Limits to ministerial sway over appointments in Namibia

In the latest showdown between Namibian government employees and ministers, an employee has once again prevailed over purported ministerial powers, with the High Court of Namibia setting aside the Prime Minister’s decision to cancel the promotion of an internal staff member, citing a lack of power and discretion.

The legal framework on recruitment in government bodies requires that certain appointments be made subject to final approval by line ministers. In recent years there has been a trend of line ministers initially rejecting appointments for various reasons, only to backtrack later on their own or once pressure is applied by the aggrieved candidate and/or the public. There is no doubt that line ministers wield some power over recruitment, but the trend implies that such power is often exercised excessively or arbitrarily.

Three recent cases give a taste of this trend.

On 26 March 2022, the Namibia Sports Commission recommended the re-appointment of its Chief Administrator, Freddy Mwiya. The line minister rejected the recommendation and directed that the position be advertised. Mwiya approached the High Court on an urgent basis to have that decision reviewed and set aside for violating Article 18 of the Constitution which requires fair and reasonable administrative justice. The minister opposed the application, but in August 2022 the matter was settled, and the minister effectively accepted that her decision was wrong and in conflict with Article 18. Mwiya was, accordingly, re-appointed.

Last year the City of Windhoek recommended Conrad Lutombi for the position of Chief Executive Officer, subject to ministerial approval. The line minister rejected the recommendation, citing allegations of favoritism and other irregularities in the interview process, but ten days later the minister made a U-turn and approved the recommendation. According to legal experts, the minister’s duty was only to approve and not to appoint.

Namibia’s prime minister, Saara Kuugongelwa-Amadhila, is the latest to have been found to have exceeded her powers, in a matter involving an investigator at the Anti-Corruption Commission, Phelem Masule, being promoted to the position of Chief: Investigations and Prosecutions. Masule was selected over the first-placed candidate because that candidate’s application was incomplete. The prime minister nevertheless set aside Masule’s appointment due to complaints of irregularities by the first-placed candidate.

Masule approached the High Court on an urgent basis for relief. On 25 April 2023, the court ruled, among other things, that the prime minister acted in circumstances where she had no power to act. The judge stated that determination of complaints rested with the Public Service Commission as the impartial and independent body created by law to deal with complaints. Only the country’s president has the power to vary or reject a recommendation, said the judgement, stating that, at best, the prime minister could have looked into the decision and advised the president to either confirm or set aside the recommendations. The prime minister’s decision was, accordingly, set aside.

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