The purpose of this statement is to address and critically examine the office of the “Leader of the Official Opposition” in Namibia, a position that has been treated as if it were an official public office despite having no clear legal foundation.
This analysis is rooted in the first principles of law – beginning with the Namibian Constitution and extending to relevant statutes and proclamations.
It will demonstrate that the Namibian Constitution does not establish or envision any office titled “Leader of the Official Opposition.”
Furthermore, it will show how subsequent attempts to attach benefits and status to this title through statutes and presidential proclamations have created a position that is administrative and symbolic rather than lawful. In short, the “Leader of the Official Opposition” is an office that exists solely by executive decree, lacking formal parliamentary sanction or constitutional basis, and is therefore of dubious legality – a “shadow with a salary” rather than a constitutionally recognised institution.
In 2017, the President of the Republic (acting on advice from the Public Office-Bearers Commission) purported to “establish” the Office of the Leader of the Official Opposition by proclamation.
This was followed by further proclamations in 2021 (published in Government Gazette No. 7476) that set out various remuneration and benefits for this so-called office.
These actions were justified by invoking comparative Commonwealth practices and by referencing Article 32(7) of the Constitution – a provision allowing the President to constitute offices in the public service under certain conditions. However, as will be argued, this approach bypassed the normal legislative process and stretches constitutional powers beyond their intended scope.
The result is an office that carries the trappings of officialdom (office space, staff, vehicles, and salary perks) but no lawful authority or definition in Namibian governance structures.
This statement is structured to first examine the constitutional framework, then the role (and limits) of the Public Office-Bearers (Remuneration and Benefits) Commission Act, 2005, followed by an analysis of the 2017 and 2021 presidential proclamations. It concludes with a critique of the constitutional implications and presents clear recommendations to address this anomaly. The tone is formal and rooted in legal reasoning, combined with a sharp political critique of the manner in which this office was created and maintained.
CONSTITUTIONAL FRAMEWORK: ABSENCE OF A LEGAL BASIS
No Provision in the Constitution: The Namibian Constitution is the supreme law and the point of departure for defining all public offices in the Republic. Nowhere in the Constitution is there any provision for an office titled “Leader of the Official Opposition.”
The Constitution meticulously outlines the structure of government and state, establishing the offices of the President, Prime Minister, Ministers and their Deputies, the Speaker of the National Assembly, the Chairperson of the National Council, judiciary officers, and other constitutional commissions and posts.
It does not create or even mention a position for the head of the opposition in Parliament. In a constitutional democracy governed by the rule of law, if an office is not provided for in the supreme law or an Act of Parliament, that office has no legal existence.
By contrast, when Namibia has deemed it necessary to add new high offices or positions to the governance framework, it has done so by constitutional amendment or by enacting legislation.
For example, the position of Vice-President was created via constitutional amendment, ensuring that the office became part of the constitutional architecture with a clear mandate and legal recognition. No such amendment or law was ever passed to establish a “Leader of the Official Opposition.”
The absence of any constitutional amendment or explicit Act of Parliament for this role is a glaring omission that cannot be cured by executive action alone.
Improper Use of Article 32(7): It has been argued by the Executive that Article 32(7) of the Constitution provided a pathway to “constitute” the office of Leader of the Official Opposition.
Article 32(7) allows the President, “in consultation with the Cabinet and on the recommendation of the Public Service Commission,” to constitute any office in the public service of Namibia not otherwise provided for by law, appoint a person to such office, and determine the terms and conditions of service.
This provision is generally understood to relate to administrative offices in the public service (civil service) — for instance, creating a new department or a special public service position that is not established by existing law.
It was never intended as a backdoor method to create new high-level political offices or alter the structure of the legislature.
The phrase “subject to the provisions of this Constitution and of any other law” in Article 32(7) is critical. It means the President’s power to create an office cannot be exercised in a way that contradicts the Constitution or statutes.
Invoking Article 32(7) to create a political office in the Legislature – effectively conferring a quasi-executive status on the head of the opposition – is a serious stretch of that provision.
The Leader of the Opposition is not a public service employee; he or she is an elected Member of Parliament, typically the head of the largest opposition party. Such a role is part of the legislative and political process, not part of the civil service that Article 32(7) targets.
The attempt to squeeze this position under the label of “public service” is constitutionally questionable. It blurs the separation of powers by allowing the Executive to unilaterally fashion a role in the Legislative branch.
It is telling that no other law “of application in this matter” provided for such an office, prompting the use of Article 32(7) in the first place – a clear indicator that this move filled a legal void with a mere presidential proclamation.
No Parliamentary Approval or Oversight: Notably, Article 32(8) of the Constitution requires that any appointment or action taken under Article 32(7) must be announced by proclamation in the Gazette. Indeed, Proclamation No. 4 of 10 March 2017 was issued in the Government Gazette for this purpose.
However, beyond gazetting, Parliament was not actively involved in establishing this office. Article 32(9) does provide a mechanism for the National Assembly to review or reverse actions taken by the President under Article 32 (by a two-thirds majority), but no such resolution was ever sought or passed regarding this proclamation.
In effect, the Office of the Leader of the Official Opposition came into being solely by presidential fiat, without a direct vote or debate in the National Assembly on its creation.
This lack of parliamentary sanction means the office lacks the democratic legitimacy and legality that comes from an Act of Parliament. It remains an anomaly: a position with public funding and perks that owes its existence to a discretionary presidential power rather than to the sovereign will of the people expressed through legislation.
In summary, from a constitutional standpoint, the Leader of the Official Opposition is a constitutional orphan – it is not found in the letter of the Constitution, and its attempted adoption via Article 32(7) is at best an abuse of an administrative power and, at worst, ultra vires (beyond the President’s legitimate authority).
This sets the stage for examining the subordinate instruments and laws that have been cited in relation to this office, none of which can substitute for the absent constitutional foundation.
To understand how benefits came to be attached to the so-called shadow office of the opposition leader, we turn to the Public Office-bearers (Remuneration and Benefits) Commission act, 2005 (Act no. 3 of 2005) (hereafter “Public Office-bearers Act” or “POB Act”). This act establishes a commission tasked with making recommendations on the remuneration and benefits of public office-bearers.
Crucially, the act does not create any public offices by itself – it merely provides a mechanism to determine and review the salaries and benefits of persons holding offices that are already established by the constitution or other laws (for example, the president, vice-president, prime minister, ministers, mps, judges, regional governors, etc.).
In other words, the act’s function is derivative: it attaches remuneration and perks to pre-existing offices defined elsewhere in law.
Under the POB Act, the commission reviews and recommends appropriate pay and perks for various grades of public office-bearers. These recommendations are then considered by the president, who, under section 8 of the act, has the power to determine the remuneration and benefits for such offices by proclamation, after considering the commission’s advice.
Nothing in the act empowers the commission or the president to invent new political or constitutional offices. The wording of section 8 and related provisions presupposes that the offices it deals with have a legal existence independent of the act.
The act uses terms like “public office-bearer” in the ordinary sense – meaning someone holding an office created by the constitution or statute (or in the case of regional/local authorities, by relevant legislation).
In the case of the “leader of the official opposition,” the public office-bearers act was effectively used in reverse. Instead of the office existing first and the act simply assigning a pay grade to it, the executive attempted to use the act’s framework to give substance to an office that had no prior legal substance.
The commission (reportedly in its second review report, per statements made in parliament) recommended providing certain “tools of trade” and benefits to the leader of the opposition, citing “commonwealth practice” and democratic norms. The president then “approved the report and the resultant recommendations” and proceeded to proclaim benefits for the opposition leader position.
This sequence creates the false impression of a lawful office: because the POB Act was invoked and a proclamation was issued under its authority, it appears as if the leader of the opposition is just another public office-bearer being catered to by existing law.
In reality, this use of the act is predicated on the prior executive creation of that office by the 2017 proclamation, without which the act would have no object to operate on.
It bears repeating that nothing in proclamations 12 or 13 of 2021 (nor in the 2005 act under which they were made) assigns any official duties or powers to the leader of the opposition.
The proclamations deal exclusively with benefits – they are about what the office-holder gets, not what or who the office-holder is or does.
This cements the notion that the office is an honorific with material benefits attached, rather than a functional part of governance. It is a status bestowed by the executive. One could remove all these benefits tomorrow, and it would make no difference to how Namibia is governed – because the leader of opposition has no constitutional or statutory responsibilities beyond being an mp and party leader.
The leader elected at its congress or convention. Conversely, if one tried to exercise any authority by virtue of being “leader of the opposition”, there is no legal text that grants such authority. The office is thus entirely one-sided: it receives, but it does not empower.
In summary, the 2021 proclamations in gazette 7476 show the culmination of the process that started in 2017: the executive, having unilaterally declared an office, went on to unilaterally endow it with taxpayer-funded benefits.
This was done through subordinate legislation (regulations and determinations under an act) rather than through primary legislation. It was an administrative codification of a political arrangement.
While these steps may have followed the formalities of the procedures (consulting the POB Commission, psc, cabinet, gazetting, etc.), they collectively amount to an executive shortcut around the legislature. The result is a position that looks official on paper yet lacks lawful substance.
The creation of the “leader of the official opposition” office by executive decree has significant implications, both legally and politically:
• Undermining the rule of law: Namibia prides itself on a foundation of constitutionalism and rule of law since independence. By sidestepping the normal law-making process and inventing an office through a presidential proclamation, the executive has set a concerning precedent.
It suggests that important changes to government structure can be made without consulting the people’s representatives in parliament, which is antithetical to the rule of law.
A constitutional democracy demands that new institutions or offices be grounded in law, not personal discretion. This action sits uncomfortably with the principle that all governmental power must stem from the law (the principle of legality).
Separation of powers concerns
The legislature’s domain includes creating offices and defining roles through laws; the executive’s domain is to implement laws. Here, the executive effectively legislated by creating a new role in the legislative sphere.
This blurs the separation of powers. The legislature was not given the opportunity to deliberate on whether the opposition leader (which denotes the leader of the second largest party emerging from an electoral process as the leader of the largest political party) should have official status and resources, which could have involved debate on the role of the opposition in a democracy, checks and balances etc. Instead, the president, via article 32(7), dealt with it unilaterally. This concentration of power contradicts the spirit of inclusive governance.
Accountability and transparency
Because this office was created and operationalised without a specific act, there is no clear statutory delineation of its purpose or limits. This can lead to accountability issues.
For instance, public funds are now being expended on the leader of the opposition’s salary top-ups, vehicles, staff, etc., in the absence of a law explicitly authorising such expenditure for such an office.
One might well ask: under what vote or budget line are these expenses accounted? Likely they are tucked into the national assembly’s budget or a general “public office-bearers” budget. This murkiness is not ideal for transparency.
Parliament never got to scrutinise a “leader of opposition office budget” through an appropriation bill or dedicated debate; it was folded into existing structures.
The public too was largely left in the dark about this until media reports surfaced about the “perks” being given. Such opacity can breed mistrust and allegations of backroom deals.
Political co-optation vs. democratic support
Politically, opinions may diverge on whether giving the opposition leader official resources is good or bad. On one hand, it can be argued that supporting the official opposition with resources strengthens democracy, as the opposition can do its job of holding government accountable more effectively (this was the executive’s ostensible rationale, citing “building strong democratic architecture”).
On the other hand, doing so via an executive privilege rather than a legal entitlement can be seen as a form of co-optation or patronage. It puts the opposition leader in a somewhat dependent position: their perks come at the discretion of the president. This could compromise the independence of the opposition or at least create a perception thereof.
A truly institutionalised leader of opposition would have their office protected by law, not subject to the grace and favor of the head of state.
By making it an executive grant, it almost has the character of a political favor. This dynamic can blunt the sharpness of opposition critique indeed, the very need for this statement underscores that other voices (perhaps smaller opposition parties or principled members of the ruling party) are questioning the legitimacy of what the main opposition leader accepted.
Constitutional dubiousness (“shadow with a salary”)
Ultimately, the office of leader of the official opposition as it stands now is, as earlier phrased, a “shadow with a salary.” It is a shadow because it lacks corporeal form in the law it’s not defined in the constitution or a statute, making it effectively a nullity in a strict legal sense.
Yet it carries a salary (and other benefits) drawn from public coffers. This situation is constitutionally dubious because it amounts to spending public money on a position that legally does not exist or, put differently, exists only because the presidentdecided it should. If challenged in a court of law, serious questions would arise: can an executive proclamation create an “office” that the state is then obliged to fund?
Does this not circumvent article 117 (which establishes the public service commission and implicitly the framework for public offices) or even article 26/27 if one considered the need for parliamentary approval for creating significant public obligations? While
the nuances could be debated, the safe observation is that the arrangement sits at the edges of constitutional permission and possibly beyond. It survives only because it has not been formally contested or scrutinised in a judicial or full parliamentary process.
In conclusion of this section, the impact of maintaining an office with no legal foundation is corrosive to our constitutional order. It conveys that form can trump substance that one can hold a lofty title, draw taxpayers’ money, yet be standing on thin air legally.
This is not a precedent Namibia should entrench. It is imperative to address this anomaly head on, both to uphold the sanctity of our legal framework and to ensure clarity and fairness in how we support the institutions of democracy.
After careful analysis, it is evident that the office of the “leader of the official opposition” in Namibia lacks any proper legal foundation. It is a creature of expedience, created by an executive proclamation rather than by law, and propped up through administrative instruments.
The Namibian Constitution does not recognise it, and the statutes invoked do not legally establish it. In its current form, this office is constitutionally suspect and politically problematic. It exists as a de facto arrangement, a political accommodation with benefits but not a de jure institution of state. In sum, it remains a “shadow with a salary,” devoid of formal legitimacy.
This has been a formal statement combining legal analysis with political critique, and it leads to the following clear recommendations for corrective action:
Enact proper legal foundations or cease the practice
If it is deemed desirable for Namibia’s democracy to have an official leader of the opposition with a defined role and state support, then it must be done lawfully. This means introducing a
constitutional amendment or passing an act of parliament to formally create that office and enumerate its functions, privileges, and term. Only through such legislative action can the office gain the legitimacy and clarity it currently lacks.
Conversely, until such a law is in place, the practice of treating the opposition leader as if it were a formal office should be halted. In principle, Namibia should either legalise this office properly or abandon the pretense of it altogether. The democratic correct course is to go through the people’s representatives.
Therefore, a call is made for parliament to consider a constitutional amendment or enabling legislation to lawfully establish the office of the leader of the opposition, should the nation deem it necessary.
Suspend and review benefits granted under the disputed designation
In the interim, given the doubtful legality of the current arrangement, there should be a suspension or thorough review of all benefits and remuneration afforded to the so-called leader of
the official opposition under this disputed designation. The public office-bearers commission and relevant government agencies must revisit their frameworks to ensure that no benefits are being conferred ultra vires. If an office is not legally constituted, public funds should not be allocated to it without explicit legislative approval.
This review should be carried out with urgency and transparency, ideally by the national assembly’s public accounts or standing orders committees, to determine the proper course of action regarding salaries, allowances, vehicles, staff, and other resources currently allocated. No further benefits or expansions should be given under this title until the legal status is resolved.
Launch a public inquiry into the 2017 proclamation and its motivations
There should be a public inquiry or at least a detailed parliamentary probe into the legality and motivations behind proclamation no. 4 of 2017. This inquiry would serve multiple purposes.
- First, it would bring to light the exact content of that proclamation (which has been worryingly elusive), allowing legal experts and the public to scrutinise how the president framed the creation of this office.
- Second, it would examine why proper procedures were not followed was there any legal advice given at the time, were any concerns raised by the attorney-general or others about using article 32(7) in this novel way, and why parliament was not engaged on the matter.
- Third, it would explore the motivation: was this done purely to strengthen democracy (as officially claimed), or were there political bargains or understandings at play (for instance, to placate the opposition or create a certain image)? Unpacking the motivation is important for accountability; if it was in good faith (all be it misguided) effort to align with commonwealth norms, in the mother of parliaments, this office is on par with the executive head of government-see also rule 8 of the standing rules, that will emerge and if it was a politically convenient arrangement devoid of legal rigor, that too should be laid bare. Such an inquiry could be conducted by a parliamentary committee or an independent commission, and its findings should be made public to ensure full transparency. Ultimately, this process would help prevent similar occurrences in the future by clarifying the boundaries of constitutional power and the importance of adhering to them.
Restore constitutional order and clarity
As a broader recommendation, the government and parliament should reaffirm the principle that all public offices and expenditures must have a firm basis in law. Whether through a resolution of parliament or a policy directive, it should be made clear that ad hoc creation of offices by executive decree is not the norm in Namibia’s governance.
If certain roles (like that of the opposition leader) are considered crucial for our democracy, they should be constitutionally and statutorily recognised, not left in a gray zone.
Additionally, if the review mentioned above finds that the use of article 32(7) was inappropriate in this context, parliament might consider legislating clearer limits or definitions for that article to prevent potential abuse (for example, explicitly excluding the creation of political offices from the ambit of “public service” offices that the president can establish unilaterally).
This will ensure future presidents are guided and restrained by more explicit language, preserving the separation of powers.
In closing, the official recognition of a leader of the opposition is not inherently a bad idea many democracies do it to affirm the role of opposition in governance.
However, how it is done matters profoundly. In Namibia’s case, it was done incorrectly, bypassing the very democratic principles it purports to support. It also ignores the disjunctive provisions of article 17 of the Namibian Constitution and the absence of clarity in the electoral act, act 5 of 2014.
To uphold the sanctity of our constitution and the credibility of our democratic institutions, we must rectify this. Let us either ground the leader of the opposition’s office in law or cease according it an official status. What we cannot do is continue with a constitutional charade; an office that looks real in government circulars but vanishes when one opens the constitution.
This statement and its recommendations are submitted for consideration by the parliament of Namibia, for communication to the wider public through the media, and for guiding internal strategy within political parties committed to the rule of law. It is a call to action to ensure that Namibia remains a nation of laws, not executive whims. Let us strengthen our democracy the correct way: through lawful means that honor both the letter and spirit of our constitution.
This is the legal basis why the leader of the IPC, shall not, neither the IPC, seek to violate the constitutional principles of rule of law.
- Sources cited:
- • Namibian Constitution (particularly article 32(7)-(9).
- • Public Office-bearers (remuneration and benefits) Commission Act, 2005 (Act no. 3 of 2005) as referenced in government gazette no. 7476 (4 March 2021).
- • Government gazette no. 7476 (4 March 2021), Proclamation 12 of 2021 (transport benefits regulations) and Proclamation 13 of 2021 (additional benefits for leader of official opposition).
- • New Era, “More perks for Venaani… opposition leader will welcome second-hand car” (18 June 2020) – reporting on the announcement of the opposition leader’s office and quoting article 32(7) and officials’ statements.
- • Statements by the minister in the presidency (March 2020) on the implementation of public office-bearers commission recommendations.
