TIRI MASAWI
Namibia’s Upstream Petroleum Unit (UPU) is already involved in shaping the country’s oil and gas industry, but there is still no clear public answer on who the unit reports to.
The unit, housed in the Office of the President and headed by Kornelia Shilunga, is already involved in reviewing Namibia’s Local Content Policy for the oil and gas industry.
But Parliament is still debating the law that would formally define the UPU’s powers, functions and accountability.
This has opened a bigger question: who is responsible for the decisions the unit makes before that law is passed?
A senior government official, and two State House sources told Namibia Business Review that even people within the Presidency remain unclear about the unit’s reporting structure.
“There are standing challenges between the Unit and the reporting of the Unit currently. Most people are still confused on how the unit’s reporting structure works and whether their concerns are addressed by the staff in the President’s office or under the ministry of mines,” a source said.
Another source said the arrangement could create challenges, particularly with the UPU reviewing the Local Content Policy while the Ministry of Industries, Mines and Energy remains responsible for the sector.
The UPU is headed by Shilunga, who serves as special adviser and head of the unit. She is deputised by Carlo McLeod.
Shilunga this week declined to discuss the unit’s operations or reporting structure.
“This is not something I am authorised to speak about. I would advise you to speak to the Minister of Industries, Mines and Energy. He is better placed to deal with such an issue,” Shilunga said.
‘THIS IS WRONG’
Leader of the Opposition in the National Assembly Imms Nashinge said the UPU should not be making decisions before Parliament finalises the Petroleum Amendment Bill.
“It is definitely wrong for the unit to be making decisions and I am not surprised that even people within the Presidency are unsure of how the unit reports,” Nashinge said.
He said key decisions in the sector should currently remain with the minister who is empowered under the existing legal framework.
“Currently all the decisions should be made by the minister who is constitutionally empowered to decide on key issues of the industry. All we need is to empower our minister who is equally empowered to deal with all the issues that the unit will supposedly deal with. We need to believe in government structures rather than create new ones,” he said.
Nashinge also questioned who would account to Parliament for decisions taken by the UPU.
“What will happen if they make decisions before the law, who will account for these decisions? Will their decisions bind? All these are questions that we must ask and are important because they impact a lot of things,” he said.
He said the proposed changes could create problems whether the Bill is passed or rejected.“It is going to create problems when the law passes or doesn’t pass. Obviously as IPC we are not supporting that law. What will happen if they make decisions before they law, who will account for these decisions? Will their decisions bind?” Nashinge said.
He also questioned the UPU’s place within the public service structure.
“We should follow procedures – deal with the law making process then we can move to the unit if it is ever necessary. It is a typical chicken and egg situation,” he said.
‘NO AMBIGUITY’
Industries, Mines and Energy Minister Modestus Amutse rejected the suggestion that there is confusion over the UPU’s reporting channels.
He said he remains responsible for key decisions in the sector and that the UPU works closely with his ministry.
“The fact that Mrs Shilunga asked you to speak to me must show that there is a system in place. If the official opposition is raising such issues then they do not understand the way things operate. There is no clash on decisions or an unclear channel between the ministry and the unit,” Amutse told Namibia Business Review on Monday.
Amutse said the UPU’s work on reviewing the Local Content Policy is coordinated through the ministry despite the unit being housed under the Presidency.
“The unit works closely with the ministry and works under the president. It is unfortunate that I cannot dwell much on this issue because I am the one who tabled the Bill and discussions are still ongoing but I can assure you that we work well,” he said.
He said the UPU can continue with its processes without waiting for Parliament to pass the Bill.
“We are not dealing with the law itself and the processes for the unit can go ahead independently without waiting for the law,” Amutse said.
PRESIDENCY DRAWS LINE
Presidential spokesperson Jonas Mbambo said the UPU is an administrative and technical structure within the Office of the President.
“Its role is to support the Government through policy coordination, technical advice and the review of the institutional and regulatory framework governing the upstream petroleum sector,” he said.
Mbambo said the proposed legislative amendments are intended to formally define the UPU’s statutory mandate, functions and accountability arrangements.
Until that process is concluded, he said, existing petroleum legislation remains applicable and statutory powers continue to be exercised by the authorities currently empowered under the law.
“The Unit does not exercise powers that have not yet been conferred upon it by legislation,” Mbambo said.
He said the UPU’s involvement in reviewing the Local Content Policy should not be viewed as taking over the responsibilities of the ministry.
“Its involvement in reviewing the Local Content Policy should therefore be understood as part of a coordinated Government process and not as a substitution for, or encroachment upon, the statutory responsibilities of the line ministry,” he said.
Mbambo said questions about the UPU’s reporting structure and accountability have already been raised in the National Assembly and directed to Prime Minister Elijah Ngurare.
“It is appropriate that the Prime Minister be allowed to provide the comprehensive Government response in Parliament. We trust that this provides useful context in the interim,” he said.
PM AVOIDS DIRECT ANSWER
Ngurare last week also avoided directly answering questions on whether the UPU exists in the President’s Office and whether it takes orders from the President.
“It is common knowledge that we have the upstream unit and it is common knowledge that they are special advisors that we have been made aware of, including the statement I have said before in this house. I am surprised if the honourable is not aware but if this is about the Bill we can discuss,” Ngurare said.
‘ACCOUNTABILITY MUST LEAD’
Public policy analyst Ndumba Kamwanyah said the UPU’s work must be guided by legal authority, accountability and transparency.
“The UPU cannot take precedence over Parliament or existing law. Until Parliament legally establishes or formalises the unit and defines its powers, its activities must remain within the authority provided by existing laws and the executive structures,” Kamwanyah said.
He said the Government should explain what legal instrument currently gives the UPU authority to perform its functions.
“There should be no assumption that proposed legislation already gives the unit powers. The reporting structure should be clear and publicly understandable,” he said.
Kamwanyah said that if the UPU falls outside the normal Public Service Commission structure, the Government should explain its legal status.
“The government should explain its legal status, who appoints and supervises its officials, who receives its reports, and who is ultimately accountable to Parliament,” he said.
He said the uncertainty around the UPU’s operations and reporting channels creates an accountability gap.
Kamwanyah also questioned the legal basis for the UPU’s review of the Local Content Policy.
“If the Cabinet has already approved the policy and the line ministry has the statutory mandate over the sector, the UPU should explain the legal basis on which it is reviewing or changing that policy. Advising the President is different from exercising powers legally assigned to the responsible ministry,” he said.
He said the UPU currently has no independent statutory mandate to account directly to Parliament.
“The government should state this clearly rather than leaving Parliament and the public to infer the reporting arrangements,” Kamwanyah said.
For now, the government maintains that the UPU is supporting the executive and is not exercising powers that have not been given to it by law.
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