Juan Simson Kauluma
In the 2025 State of the Nation Address, Her Excellency Dr Netumbo Nandi-Ndaitwah stated that Namibia cannot proceed with “business as usual”, a conviction which must be understood in the broader context of Namibia’s transition into a petroleum-producing nation and the need to adopt an appropriate governance framework for the upstream petroleum sector.
Following her assumption of office, the President transitioned the powers relating to upstream petroleum regulation to a newly established petroleum regulatory framework under the Office of the President.
This institutional restructuring must be understood not merely as an administrative arrangement, but as a policy and governance decision aimed at centralising strategic oversight of Namibia’s petroleum resources, which are regarded as a strategic national asset with significant implications for national development, revenue management, and economic policy.
While criticism has arisen, largely centred on governance concerns, constitutionality, the risk of corruption, and the perceived centralisation of power within the Presidency, such criticism is in many respects narrow in scope and fails to fully appreciate the constitutional architecture of the Republic of Namibia and the democratic framework within which executive power is exercised.
Namibia operates under a constitutional democracy founded on the principles of the rule of law, separation of powers, and checks and balances among the Executive, Legislature, and Judiciary, as established by the Constitution.
Despite criticism of the institutional placement or relocation of the upstream petroleum regulatory function, the 8th Administration, under the leadership of Her Excellency Netumbo Nandi-Ndaitwah, did not seek to exercise such authority outside the constitutional framework.
Instead, the Administration tabled a Bill before Parliament, the constitutionally mandated legislative body vested with law-making powers, for the establishment and formal recognition of a Petroleum Unit.
This step is significant from a constitutional and governance perspective, as it demonstrates that although the Petroleum Unit is to operate under the auspices of the Presidency, the Administration nevertheless sought Parliament’s approval, oversight, and legislative authority to formally establish, regulate, and define the institution’s powers and functions.
Addressing concerns
It should always be remembered that the men and women who fought to liberate this country from the flagrant and wanton lawlessness that characterised pre-independent Namibia were propelled by the vision of establishing a Republic founded upon the rule of law, constitutionalism, and democratic governance.
That vision ultimately found expression in the adoption of the Constitution of Namibia, which established a constitutional democracy grounded in the separation of powers, the rule of law, and the accountability of all organs of State. It is within this constitutional framework that all governance decisions, institutional arrangements, and policy choices must be appraised, including the placement of the upstream petroleum regulator under the Office of the President.
The Constitution did not establish a system based on distrust of public institutions, but rather one based on structured accountability, oversight, and the lawful exercise of public power. It is through these mechanisms that any concerns relating to governance, transparency, or the centralisation of authority must be addressed.
Therefore, it matters little whether upstream regulation (Petroleum Unit) is placed under the auspices of the Presidency or under the Ministry of Mines and Energy, without first appreciating the constitutional framework within which all public institutions in Namibia operate.
The real question is not the Unit’s physical or administrative location, but whether the institution operates within the law, remains accountable to Parliament and the public at large, is subject to judicial review, and exercises its powers in accordance with the Constitution and the principles of administrative justice.
In a constitutional democracy such as Namibia’s, no public body, regardless of its institutional location, operates outside the law or beyond oversight. All public power is subject to legality, rationality, and procedural fairness, and all institutions remain accountable through public oversight, and the courts.
The debate should therefore not be narrowly framed around institutional placement, but rather around governance safeguards, transparency mechanisms, and accountability structures that ensure the proper management of Namibia’s petroleum resources for the benefit of present and future generations.
Indeed, this position finds further support in the jurisprudence of the courts, which have consistently affirmed that no organ of State is beyond constitutional scrutiny.
A pertinent example arises from the conduct of the Head of the Namibian Central Intelligence Service, a statutory body established to safeguard national security, who advanced the position that the institution was effectively immune from public and judicial oversight under the guise of national security.
This contention was decisively rejected by the Supreme Court of Namibia, which, in emphatic terms, reaffirmed the principle of judicial independence and held that claims of national security do not place executive action beyond curial scrutiny.
The Court made it clear that the notion that the Executive may invoke secrecy to render itself immune from judicial oversight is incompatible with the values of an open and democratic society founded upon the rule of law and legality.
While recognising that secrecy may, in appropriate circumstances, be justified, the Court stressed that such justification remains subject to judicial determination. This authority powerfully illustrates that even in the most sensitive domains of State function, constitutional control, accountability, and the supervisory jurisdiction of the courts remain paramount, thereby reinforcing the principle that the placement of any regulatory body, however strategically located, does not exempt it from the discipline of the law.
The way forward
In light of the debates and criticism surrounding the placement or relocation thereof, of the upstream petroleum regulator under the Presidency, the way forward should not be framed as a contest between institutional locations, but rather as a constructive process of strengthening governance, transparency, accountability, and public confidence in the management of Namibia’s petroleum resources. The focus must shift from where the regulator is located to how it is to be governed, supervised, and held accountable within the constitutional framework.
First, the Petroleum Unit or upstream regulator must be firmly established through legislation passed by Parliament in accordance with the Constitution, clearly defining its powers, functions, reporting obligations, and oversight mechanisms. The legislation should ensure that the regulator operates independently in its technical and licensing decisions, even if it falls under the Presidency administratively. Independence in decision-making is more important than administrative location.
Secondly, both Parliament and the public must play a strong oversight role. The regulator should be required to submit annual reports, financial statements, and licensing reports not only to Parliament but also to make key information transparently accessible to the public. This dual oversight ensures democratic accountability, strengthens public confidence, and promotes transparency in the management of petroleum resources, which are national assets belonging to all Namibians.
Thirdly, transparency mechanisms should be strengthened, particularly regarding petroleum licensing, contracts, and revenue management. Clear procedures for licensing rounds, publication of petroleum agreements where appropriate, and compliance with international best practices in resource governance will go a long way in addressing concerns about corruption and lack of transparency.
Fourthly, there must be strong institutional checks and balances through existing oversight bodies such as the Auditor-General, the Anti-Corruption Commission, and the courts. As already demonstrated, no organ of State is immune from judicial review, and all administrative decisions remain subject to legality, reasonableness, and procedural fairness.
Finally, Namibia may consider a long-term institutional development path whereby, as the petroleum sector matures and institutional capacity develops, the upstream regulator could evolve into a fully independent statutory authority. Many petroleum-producing countries followed a similar path, beginning with strong executive coordination in the early stages of the industry and gradually transitioning to more independent regulatory institutions as the sector stabilised.
Therefore, when the President stated that it is not “business as usual,” this should be understood not as a departure from constitutionalism, but as a recognition that the discovery and development of petroleum resources places the country in a new economic and governance era, necessitating new institutional arrangements, stronger coordination, and enhanced public scrutiny. While the sector requires a distinct governance approach due to its strategic importance, it must nevertheless operate within the Constitution, the rule of law, and the system of checks and balances that define Namibia’s constitutional democracy. In this sense, it is not business as usual, not only in terms of governance and resource management, but also in translating the ideals of constitutional supremacy, legality, accountability, and the rule of law into practical, functioning mechanisms. If these governance pillars are firmly in place, the placement of the upstream petroleum regulator under the Office of the President will not undermine its constitutional democracy. Still, it can instead operate effectively within a framework of accountability, legality, and oversight that underpins the Namibian constitutional order.
