SENIOR advocate Raymond Heathcote SC has raised serious constitutional and economic concerns over Namibia’s proposed Investment Promotion Bill, warning that the legislation, if passed in its current form, could discourage foreign investment and undermine the rule of law.
In a legal opinion commissioned by the Namibia Institute for Economic Policy (NIEP), Heathcote concludes that the Bill is inconsistent with Article 99 of the Namibian Constitution, which requires foreign investment to be encouraged through an Investment Code adopted by Parliament, rather than through an Act of Parliament.
Heathcote stresses that his opinion does not accuse any individual or institution of wrongdoing and notes that the Bill has not yet been approved by Parliament, the Attorney General, or the President. However, he argues that the constitutional issues raised are fundamental and cannot be resolved through minor amendments.
According to the opinion, the Bill introduces extensive discretionary powers for the Minister, allowing key investment rules to be determined through regulations, directives and guidelines that may not be publicly gazetted. Heathcote warns that this creates legal uncertainty and replaces a rules-based system with a “permission-based” regime, which is likely to deter investors.
The opinion further cautions that Parliament would be unlawfully giving away its legislative authority by allowing the Minister and senior officials to effectively make binding law. Heathcote describes this as an impermissible abdication of Parliament’s constitutional role.
He also raises concerns about unequal treatment of foreign investors, arguing that the Bill may violate Namibia’s international obligations by allowing affirmative action measures to be applied selectively to foreign investors, while not equally applying to Namibian businesses.
NIEP said the opinion was commissioned following concerns raised by Namibian investors and other affected parties, and is intended to contribute constructively to ongoing consultations. The think tank says it supports evidence-based policymaking that both safeguards national interests and creates an enabling environment for sustainable investment and job creation.
