Celebrating 34 Years of Judicial Independence – Opinion

As Namibia celebrates the 34th anniversary of its independence, it is also an opportunity to celebrate the judicial independence the country has enjoyed for the last 34 years.

Among others, Namibia’s Constitution guarantees the independence of the courts and prohibits the executive and the legislature, as well as members of the public from interfering with judges in the execution of their duties.

It is worth taking a look at a handful of cases where the Supreme Court has exercised its authority under the Constitution.

In Sikunda v Immigration Selection Board, the Supreme Court unanimously set aside a decision by the then minister of home affairs, Jerry Ekandjo, to deport Jose Domingos Sikunda to Angola.

The deportation decision was taken in terms of the Immigration Control Act (section 49) on the grounds of Sikunda purportedly being a threat to national security because of his association with the Angolan opposition party Unita.

The immigration act provides for a six-member security commission to make recommendations for deportation to the minister.

The court unanimously declared the minister’s decision unlawful. Acting judge of appeal the late Bryan O’Linn declared this was in part because it was based on a recommendation of an improperly constituted commission.

The commission was made up of four members when it made the recommendation, instead of the prescribed six.

The Constitution makes no exceptions for a lesser quorum, rendering the minister’s decision unlawful and infringing on the principle of the rule of law.

THE LAW AND PARLIAMENT

The courts have mainly relied on the principle of the rule of law in article 1(1) of the Constitution to rule on matters that fall outside administrative justice.

One such case involved the speaker of the National Assembly, Peter Katjavivi, indefinitely suspending two sitting MPs, Bernadus Swartbooi and Henny Seibeb of the Landless People’s Movement.

In a unanimous judgement defending the Supreme Court’s jurisdiction to hear cases involving the legislature, appeal judge Dave Smuts dismissed the speaker’s contention that the courts had no jurisdiction to hear matters on the suspension of parliamentarians on the grounds of the separation of powers, as well as the Powers, Privileges and Immunities of Parliament Act of 1996, which empowers parliament to regulate its own affairs.

The court reminded the speaker that the National Assembly remained subject to the principle of legality (rule of law) under the Constitution.

Section 21 of the Powers, Privileges and Immunities of Parliament Act precludes the courts from interfering in proceedings of the parliament’s committee on standing rules and orders.

The speaker reported the two MPs to the committee and argued that as the case was pending before the committee, the court had no authority to entertain it.

The court declared that the act was subject to the Constitution as the supreme law. The effect of the judgement was the reinstatement of the two parliamentarians.

MINISTERS AND MAGISTRATES

Writing for a unanimous Supreme Court in the case of Magistrates Commission of Namibia v Minister of Justice, the late South African chief justice Pius Langa, sitting as an acting judge of appeal, ruled that the failure by then justice minister Pendukeni Iivula-Ithana to act on the commission’s recommendation to dismiss a sitting magistrate constituted an illegality and was contrary to her obligations to defend and uphold the Constitution.

The commission had recommended the dismissal of a magistrate after she was found guilty of misconduct. The minister argued she had the discretion to accept or refuse the recommendation.

On the contrary, section 21 of the Magistrates Act expressly imposed on the minister a duty to enforce the commission’s recommendations on dismissals.

The court ruled that not only did the minister not have the statutory authority to refuse to accept the commission’s recommendation, she was obliged to act on the recommendation.

A COMPARATIVE CASE

Interestingly, Botswana’s highest judicial tribunal, the Botswana Court of Appeal, had occasion to interpret presidential powers in the appointment of judicial officers of the country’s superior courts in the case of Law Society of Botswana v President of Botswana.

At issue was whether article 96 of that country’s constitution, which confers powers on the president to appoint High Court judges on the recommendation of the Judicial Service Commission (JSC), was peremptory (obligatory) or directory (advisory).

This was after former president Ian Khama refused to appoint University of Botswana senior lecturer Omphemetse Motumise to the High Court as advised by the JSC.

Khama argued the constitution imposed no obligation on him to enforce the JSC’s recommendations, and that he was under no obligation to provide reasons for his refusal to enforce the recommendations.

Writing a unanimous ruling for a full bench of the court, judge of appeal Isaac Lesetedi rejected the president’s contentions and ordered him to execute the JSC’s recommendation.

The court ruled that in the absence of any compelling justification for his refusal to execute the recommendation, his arguments could not prevail.

Soon afterwards, Motumise was appointed as a judge of Botswana’s high court. 

In conclusion, my perspective is supported by the latest World Economic Forum (WEF) Global Competitiveness Index Report, which ranked Namibia 29th out of 137 countries with a rating of 5,3 out of 7 on judicial independence.  

• * Utaara Hoveka is a student of law. This article is written in his private capacity.