January 2003

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.