Swartbooi and Another v Speaker of the National Assembly (SA 38-2021) [2021] NASC (4 August 2021)

In Swartbooi, the Supreme Court of Namibia failed to give flesh, blood and bones to a theory that could unify the cases that dealt with the separation of powers in Namibia. Though few lawyers would disagree with the outcome of its judgment, the Court nonetheless achieved this outcome by retreating into its legalistic shell. At the same time, the Swaartbooi case completed a triangle that plotted all the possible relationships between the three organs of state in Namibia. After Ex parte in re: the Constitutional Relationship Between the Attorney-General and the Attorney-General (hereinafter referred to as ‘AG and PG’) addressed the relationship between the executive and the judiciary, the Itula case handled the relationship between the executive and legislative branches. Thirdly, the Swartbooi case confirmed the relationship between the legislature and the judiciary. Still, when tackling the separation of powers doctrine, the Supreme Court almost exclusively focused on the rule of law and neglected the democratic aspects of the doctrine, thereby missing a golden opportunity to articulate the two other principles (democracy and justice for all) that underpin Namibia as a state. The Court did not seize the moment to Namibianize the doctrine