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News And Press Releases

STATEMENT ISSUED BY THE SOCIETY OF ADVOCATES OF NAMIBIA (‘THE SOCIETY’) CONCERNING THE ISG RISK SERVICES / SURVEY WAREHOUSE REPORT TITLED ‘TRUST IN THE JUDICIARY AND PERCEIVED STRENGTH OF THE RULE OF LAW’ (‘THE ISG / SURVEY WAREHOUSE REPORT’), THE SUBSEQUENT NEWSPAPER ARTICLE IN THE NAMIBIAN SUN NEWSPAPER ON 07 NOVEMBER 2022 (‘THE ARTICLE’) AND THE RESPONSE BY THE OFFICE OF THE JUDICIARY ON 15 NOVEMBER 2022 (‘THE RESPONSE’)

The ISG / Survey Warehouse report

The ISG / Survey Warehouse report addresses a number of important issues. Unfortunately, one issue – the perceptions on alleged corruption in the Judiciary - has taken centre stage. This focus arose from a recent article in the Namibian Sun. This undue focus overshadowed the ultimate conclusions from the ISG / Survey Warehouse report that generally, those legal practitioners who participated in the survey, trust the Namibian Judiciary and that the trust in the competence of the Judiciary is strong.

The ISG / Survey Warehouse report identified several areas which may be of concern. However, it must be borne in mind that the ISG / Survey Warehouse report records and analyses the perceptions of the survey participants (not the entire legal fraternity) based on specific questions which did not allow for an in-depth investigation of the basis upon which the perception is held. Whilst a survey of this nature is a useful tool, it must be accepted that perceptions do not always equate to the truth and may be formed without any knowledge as to the true facts. The Society is committed to engaging with its members, the Judiciary, and other stakeholders in the administration of justice, to understand and, where appropriate, address the matters reflected in the report.

The Namibian Sun newspaper article

Two issues of concern arise from this article. Before discussing these issues, we acknowledge the important rights and responsibilities of the free press to report on any and every matter of public interest, as long as the media does so fairly and as accurately as is reasonably possible. The subjects of the article are certainly matters of significant public interest and of particular interest to the Society. Just as with the matters reflected in the ISG / Survey Warehouse report, the Society will genuinely engage with its members, the Judiciary, and other stakeholders in the administration of justice, to understand and address the matters reflected in the article. However, the Society does not believe that the reporting was fair.

The first concern lies with the article’s reports of ‘harrowing tales’ of 22 lawyers who do not wish to be identified. Some of the more sensational allegations are of judges accepting of bribes. The judges, and those who bribed them, are not identified. The article does not present any facts to allow any investigation or appropriate response to these far-reaching, very serious and very harmful allegations. The right to fairly and reasonably criticise a judge or the Judiciary avails any person. However, such criticism must be accurate and fair, especially bearing in mind that the Judiciary ordinarily cannot enter into public controversy or reply to criticism. The mentioned criticism, in the respects highlighted above, was not underpinned by facts and, in the Society’s view, was not fair or reasonable. In this sense, the Society believes the article infringed the dignity of the Judiciary.

Secondly, the article relayed certain content of the ISG / Survey Warehouse report. However, the article did not address the context and limitations of the ISG / Survey Warehouse report, or the numerous positive results documented in it, including that the survey participants generally trust the Judiciary and its competence. In this sense, the Society believes the article was not as balanced as it ought to have been on such an important issue.

The response from the Office of the Judiciary

One of the key concerns raised by the Judiciary in its response to the ISG / Survey Warehouse report and the subsequent reporting related mainly to the framing of this question in the ISG / Survey Warehouse report: ‘In your opinion, over the past year, has the level of corruption [in the country] or [in the judiciary] increased, decreased or stayed the same?’. The Judiciary’s main concern with this question appears to be that the question presupposes that legal practitioners believed there was corruption within the Judiciary before the survey was conducted and proceeded from that premise without first determining whether that premise is correct. The Society agrees with the Judiciary’s concern. From the ISG / Survey Warehouse report it is clear that the baseline for the question was the results of a survey amongst members of the public. Although the source of the baseline is explained in the report, the Society believes the accuracy of this baseline, derived from a survey of the public, should have been specifically explored amongst members of the legal professions with an explicit question. The concern is compounded by the fact that the word ‘corruption’ is open to multiple interpretations. With these clarifications, participants could have supplied more accurate responses to the ultimate question, which could have informed a more accurate analysis.

The Society raised this concern with the authors of the report. This is their answer:

“In the report, Figure 8, (p. 17), we ask the respondents to reflect on How many judges do you think are involved in corruption or haven’t heard enough about them to say? To which 23% of respondents answered “none”; 21% “some”; 2% “most”; and the majority, 55% answered, “I have not heard enough about them to say”. From Figure 8 it is clear: most legal practitioners do not know how many judges are involved in corruption. This was a baseline question. Furthermore, our findings in Figure 18 of the report are overwhelmingly positive, i.e., showing that most legal practitioners do not support the notion that judges take bribes.

All these questions about corruption are standard – and, uncontroversial questions used in corruption studies globally, including in Africa. It was not a study of the “state of the judiciary”, i.e., a substantial undertaking about the factual performance of the institution based on irrefutable statistics and measurement. Instead, we were interested in learning how those who work in the system view the system. It is thus a study of perception, not hard, cold facts. This is an important distinction which was unfortunately lost in the debate. Perceptions, although not necessarily based on the truth, assist in understanding how citizens relate to and transact with their institutions and for those institutions to understand those perceptions and to find ways to address them.”

No report of a corrupt practice involving a Judge of the High or Supreme Courts has been made to the Society by any of its members. Had such report been made, the Society would have swiftly brought this to the attention of the head of the Court in question and taken the necessary steps.

The response from the Office of the Judiciary welcomed constructive criticism and reaffirmed the Office of the Judiciary’s commitment to the delivery of excellence in the provision of its services. The response further indicated that the Office of the Judiciary takes note of some of the survey participants’ answers ‘to more neutrally framed questions and will be engaging in further outreach to relevant stakeholders to improve service delivery within its constraints and is receptive to constructive criticism in that process’. Very recently the High Court did just that by arranging a two-week workshop where various stakeholders could engage with judges and with each other on various matters affecting the administration of justice. The engagement allowed for open, constructive and frank discussions. Indeed, the Society welcomes and encourages such positive engagement.

However, the Society believes the response from the Office of the Judiciary was overly critical of the ISG / Survey Warehouse report’s authors. The kind of survey undertaken by ISG and Survey Warehouse is necessary in any democratic society. Whilst the Society recognises the limitations of the survey and the report and the concern with the question on the perception of corruption, which, in turn, triggered the article in the Namibian Sun, the Office of the Judiciary always stands in a position of authority and is indeed so perceived by the public at large. Necessary democratic debate should never be stifled by an overly critical response.

The way forward

One of the Society’s important objects is the protection of the Namibian Constitution, the fundamental rights and freedoms enshrined therein and the principles of democracy, the rule of law and justice for all. The Judiciary plays a cardinal role in ensuring that the Namibian Constitution is upheld (including that the rights guaranteed and protected by Article 12 are given proper effect to), and in ensuring that our democracy is protected, that the rule of law is upheld and to hold accountable the organs of State. The Society has confidence in the Judiciary. Consistent with the Constitution of the Society of Advocates, the Society has in the past, and will continue in the future to support the Judiciary’s efforts at ensuring the proper and efficient administration of justice in Namibia, as required by the Namibian Constitution.

Adv. N Bassingthwaighte - President
SOCIETY OF ADVOCATES OF NAMIBIA

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PJ v R (PIETER) HENNING

It is with great sadness that we have learnt of the passing of our colleague and friend, Adv Pieter Henning SC on Saturday, 7 November 2020.

Namibia has lost a true champion of the Namibian Constitution and the rule of law. His invaluable contribution to our Society, the advancement of the administration of justice and legal practice in Namibia as well as his mentorship to so many who benefitted from their interactions with him, shall sorely be missed and remembered for many years to come.

May his soul rest in eternal peace and let us all draw inspiration and be guided by the principle that he lived by, namely that the upholding of the rule of law in Namibia is not only a means to an end, but an important end in itself.

We extend our heartfelt condolences to his family and friends.

PRESIDENT
SOCIETY OF ADVOCATES OF NAMIBIA

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STATEMENT ISSUED BY THE SOCIETY OF ADVOCATES OF NAMIBIA ON A MEDIA REPORT CONCERNING STATEMENTS ATTRIBUTED TO THE SWAPO PRESIDENT, DR HAGE GEINGOB

MEDIA RELEASE | 20 OCTOBER 2020

The Society of Advocates of Namibia ("the Society") has noted a recent alarming media report concerning statements attributed to the SWAPO President, Dr Hage Geingob.

The media reported, inter alia, that the President – at the launch of SWAPO’s campaign for the upcoming Regional Council and Local Authority elections –

(a) expressed his “concern” about “white Namibians” registering themselves “in big numbers” to vote in the said elections;

(b) stated that “white Namibians” have “declared war” against the ruling party, “despite SWAPO making sure white people enjoy peace, unity and comfort”;

(c) stated that “I have noted that and I will not forget that. People are declaring war against Swapo. Swapo who made them enjoy peace and unity, enjoy their comforts. The comforts they have enjoyed all this time and you declare war against Swapo. I heard you”.

Increased participation by Namibian citizens in the democratic process should be encouraged and not decried. Of greater disquiet is what could be construed to be some form of veiled caution directed against those persons who do not signal their support for the ruling party. This approach is fundamentally at odds with the Namibian Constitution. Article 17 of the Namibian Constitution entrenches the rights of Namibian citizens to –

(i) participate in peaceful political activity intended to influence the composition and policies of the Government; and

(ii) join political parties and to participate in the conduct of public affairs, whether directly or through freely chosen representatives. Further, the statements attributed to the President –

(a) are irresponsible, disappointing and unbecoming, moreover in a democratic State founded upon the principles of democracy, the rule of law and justice for all;

(b) may serve to incite racial disharmony, have no place in a democratic Namibia and conflict with the constitutional guarantee of equality and freedom from racial discrimination as embodied in Article 10 of the Namibian Constitution;

(c) undermine the founding principles enshrined in the Preamble of the Namibian Constitution, which recognise the equal and unalienable rights of the individual to life, liberty and the pursuit of happiness, regardless of race, colour, ethnic origin, sex, religion, creed or social or economic status, and which unequivocally records that we, the people of Namibia “will strive to achieve national reconciliation and to foster peace, unity and a common loyalty to a single state” and “committed to these principles, have resolved to constitute the Republic of Namibia as a sovereign, secular, democratic and unitary State securing to all our citizens justice, liberty, equality and fraternity”.

The President is called upon to, at all times, respect the Namibian Constitution and its founding principles.

Adv. G Narib
President
Society of Advocates of Namibia
20 October 2020

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STATEMENT ISSUED BY THE SOCIETY OF ADVOCATES OF NAMIBIA ON A MEDIA REPORT CONCERNING STATEMENTS ATTRIBUTED TO THE MINISTER OF DEFENCE

MEDIA RELEASE | 14 SEPTEMBER 2020

The Society of Advocates of Namibia ("the Society") has noted a recent alarming media report concerning statements attributed to the Minister of Defence, Rear-Admiral (retired) Peter Hafeni Vilho. The media reported, inter alia, that the Minister of Defence – at a military event held in Karibib – “singled out white people and accused them of being greedy” and further stated that there exist “groups of people who were obsessed with the idea of the black government failing” (“the statements”).

If the media report is accurate, the statements –

(a) are irresponsible, disappointing and unbecoming of a Cabinet Minister in a democratic State founded upon the principles of democracy, the rule of law and justice for all;

(b) serve to incite racial disharmony, have no place in a democratic Namibia and conflict with the constitutional guarantee of equality and freedom from racial discrimination as embodied in Article 10 of the Namibian Constitution;

(c) undermine the founding principles enshrined in the Preamble of the Namibian Constitution, which recognise the equal and unalienable rights of the individual to life, liberty and the pursuit of happiness, regardless of race, colour, ethnic origin, sex, religion, creed or social or economic status, and which unequivocally records that we, the people of Namibia “will strive to achieve national reconciliation and to foster peace, unity and a common loyalty to a single state” and “committed to these principles, have resolved to

constitute the Republic of Namibia as a sovereign, secular, democratic and unitary State securing to all our citizens justice, liberty, equality and fraternity”.

This matter merits further investigation. The relevant authorities are called upon to take the necessary steps on that score and to keep the Namibian public informed of the outcome.

The Minister of Defence is called upon to, at all times, respect the Namibian Constitution and its founding principles.

Adv. G Narib
President
Society of Advocates of Namibia
14 September 2020

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STATEMENT ISSUED BY THE SOCIETY OF ADVOCATES OF NAMIBIA ON THE CURRENT SITUATION IN ZIMBABWE

MEDIA RELEASE | 12 AUGUST 2020

The Society of Advocates of Namibia ("the Society") has noted recent alarming reports by the Zimbabwe Lawyers for Human Rights (www.zlhr.org.zw) concerning the situation in Zimbabwe, including of a marked increase in human rights violations; acts of torture, cruel, inhuman and degrading treatment of civilians (involving human rights defenders, political activists and ordinary citizens); abductions and the targeting of human rights lawyers. The Society condemns any such conduct.

Such reports should be of great concern to any country, such as the Republic of Namibia, established as a sovereign, secular, democratic and unitary State founded upon the principles of democracy, the rule of law and justice for all.

On 06 August 2020, the Namibian Government’s Ministry of International Relations and Cooperation published a document titled “Statement on the Situation in Zimbabwe”. It was nothing of the sort. Instead, the document noted that Namibia “respects the established SADC institutions” and that Namibia “will respect and abide by those SADC protocols”. The document reflects a disappointing deflection by the Namibian Government to “SADC institutions”.

During 2008, the Society publicly spoke out against human rights abuses in Zimbabwe and then already lamented the Namibian Government’s silence and the absence of an express and outright public condemnation of events in Zimbabwe. The alarming reports demand that the Namibian Government urgently and properly inform itself of the current situation in Zimbabwe and thereafter adopt a public and principled standpoint, consistent with the democratic values and respect for human rights forming the cornerstone of the Namibian Constitution. The Society reiterates that the Republic of Namibia is established as a State founded upon the principles of democracy, the rule of law and justice for all. These fundamental principles should inform and permeate regional diplomacy.

Adv. G Narib
President
Society of Advocates of Namibia
12 August 2020

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PRESS STATEMENT ISSUED BY THE SOCIETY OF ADVOCATES OF NAMIBIA ON MEDIA RELEASES BY THE NAMIBIAN DEFENCE FORCE CONCERNING ALLEGED “THREATS MADE BY INDIVIDUALS AGAINST THE STATE” AND “THE SECURITY SITUATION IN THE COUNTRY AFTER ELECTIONS”

PRESS RELEASE | 21 January 2020

The Society of Advocates of Namibia (“the Society of Advocates”) has taken note of two media releases issued by the Namibian Defence Force respectively dated 26 November 2019 and 02 December 2019 (jointly, “the media releases”).

Constitutionally, the Namibian Defence Force is established by Act of Parliament, in order to defend the territory and national interests of Namibia. The Namibian Police Force is similarly established by Act of Parliament, in order to secure the internal security of Namibia and to maintain law and order.

These important and distinguishable constitutional mandates must not become blurred. It is not the ordinary function of the Namibian Defence Force to secure the internal security of Namibia or to maintain law and order. The use of the Namibian Defence Force (including any portion or member thereof) for police functions such as the preservation of the internal security of Namibia; the maintenance of law and order; the investigation of any offence or alleged offence; the prevention of crime; and the protection of life and property, can and may only occur as prescribed in terms of the applicable provisions of the Defence Act 1 of 2002 and is, and should not be, the norm.

The November 2019 media release describes the Namibian Defence Force as “the guarantor of national security, sovereignty, peace and stability”. The December 2019 media release contains a similar statement and intimates “an appropriate response from the Namibian Defence Force” in respect of “any unlawful acts of violence which causes loss of or threatens the lives of the Namibian people; destroys government and individuals’ properties, restricts the movements of the Namibian people, and renders government ineffective in the provision of goods and services; threatens the integrity of the State”.

The media releases do not auger well for the maintenance of the distinct mandates of the Namibian Defence Force and the Namibian Police Force. Quite apart from whether or not such press releases are appropriate in the first place, the Namibian Defence Force should remain cognizant of the fact that the Namibian Police Force (which issued no similar press releases at the time) is and remains responsible for securing the internal security of Namibia and maintaining law and order.

Adv. G Narib
President
Society of Advocates of Namibia

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1. The Society of Advocates of Namibia has noted, with deep concern, yet another report in the local news media alleging that a civilian had been shot dead by a member of the Namibian Defence Force engaged in operation “Kalahari Desert”.

2. The Republic of Namibia is established as a sovereign, peaceful and safe democratic State founded upon the principles of democracy, the rule of law and justice for all. The security forces exist and function in this context.

3. Article 118 of the Namibian Constitution established the Namibian Defence Force to defend the territory and national interests of Namibia. Article 115 of the Constitution established the Police Force to secure the internal security of Namibia and to maintain law and order. These discrete functions sanctioned by the Namibian Constitution emphasise that the general objectives of the two forces differ. For this reason, generally soldiers should not be engaged in performing policing duties. This is particularly so, where they use excessive force, including engaging in wrongful shootings, constituting a direct violation by members of the security forces of the human rights of citizens enshrined in our Bill of Rights.

4. The Society of Advocates of Namibia accepts that it cannot rely implicitly on unverified facts published in the media. However, it has come to the attention of the Society in the past months of other similar incidents where allegations have been made that members of the security forces have used excessive force, including the shooting of civilians, whilst conducting crime prevention operations in the country. It is appreciated that the security forces generally have a very difficult time in countering increased criminal conduct, and that the citizens of this country would generally support effective measures being taken by the security forces to combat crime in order to make their neighbourhoods safer. However, this does not detract from the duty of the Society of Advocates of Namibia, in upholding the important values contained in the Namibian Constitution, to speak out against human rights abuses where they occur.

5. It is the Society of Advocates of Namibia’s view that the official response of the Honourable Minister of Defence does not inspire confidence that the Namibian Defence Force has learnt its lessons from this past conduct. The Society also disagrees with the Honourable Minister’s statement that the taking of videos of the Namibian Defence Force members is prohibited. The Society can find no basis in law for this statement.

6. The Society of Advocates of Namibia therefore publically calls upon the Honourable Minister of Defence and the Honourable Minister of Safety and Security to take all steps necessary to ensure that members of the Forces are properly trained, particularly where soldiers are engaged in policing activities. The desired objective is to conduct lawful crime prevention operations with the minimum use of force permitted by law, and that such members be generally sensitized to the sanctity of life.

Adv. AW Corbett, SC
President
Society of Advocates of Namibia
3 October 2019

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PRESS STATEMENT ISSUED BY THE SOCIETY OF ADVOCATES OF NAMIBIA ON THE ATTACK ON THE INDEPENDENCE OF THE JUDICIARY

PRESS RELEASE | 28 February 2018

The Deputy Judge-President of the High Court, Mr Justice Angula, handed down a recent judgment interdicting the implementation of various rulings of the Valuation Court relating to the payment of land tax.

It has come to the attention of the Society of Advocates that the Deputy Valuer-General made a statement on national television to the effect that Judge Angula, in so making this ruling was biased, should have recused himself from the matter and ought not to have presided as judge in the matter. Whilst fair criticism of a judgment is permissible, an unjustified attack on the integrity of a judge is not. As far as the Society is able to ascertain, there has to date been no public repudiation of this statement by the Minister of Land Reform or any other Government official.

Article 78(2) of the Namibian Constitution provides that "the Courts shall be independent and subject only to this Constitution and the law". Article 78(3) protects this independence by providing that "no member of the Cabinet or the Legislature or any other person shall interfere with Judges or judicial officers in the exercise of their judicial functions, and all organs of the State shall accord such assistance as the Courts may require to protect their independence, dignity and effectiveness, subject to the terms of this Constitution or any other law".

In his address at the opening of the legal year earlier this month, his Excellency Dr Hage Geingob commented that "as the judiciary, you are tasked with the responsibility of being guardians and servants of the law of Namibia, and this is a task you are expected to carry out with patriotism, dedication and integrity". The Head of State further remarked that "we pride ourselves on the independence of our judiciary".

The Society views the scandalous attack by the Deputy Valuer-General on the integrity of the Deputy-Judge President in a very serious light. It is not only a violation of the constitutionally guaranteed independence of the judiciary but an attempt by a senior Government official to undermine the independence of the judiciary, rendered more egregious by the fact that the official involved was a party to the Court proceedings.

The Society calls on His Excellency the President, or the responsible Minister, to uphold Article 78 of the Namibian Constitution by publicly distancing government from Mr Thomas's remarks, and confirming that the views expressed violate the constitutional value of the independence of the judiciary enshrined therein.

Adv. G Narib
Vice-President
Society of Advocates of Namibia
28 February 2018


RESOLUTION - BAR CONFERENCE: BELFAST 30TH JUNE 2008


PRESS RELEASE | 01 January 2018

At the World Bar Conference of the International Council of Advocates and Barristers, (ICAB), held in Belfast on 30th June 2008, the Bars of Australia, England and Wales, Hong Kong. Ireland, Namibia, Northern Ireland, Scotland, South Africa and Zimbabwe, being the member Bars of ICAB, unanimously resolved:

  • To deplore the defiance by the Government of Zimbabwe of its human rights obligations under domestic and international law;
  • To call upon the secretariats of the Southern African Development Community, the African Union and the United Nations to initiate all steps necessary to procure the return of the rule of law to Zimbabwe and respect by the Government of Zimbabwe for the rule of law;
  • To condemn the detention without trial of our colleague Eric Matinenga, Member of Parliament of Zimbabwe and leader of the Harare Bar and the defiance of the High Court order for his release granted on an urgent basis by the High Court on 14th June 2008;
  • To call upon the members and secretariat of the Southern African Development Community to ensure that independent legal observers are permitted to be present in all courts in Zimbabwe throughout the trials of members of the legal profession who are being prosecuted for alleged offences;
  • To demand that the lawyers of Zimbabwe be permitted without intimidation or penalty to perform their duty to represent and defend their clients and ensure the entitlement of their clients to basic human rights;
  • To demand that the magistrates of Zimbabwe be permitted without intimidation to independently perform their duty's in accordance with the rule of law and to ensure the entitlement to basic human rights;
  • To demand that the Attorney General of Zimbabwe independently and impartially exercise his powers to uphold the rule of law.

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HOW CAN I GET MORE INFORMATION?

Further enquiries of any nature will be answered by:

The Secretary-General,
‘Society of Advocates of Namibia’
at telephone number ++264 (0)61 231 151
or via e-mail : socadv@mweb.com.na