Recently some questions were raised about the authority by which the Cabinet had imposed a Moratorium on Marine Phosphate Mining.
What follows is by no means a legal opinion. It is merely an attempt to provide some perspective on this subject.
In The Namibian of 25 March 2014 Mr. Peter Koep made some points about the Moratorium which were carried in the last paragraphs of the article on Epangelo. That section of the article reads as follows:
“Koep also said the moratorium on phosphate mining, declared by Government last year has ‘no legal’ standing. In many instances, people think they have powers, which they don’t have. If you ask the fisheries minister where the moratorium is, he won’t show it to you. The minister of mines won’t show it to you either because there is no moratorium. If that is what the Government wants, why didn’t they follow the right procedure to get that moratorium on the books? At the moment everybody thinks there is a moratorium but legally there is no moratorium,’ he said”.
Indeed the Cabinet can’t make any laws. And the Moratorium is no law. Nobody ever claimed it to be.
However, the Cabinet, in terms of the Constitution, is charged with the responsibility to ensure that the laws of Namibia are faithfully and diligently administered. In doing so it shall direct, co-ordinate and supervise the activities of Ministries and Government departments.
Each Ministry has its own laws to apply. In some cases more than one Ministry is involved in a particular matter. The Ministry of the Environment and Tourism administers the Act in terms of which environmental clearances are issued – e.g. to any company wanting to mine phosphates in the sea. The Ministry of Fisheries and Marine Resources does have a vital interest in that it has to protect Namibian fishing resources.
Consequently, the Cabinet in imposing the Moratorium decided that all matters regarding phosphate mining must be cleared before any environmental certificate may be issued. The Moratorium thus allows reflection on the pros and cons of such mining. Thereafter, the Cabinet may decide to lift the Moratorium or extend it, or even make it permanent.
In other words, the Moratorium boils down to the fact that the Cabinet has instructed the line function Minister not to issue any environmental clearance certificate for any marine phosphate mining until Ministers are convinced and have satisfied Cabinet that Namibia’s marine environment and fishing industry will not be harmed.
Thus, the Cabinet is the ultimate authority on how laws shall be administered and applied. That is the responsibility of the Executive. And the Moratorium has been an executive decision.
The Memorandum that served before Cabinet and on which the latter based its decision conveyed all the views of the relevant Ministries directly involved. As is the case with all Cabinet Memorandums this one was also circulated to all Cabinet members. No Minister is obliged to show anyone a Cabinet decision. Neither Cabinet decisions nor Memorandums are published as such.
But, what would be the “right procedure” Mr. Koep has in mind.
To argue that the Cabinet should have taken another course is to deny the Cabinet of its inalienable right to take decisions in its own right, to exercise its constitutional mandate and to govern the country to the best of its abilities.
What is equally important is that it has done so in accordance with a major decision of the Namibian Supreme Court. In the case of Minister of Mines and Energy and Others v Petroneft International Ltd and Others (SA 32/2011) [2012] NASC 5 (21 June 2012) it ruled inter alia:
“29. The constitutional role of Cabinet is spelt out in the Constitution. Article 27(2) states that the ‘executive power of the Republic of Namibia shall vest in the President and the Cabinet’.
30. The Constitution thus establishes that the executive power vests in Cabinet and one aspect of this authority, as set out in Article 40(a), is the power to direct, co-ordinate and supervise the activities of para-statal enterprises. … The words ‘direct, co-ordinate and supervise’ are broad in scope and suggestive of a general executive power to issue policy directives pertaining to fiscal, economic, social and other similar considerations; to co-ordinate the way in which government departments, Ministries and para-statals function and to ensure, by executive supervision, that they work effectively both collectively and individually. Understanding the words in this way is consistent with the overall principle that the executive power of Government resides in the Cabinet.
31. …. This decision [by Cabinet] was consonant with Cabinet’s general powers to direct policy on these matters and its responsibility to ensure that Namcor functions effectively. In so doing, Cabinet acted in accordance with its powers to ‘direct, co-ordinate and supervise’… . …. The respondents’ argument that there was no legal basis for the decision cannot therefore succeed”. (Emphasis added)
If this decision by Cabinet to impose a moratorium is regarded as having “no legal” standing, then, with all due respect, all those holding this view should be aware that no less than the ultimate interpreter of the Namibian constitution will not entertain any of their arguments in this regard.
It can be confidently stated that the Supreme Court would have no hesitation in declaring that the Cabinet exercised its “general executive power” when it issued the Moratorium as a “policy directive”.
Even if another procedure had been followed, for instance by issuing or publishing a notice, then also that would be cold comfort as the Supreme Court ruled in another case on 26 March 2014 that the Minister of Mines and Energy had acted correctly when he denied prospecting licenses because of a moratorium that was in place at the time. The Chief Justice joined by two Justices underscored a Minister’s right “as the functionary entrusted with the responsibility of exercising control over the country’s minerals on behalf of the people of Namibia … to consider such weighty issues”. The Supreme Court considered him to be “entitled” to do so. That Court was unequivocal in its standpoint that the Minister
“… bore the ultimate administrative and political responsibility of ensuring that there was a proper policy and legislative framework in place to deal effectively with the increase in applications for nuclear minerals and to ensure that the exploitation of these strategic resources be managed optimally to the benefit of the country and its people. Such considerations are self-evidently in the national interest”.
When the Supreme Court thus grants that right to a Minister it goes without saying, let alone arguing, that the Cabinet as the collective assembly of Ministers has at least the same right. Furthermore, if this dictum of the Court is applied to the Moratorium then surely the Ministers in question are within their constitutional rights when they want to ensure that the exploitation of Namibia’s marine resources is “managed optimally to the benefit of the country and its people”.
[NOTE: The front page article “U-turn on phosphate mining” in the NEW ERA on 3 April 2014 had it all wrong. There has neither been any U-turn nor any softening of the stance on marine phosphate mining by the responsible Minister. A phone call to the Minister could have verified his steadfast position. He is determined as ever before in his stance against marine phosphate mining and to let the three year Moratorium run its course.]
(For Swakopmund Matters the environment of the Namibian coastline and its ocean matters)
Swakopmund Matters 6 April 2014
