The FIMA – did it go through an appropriate law-making process?

After the negative media coverage on ‘compulsory preservation’ set off by Job Amupanda’s FaceBook posting, a member of parliament complained that parliament was not consulted properly.

Having followed FIMA’s parliamentary process closely, it is clear that the FIMA went through the prescribed official process, but the process is clearly lacking. How else can a parliamentarian complain about inadequate consultation?

The law-making process requires that the sponsoring ministry presents a draft layman’ bill to the cabinet setting out the problem the bill will resolve for the cabinet to authorise the process to continue. In the case of the FIMA, its objects are to consolidate and harmonise the laws regulating financial institutions, financial intermediaries, and financial markets in Namibia; and to provide for incidental matters. That sounds great but should such vague indicators convince the cabinet to throw out everything in place without asking what went wrong under the existing dispensation? To my mind, the law-making process is defective to the extent that the cabinet would not know what the new law would fix. As I mentioned in a previous newsletter, the FIMA’s consolidation and harmonisation of all non-banking financial institutions might serve NAMFISA well, but it makes everyone else’s job considerably more complex and challenging.

The next step in the law-making process requires public consultation. In a previous newsletter, I expressed my opinion that no meaningful public consultation took place on the FIMA. The process, to my knowledge, did not include trade unions at all and ignored industry stakeholders’ most serious concerns. The process then envisages that the sponsoring Minister must receive the public’s submissions and comments. Even if the Minister did receive the public’s suggestions and comments, it is unlikely that he would have been able to deal with them meaningfully due to their overwhelming volume. Once again, it reveals another deficiency in the process, resulting from the extraordinary size and complexity of the FIMA.

?After the conclusion of the public consultation, the layman’s bill goes through a lengthy process involving the cabinet committee on legislation, the law reform and development commission, and the directorate of legal drafting ending up as a bill ready for submission to the national assembly. I venture to say that the FIMA did not follow this process. The FIMA is the product of Canadian consultants working in collaboration with NAMFISA, who engaged them. I pose the question: is it appropriate to use foreign experts for drafting legislation because we do not have the expertise? We might pass and implement a law we do not understand or appreciate its consequences and are incapable of administering because of lacking expertise. As another law-making deficiency: has anyone taken the trouble to assess whether Namibia has the means of applying such a law, i.e., something like an environmental impact study?

?The Minister must now confirm the draft bill or instruct its amendment, and once he is completely satisfied, the attorney general must certify the bill. Because of its complexity and size, I question whether the Minister had the requisite expertise in-house or had to rely on NAMFISA? It raises a deficiency in our democracy where a law is so complex and extensive that the sponsoring Minister must rely on his executing agency to make a new law.

?The Minister now introduces the bill in the national assembly for its first reading in the form of a short introduction. A second reading follows when the national assembly will debate the bill’s principles. The Minister must explain why the bill is needed. The recordings of this debate indicate that there was little debate and no discussion on the bill’s principles. The minutes recorded only a handful of cosmetic changes. Of course, the FIMA covers many principles, being an omnibus law covering all non-banking financial institutions that separate laws previously covered. Both houses of parliament considered this 400-page bill in a single session. The absence of robust debate on the FIMA indicates that the parliament was overwhelmed by its volume and complexity. It suggests a deficiency in the law-making process when parliament has to consider such huge and complex laws without the tools to evaluate them.

?To be fair to parliamentarians, where would you start to question anything if a 400-page document is presented to you for consideration in batches of clauses due to time constraints? For any bill in the class of the FIMA, the standard law-making process appears inappropriate. The law-making process should provide the tools to the parliamentarians to do justice to their purpose of representing the interests of their constituencies. Instead of focusing on the technical aspects of a bill, they should focus on the principles and procedural aspects. Parliamentarians do not have the technical expertise to evaluate such a bill meaningfully. They must rely on the law-making process for the technical soundness of any bill. I have not seen any document setting out the numerous principles of the FIMA and assume that parliamentarians also never so one other than the simple one-pager on the objects of the bill. I raise a few: the changes in the disposition of death benefits; the risks employers and trustees are facing; removing employer’s claim on benefits; excessive penalties and fines; extremely tight reporting timelines and many more. Parliamentarians are not informed about the consultation process, the constituencies covered, and the outcomes. Such information should offer meaningful pointers they can relate to and focus on for a better product and for doing justice to their mandate.

Article by: Tilman Friedrich, August Benchtest