28 July 2016
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
8 August 2011
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
22 June 2011
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
1 June 2011
The Society of Advocates of Namibia notes, with grave concern, recent developments regarding the Southern African Development Tribunal (“the Tribunal”). Read More
1 July 2008
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
20 July 2007
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
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.
ADV R TöTEMEYER
President
Society of Advocates of Namibia
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.
R TöTEMEYER
PRESIDENT
SOCIETY OF ADVOCATES OF NAMIBIA
July 2002
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.