Amupanda Warns of Constitutional Challenge to Tax Court Bill

Affirmative Repositioning leader Job Amupanda has expressed concerns that Namibia's proposed Income Tax Amendment Bill could be unconstitutional in its current form. The bill, tabled by Finance Minister Ericah Shafudah, aims to establish a Tax Court within Namibia's High Court system to hear appeals involving income tax, value-added tax (VAT), and other tax-related disputes. Amupanda warned that the bill's provisions may undermine judicial transparency and conflict with existing legislation.

Amupanda's strongest objection is to a provision stating that Tax Court hearings would not be open to the public, which he argues conflicts with Article 12(1)(a) of the Constitution, requiring court hearings to be held publicly. He warned that this provision could allow major corporations to have tax disputes heard behind closed doors, potentially enabling them to avoid tax and dispute Namibia Revenue Agency (NamRA) determinations without public scrutiny.

The proposed Tax Court would be established as a division of the High Court, making the blanket restriction on public access difficult to reconcile with the constitutional framework governing courts. Amupanda also identified a conflict between the proposed legislation and the Judiciary Act of 2015, which assigns administrative responsibilities to the Executive Director of the Judiciary, rather than the Judge-President.

Amupanda criticised the bill's drafting, pointing to a circular definition of the Tax Court and unnecessary provisions governing adjournments and court costs. He argued that these provisions are unnecessary given the existing powers and procedures of the High Court. However, Amupanda made it clear that his criticism should not be interpreted as opposition to the bill's underlying purpose.

Amupanda called for the legislation to be strengthened during the committee stage, while urging a broader national conversation on tax modernisation, particularly as Namibia positions itself around oil discoveries, green hydrogen, and extractive industries. He proposed dedicated transfer-pricing units, a review of double-taxation agreements, and tighter scrutiny of tax holidays granted to multinational corporations.

Amupanda argued that Namibia's tax reforms should also address illicit financial flows and ensure that multinational companies contribute fairly to the country's economy. He concluded that the country cannot afford legislation that corrects one constitutional problem while introducing another, warning that the Namibian taxpayer should not be trapped between executive overreach and unconstitutional secrecy.

The Income Tax Amendment Bill seeks to amend the Income Tax Act of 1981, which previously gave the finance minister powers relating to the establishment of tax courts, judicial appointments, and their closure. The High Court had declared these provisions unconstitutional on 27 March 2020, giving parliament 12 months to remedy the constitutional defects, but Amupanda said the correction had been delayed for years.

Key points

• The proposed Tax Court would hear appeals involving income tax, value-added tax (VAT), and other tax-related disputes.
• Amupanda objects to a provision stating that Tax Court hearings would not be open to the public.
• The bill's drafting has been criticised for circular definitions and unnecessary provisions.