The nuances of the phrases ‘consultation’, ‘in consultation with’, ‘after consultation with’ versus ‘others’: an analysis of the Namibian High Court and Supreme Court decisions

Abstract A statutory provision often requires an official or a body entrusted with a function or power to perform the same either ‘in consultation with’, ‘with the concurrence of’, ‘after consultation with’, or ‘on the recommendation of’ another official or a body. A statutory provision may also require an official to consult an official, a body, or interested or affected persons before exercising or performing a power or function. (The phrases will collectively be referred to as ‘the Phrases’.) The Phrases are often used in statutes to give effect to government policy objectives; however, they are often misunderstood or not applied correctly by policymakers, lawmakers, and those responsible for implementing laws. The incorrect interpretation or application of the Phrases can result in the invalidity of a decision or action made or taken, increased legal costs, delays in the implementation of government policy objectives, and potential harm to those affected by the decision or action. The purpose of this article is to identify the meaning of and the effect of non-compliance with the Phrases, through an analysis of Namibia’s High and Supreme Court decisions. The objective is to guide and caution policymakers, lawmakers, and implementers of laws to make informed decisions when selecting a phrase for inclusion in a proposed law or when making a decision that is subject to any one of the Phrases.