25 February 2004

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.

Society of Advocates of Namibia