News And Press Releases
Beatrix De Jager Appointed As A Permanent Judge Of The High Court
The Society of Advocates is pleased to congratulate one of its members, Beatrix De Jager, on her appointment on 26 June 2024, as a Permanent Judge of the High Court of Namibia. This prestigious appointment is a testament to her sharp legal acumen, commitment to justice, and contribution to the legal profession.
Judge De Jager joined the Society of Advocates after completing her pupillage during August 2009. She practiced as a member of the Society of Advocates for 14 years before her appointment on 16 January 2024 as an Acting Judge of the High Court, and thereafter as a Permanent Judge of the High Court.
During her time as a member of the Society of Advocates, she has made significant contributions to the Society of Advocates by mentoring pupils in the pupillage programme, and served on the Bar Council as a member for several years including as Vice President during 2020 and 2021.
The Society of Advocates takes great pride in Judge De Jager's elevation to the bench and extends its warmest congratulations on this well-deserved honor.
We wish her every success in this new chapter of her career as a Permanent Judge of the High Court of Namibia.
A TRIBUTE TO LOUIS COENRAAD BOTES
It is never easy losing one of your own, especially not when he has been around for 35 years.
Louis was admitted as an advocate in the High Court of Namibia on 4 October 1985. He was appointed as a state prosecutor and worked in prosecution until he decided to join the bar. He completed his pupilage under retired Judge Gerhard Maritz and signed the members’ roll, on 11 July 1988.
Until his passing, Louis was not only our most senior member but was also the member who has been with us for the longest.
Louis never applied to be conferred silk status although he clearly deserved it. He made a conscious choice to remain a junior member, our most senior junior because for him it was not about the status. It was more about the practice of the law and being in that privileged position to be able to speak on behalf of others who would not be able to afford the services of senior counsel. For him it was a true calling to help others. He wanted to be able to continue helping, especially those living outside living Windhoek, in the smaller towns who had cases in the Magistrates Courts and Regional Courts. He liked traveling to the small towns outside Windhoek to help those appearing in the lower courts who would otherwise not have the benefit of being represented by such a senior advocate. A silk practice would inevitably have made this more and more impossible.
Louis was our criminal specialist, the only remaining one who practiced mostly in the criminal courts. But you definitely underestimated him at your own peril in a civil matter. He was an incredibly intelligent man with a vast knowledge of the law.
He was also a very good cross examiner. He was quite something to watch – a little theatrical maybe, especially when he was busy with cross examination, and he knew that he was slowly but surely destroying your witness. It was an art with him and truly entertaining to watch. This was not a fluke. Louis was known to be extremely tactical – you need that to be good in cross examination. He was also very meticulous in his preparation and, of course, his photographic memory, was an added advantage.
Apart from being an excellent advocate, Louis was also an exemplary member of the Bar. He mentored 3 pupils and has been an examiner and moderator for years for our pupilage exams. Louis continued to contribute to the Bar by serving on Council during 2022 and 2023 at a time when he was already struggling with his health and general mobility. In 2006 he also made his contribution to the Judiciary by serving as an acting judge.
Louis was a generous man. Many a client, instructing attorney, opposing counsel, as well as those who make our workspace comfortable, can attest to that. He was never slow to reduce his fee when a client could not pay or throw his fees into the pot to close on a settlement where settlement was the right thing to do. He often “tipped” the general workers at his chambers for just doing their job, simply to show his appreciation for what they did to make his work-life easier. Never once did he publicize his generosity.
To Louis’ family – this job of ours, takes us away from our family – it steals family time. We know that our family’s suffer, especially our children. We thank you for your sacrifice. Your sacrifice was a gain to the profession and those who he loved serving. We know you will miss him but hope that you will be comforted by all the memories of the time you spent with him.
To Ilse, Louis’ wife, we thank you for what you meant to him. Your companionship and your dedication to making sure he is comfortable and taken care of until the very end meant a lot to him.
A big tree has fallen. The shade he provided will be missed by those he has for so long served to the best of his ability.
Rest in peace Louis.
Society of Advocates Namibia
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
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
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 2020The 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
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 2020The 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
STATEMENT ISSUED BY THE SOCIETY OF ADVOCATES OF NAMIBIA ON THE CURRENT SITUATION IN ZIMBABWE
MEDIA RELEASE | 12 AUGUST 2020The 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
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 2020The 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
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
PRESS STATEMENT ISSUED BY THE SOCIETY OF ADVOCATES OF NAMIBIA ON THE ATTACK ON THE INDEPENDENCE OF THE JUDICIARY
PRESS RELEASE | 28 February 2018The 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.
PREVIOUS PRESS RELEASES
Last month the Namibian Supreme Court, in the De Wilde case, in interpreting Article 4 of the Namibian Constitution, ruled that a child born in Namibia to non-Namibian citizens would be a Namibian citizen by birth where the child’s father or mother was ordinarily resident in Namibia at the time of the birth. In so doing the Supreme Court was exercising its powers in terms of Article 79(2) of the Constitution to interpret, implement and uphold the provisions of the Namibian Constitution. This clear constitutional interpretation of Article 4(1) should have been the final word on the topic. Read More
The Society of Advocates of Namibia ("the Society") has noted certain public criticisms of judgments and judges of the High Court of Namibia ("the Court"). This is an unfortunate trend, moreover where such criticism is neither accurate nor fair, and in circumstances where, as the Society has already stated in an earlier press-release, the judiciary cannot enter into public controversy and cannot reply to criticism levelled in this manner. Read More
In a recent media release issued by the Minister of Trade and Industry, Dr Hage Geingob ("the Minister"), criticism was levelled against an order handed down by the High Court of Namibia earlier this month concerning an application initiated by Wal-Mart Stores Incorporated, and to which application the Minister was joined as a respondent. Read More
The Society of Advocates of Namibia notes, with grave concern, recent developments regarding the Southern African Development Tribunal (“the Tribunal”). Read More
The Society of Advocates of Namibia condemns the blatant disregard for the rule of law, and the repeated human rights abuses, occurring in Zimbabwe. The rule of law and respect for human rights form the cornerstones of any democratic state and the undermining thereof carries negative consequences not only for the people of Zimbabwe, but also for the Southern African region.
The Society is concerned about the Namibian Government's silence as to the present situation in Zimbabwe, and the absence of an express and outright public condemnation of the highly questionable manner in which Mr Robert Mugabe has purportedly been re-elected as Zimbabwe's president. Whilst diplomacy has its place in international affairs, a time comes when it is imperative to speak-out against obvious and manifest wrongs, lest it be seen as a tacit condonation thereof.
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 R HEATHCOTE
PRESIDENT
INTERNATIONAL COUNCIL OF ADVOCATES AND BARRISTERS ATTACKS ZIMBABWE'S VIOLENT SUPPRESSION OF LAWYERS
The International Council of Barristers and Advocates (ICAB), of which the Faculty of Advocates is a member, has today (20 July 2007) condemned the continuing campaign of intimidation and violence being waged on Zimbabwe's lawyers by Robert Mugabe's Zanu-PF regime.
ICAB has expressed its concern after lawyers were subject to physical violence and intimidation by police in Zimbabwe.
In early May, Beatrice Mtetwa, the President of the Law Society of Zimbabwe, and other lawyers were beaten by police for protesting against the arrest of two colleagues.
Mrs Mtetwa and several others were arrested following a rally outside the High Court in Zimbabwe's capital Harare, and were subjected to further assaults by the police which left them requiring medical treatment. The lawyers had been attempting to protest against the arrest and imprisonment of Andrew Makoni and Alec Muchadehama who had been representing imprisoned opposition activists.
In late June, a group of lawyers who attempted to assemble at the High Court in Bulawayo and to carry out a peaceful march to deliver a petition of protest to the Governor of Bulawayo were threatened and harassed by armed riot police.
In 2004, a group of senior barristers from ICAB visited Harare to enquire into the threats to the rule of law and to the judiciary and legal profession which were occurring in Zimbabwe.
In their Report, ICAB concluded that:
Lawyers and magistrates had faced violent attacks on themselves and their families
Lawyers for politically unpopular causes had been attacked or tortured
Senior judge appointments had been subject to political interference
The Zanu-PF party had enforced the removal of politically independent judges
Judges had been removed through psychological and physical intimidation
The government of Zimbabwe picked sympathetic judges to handle sensitive cases
ICAB has highlighted its concerns in a letter to the Law Society of Zimbabwe, the country's Attorney-General and its Chief Justice as well as the Commonwealth Secretary-General.
As Co-chair of ICAB, Mr Roy Martin QC said: "The importance of an independent justice system to a democratic state cannot be overstated, but in several countries we have seen a steady eroding of the impartiality of the courts and the intimidation of lawyers who try to retain their independence."
ICAB is an association of the independent referral Bars of Australia, England & Wales, Hong Kong, Ireland, Namibia, New Zealand, Northern Ireland, Scotland, South Africa and Zimbabwe.
The Faculty of Advocates and other members of ICAB are also signatories of the Edinburgh Declaration Trust which gives advocates and barristers the opportunity to provide practical and financial help to lawyers in Zimbabwe and in other places around the world where the independence of the courts and the ability of the legal profession to practise and organise freely is under threat.
The Trust is named after a Declaration signed in Edinburgh in 2002.
Issued by Beattie Communications on behalf of the Faculty of Advocates For further information, contact Nick King on 01324 602603, mobile 07876 548577
Note:- The Faculty of Advocates comprises Scotland's 460-plus practising advocates and QCs as well as many of the country's judges, sheriffs and academics. Founded in 1532, the Faculty is an independent body of lawyers who have been admitted to appear in the supreme courts of Scotland. Total numbers now stand at over 700. Practising members, of whom one fifth have attained the senior status of Queen's Counsel, handle the most complex criminal and civil cases in the country
The Hon Mr Justice G. G. Chidyausiku,
Chief Justice of Zimbabwe,
Supreme Court of Zimbabwe,
Third Street and Kwame Nkruma Avenue,
Harare,
Zimbabwe.
Dear Sir,
International Council of Advocates and Barristers (ICAB)
I write in my capacity as co-chair of ICAB which is an association of the independent referral Bars of Australia, England & Wales, Hong Kong, Ireland, Namibia, New Zealand, Northern Ireland, Scotland, South Africa and Zimbabwe.
On behalf of ICAB, I wish to express our deep and continuing concern about the treatment of members of the legal profession in Zimbabwe and the threats which appear to exist in your jurisdiction to the rule of law. In the past two months, we have become aware of physical attacks and intimidation by police against members of the legal profession.
In May, we are informed that the President of the Law Society of Zimbabwe and other lawyers who were protesting about the arrest of two colleagues. A number of members of the legal profession were arrested and subjected to further assaults by police which left them requiring medical treatment.
At the end of June, we understand that a group of lawyers who met at the High Court in Bulawayo in order to carry out a peaceful march and to deliver a petition to the Governor were threatened and harassed by armed riot police.
As a senior law officer/member of the judiciary, I am sure that you do not need to be reminded of your duties to the rule of law and to preserve the independence of the legal profession. I therefore hope that in light of these circumstances you and your colleagues will do all that you can to ensure that the rights of the legal profession are protected and that the police and other authorities do not engage in unwarranted acts of violence and intimidation against them.
Yours faithfully,
Roy L. Martin, Q.C.,
Co-chair, International Council of Advocates and Barristers
The Society has learnt with grave concern that 13 accused in the Caprivi high treason trial were released by order of Court yesterday and subsequently re-arrested apparently on charges yet to be formulated. On the face of it, since no lawful basis for arresting and charging such persons has been revealed, such conduct on the part of the Namibian Police would appear to be unlawful and would constitute a serious case of contempt of the High Court's order. We accordingly urge the Government to unconditionally accept the consequences of the Court's order and immediately release the former accused, unless there is a lawful basis for their continued detention.
It has come to our notice that judges of the High Court of Namibia have recently been subjected to severe and unwarranted public criticism. In this context the media has reported that a certain Paulus Kapia yesterday accused the presiding judge in the Caprivi high treason case of intentionally sabotaging peace in Namibia and ignoring the security of the Namibian people. It was also reported that Mr Kapia publicly issued a threat to the effect that Mr Justice Hoff should leave the country.
In our view this constitutes a very serious and unwarranted attack on the independence of the judiciary. Article 78 of the Constitution expressly guarantees the independence of the judiciary and states that "(n)o 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".
Whilst all persons, including Mr Kapia, have the right to freedom of speech in terms of Article 21(1)(a) of the Constitution, such rights must be exercised subject to the law of Namibia and the reasonable restrictions it imposes which are necessary in a democratic society, such as those relating to contempt of court.
There is no doubt in the Society's mind that the utterances of Mr Kapia constitute a sound basis for a charge of contempt of Court and we accordingly urge the relevant authorities to take stern action against him. It is our concern that failure to do so will encourage others to similarly undermine the independence of the judiciary and ultimately its status under the Constitution. This would have the inevitable consequence that the separation of powers and the rule of law, both cardinal values of our Constitution, will be eroded, paving the way for executive domination and the weakening of Namibia as a constitutional state.
ADV R TöTEMEYER
President
Society of Advocates of Namibia
In a recent press report the Right Honourable Prime Minister, Mr Theo-Ben Gurirab is quoted as making a number of allegations about the judiciary to a group of American law students.
Without referring to a single supporting fact, he is quoted as stating, among other things, that the judiciary is in need of reform because it is "lily-white", has been distorted by apartheid, and does not reflect the aspirations of the disadvantaged. He also appears to be critical of the idea of the "Rechtstaat" and the independence of the judiciary.
As there is no factual basis for such remarks, the Society of Advocates is deeply concerned about these comments which indicate that the Prime Minister misconceives the role of the judiciary in a constitutional democracy.
First of all, the Prime Minister has his facts wrong. The judiciary is anything but "lily-white" : in fact, only 2 of the current 10 judges and acting judges of the country's High Court are white and they were all appointed after Independence. The association of the present judiciary with apartheid is therefore unfounded. In addition, the magistracy, which constitutes part of the judiciary, is predominantly black.
Secondly, it is precisely because Namibians fought against apartheid that we adopted a constitution espousing liberal democratic values of which the ideas of the Rechtstaat and the independence of the judiciary are pivotal. As Judge Leon stated in the case, Ex Parte A-G, In Re Constitutional Relationship, 1998 : "Namibia is a Rechtstaat just as South Africa under the apartheid regime was not" (p 299). Furthermore, the interests of the disadvantaged are best protected by an independent judiciary whose main constitutional function is to protect ordinary Namibians from the abuse of power by those in authority.
If Namibia is to be truly modernised, as appears to be the Prime Minister's desire, then it is essential that all of us respect the values and principles underpinning our Constitution and that we resist the temptation to politicise appointment to the judiciary by exploiting the issues of race and apartheid.
It has also been reported in the Republikein of 21 January 2003 that the Right Honourable Prime Minister has stated that the judiciary is the third leg of "Government". If the Honourable Prime Minister indeed has stated this, this amounts to a serious misconception: In terms of Article 1(3) of the Constitution of Namibia, the judiciary is not an organ of Government, but an organ of the State, which should function independently of the executive and the government of the day and the latter's political objectives.
In the aforesaid context it is also disturbing that the Republikein on 20 January 2003 reported the Honourable Deputy Minister of Justice to have stated that the composition of the Judicial Service Commission - on whose recommendation judges are appointed - should be increased to include persons who reflect certain political views. What is particularly disturbing, is that the aforegoing can only be achieved if the Constitution of Namibia is amended.
The founding-fathers of our Constitution have safeguarded the independence of the judiciary by determining in Article 85 of the Constitution of Namibia that the Judicial Service Commission shall consist of the Chief Justice, a judge appointed by the President, the Attorney-General and two members of the legal profession nominated by professional bodies representing the interests of the legal profession in Namibia. The composition of the Judicial Service Commission prevents the politicising of appointments to the judiciary thereby securing the separation of powers inherent to a constitutional democracy and particularly the constitutional dispensation in Namibia. An intended change in the composition of the Judicial Service Commission to achieve the ends referred to by the Honourable Deputy Minister, would cause the very same mischief which the founders of our Constitution sought to prevent. This will have a severe negative impact on one of the cornerstones of the Rechtstaat and the constitutional democracy of Namibia.
R TöTEMEYER
PRESIDENT
SOCIETY OF ADVOCATES OF NAMIBIA
1. The Society of Advocates of Namibia deplores the comments made by Mr Paulus Kapia concerning the Chief Justice of Namibia in his capacity as the Secretary of the Youth League of the ruling party, at a recent meeting held at Keetmanshoop.
2. Mr Kapia is reported to have suggested that the Chief Justice should not have sanctioned the ruling of the Supreme Court of Namibia in the recent appeal of The Government of the Republic of Namibia and 2 Others versus G K Mwilima and 127 Others, as he is an employee of the Namibian Government. Mr Kapia reportedly went on to suggest that the Chief Justice should not be paid his salary in order that such funds be used to cover the legal costs of the accused in the treason trial (as a sanction for his concurrence in the ruling).
3. Mr Kapia clearly overlooks the fact that both the Supreme Court and the High Court Benches, which were especially enlarged, resulted in a situation where ultimately all 8 judges involved agreed upon the essential outcome of that case and for the need for state funded legal representation for the treason trialists.
4. This judgement now under attack by Mr Kapia was a closely reasoned judgement reflecting a great degree of consensus arrived at by the five Supreme Court judges, upholding in most part the approach of the three judge High Court panel.
5. Mr Kapia significantly (and understandably) does not take issue with any of the reasoning upon which the Court based its rulings. Yet he sees fit to launch his unbridled and completely baseless attack on the Chief Justice, thus undermining the independence of the judiciary and the rule of law in Namibia, especially as he does so in his capacity as an office bearer of the ruling party.
6. The Namibian Broadcasting Corporation surprisingly saw it fit to give considerable prominence to Mr Kapia's uninformed and baseless views without placing them in their proper context as would be expected by the national broadcaster in accordance with standard journalistic ethics and standards.
7. Unfortunately Mr Kapia's widely published remarks have not as yet been repudiated or even qualified by his party's leadership in government. The Society of Advocates calls upon the Minister of Justice to make it clear to the Namibian public that his Ministry and the Government of the Republic of Namibia disassociates itself from Mr Kapia's statements which clearly serve no other purpose but to undermine the rule of law in Namibia and demonstrate such grave disrespect and contempt for the respected head of the judiciary.
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 |