Heathcote Warns Namibia Investment Promotion Bill Could Discourage Investment
Date: February 2, 2026
Senior advocate Raymond Heathcote SC has raised serious constitutional and economic concerns over Namibia’s proposed Investment Promotion Bill, warning that, if enacted in its current form, the legislation could discourage foreign investment, create legal uncertainty and undermine the rule of law at a time when Namibia urgently needs economic growth and job creation.
Heathcote’s legal opinion was commissioned by the Namibia Institute for Economic Policy (NIEP) following concerns raised by Namibian investors and other affected parties. The opinion was submitted to the Ministry of International Relations and Trade as part of ongoing consultations.
Heathcote emphasises that his mandate was not to criticise any individual or institution involved in drafting the Bill. He also notes that the legislation has not yet been approved by Parliament, the Attorney General or the President.
Constitutional concerns
Central to Heathcote’s opinion is Article 99 of the Namibian Constitution, which provides that foreign investments shall be encouraged in Namibia subject to the provisions of an Investment Code to be adopted by Parliament.
Heathcote argues that the Constitution deliberately requires an Investment Code rather than an ordinary Act of Parliament and that the distinction has important legal implications. In his view, an Investment Code would require a different and more stringent process intended to ensure broader national consensus on foreign investment policy.
He therefore contends that attempting to introduce an Investment Promotion Act instead of an Investment Code would fail to meet the specific constitutional requirement contained in Article 99. He describes this as a constitutional default that has continued for more than 35 years since independence.
His opinion concludes that the Bill, if enacted in its current form, would be unconstitutional and could discourage rather than encourage foreign investment.
Concerns over ministerial discretion
The opinion also raises concerns about the extent of discretionary powers that would be granted to the trade minister.
According to Heathcote, the Bill would allow important investment rules to be determined through regulations, directives, guidelines and other subordinate measures. He argues that some of these measures may not be required to be published in the Government Gazette.
The Bill refers repeatedly to “this Act”, while the definition of that term includes directives and guidelines. Heathcote warns that this could create a situation in which investors face requirements that are not sufficiently clear, accessible or predictable, potentially including criminal penalties for non-compliance.
He argues that such a framework would create a “permission-based” regime, replacing a rules-based system with administrative uncertainty. In his view, an investment environment in which rules are opaque, changeable and subject to administrative discretion could deter rational foreign investors.
Affirmative action and equal treatment
Heathcote also questions the Bill’s proposed reliance on Article 23 of the Constitution, which permits affirmative action measures aimed at addressing social, educational and economic imbalances.
While acknowledging that affirmative action measures may be introduced through legislation, he argues that such measures cannot constitutionally be applied selectively to foreign investors when equivalent requirements do not apply to Namibian businesses.
The opinion further argues that selective treatment of foreign investors could be inconsistent with Namibia’s obligations under international customary law and international investment agreements, which require foreign investors to be treated no less favourably than domestic investors in similar circumstances.
Consultation and investor confidence
The proposed legislation has undergone several iterations in recent years, with stakeholders raising concerns that certain provisions could increase bureaucratic barriers and weaken investor protections. Critics have also cautioned that the legislation could affect general property rights and constrain both domestic and foreign investment.
Heathcote questions the consultation process surrounding the Bill, describing what he considers a “draft first, consult later” approach. He argues that this is inappropriate for legislation with such significant constitutional and economic implications.
The concerns are particularly significant given Namibia’s need to attract investment, create employment and support economic growth.
The government's modernisation objectives
The proposed Investment Promotion Bill is intended by government to modernise Namibia’s investment framework, which has previously been described as outdated.
In August 2023, then trade minister Lucia Iipumbu said the Bill was intended to modernise the country’s investment framework and strengthen equal treatment between domestic and foreign investors.
Iipumbu also highlighted the potential for regulations to support innovation and reduce barriers to business productivity, including through new applications such as e-inspections.
She said government was also seeking a collective approach to strategic investment, under which the minister could enter into performance agreements with strategic investors. Skills development, she indicated, could be leveraged against economic concessions or incentives granted to strategic investors.
NIEP's position
NIEP commissioned Heathcote’s opinion in response to concerns from Namibian investors and affected parties and has submitted it as a contribution to the ongoing policy discussion.
The Institute supports evidence-based policymaking that safeguards Namibia’s national interests while creating an enabling environment for sustainable investment, economic growth and job creation.
The legal opinion does not allege wrongdoing by any individual or institution, and the Investment Promotion Bill remains subject to the parliamentary and constitutional processes required before it can become law.
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