article 34 says in precise terms that a person acts as president, because their only role is to complete the elected predecessor's unexpired term.
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The ordinary, plain meaning that such a person is an acting president is thus on all fours with the value of direct democracy tempered by continuity and orderly succession, and it is no doubt correct.
IN CONCLUSION
The journalist interviewing the press secretary was at pains to point out that the precedent set after (and I would add: leading up to) Geingob's passing is important for posterity.
The fiscal implications alone (including a lifetime salary not available to acting presidents) mean the issue is far from moot.
Additionally, being a vintage VIP is seemingly an unspoken criterion for the Presidency; at 62, president Nujoma was the 'youth' president of our time.
The thought (however indecorous) that the late Geingob might not be the last to make an untimely exit is not too far-fetched.
It is tempting to insist on consensus on this issue.
Dissent may puncture the relative tranquility which followed Geingob's passing, it is said. But, as Thomas Jefferson is rumoured to have remarked, "dissent is the highest form of patriotism".
A thorough explanation is unlikely to come from the government given obvious conflicts of interest.
The duty of citizens to openly discuss this difficult question has therefore never been more urgent.
- * Metumo Shilongo is a professional overthinker and Namibian citizen.
