- LPM notes the recent appointments of two judges, Rakow and Sibyea, to the High Court Bench. We congratulate them and wish them well in the execution of this mammoth task.
- Nevertheless, the LPM finds it imperative to comment on these appointments with specific regard to the following Articles of the Constitution of the Republic of Namibia:
- Article 1(2): “All power shall vest in the people of Namibia who shall exercise their sovereignty through the democratic institutions of the State,”
- Article 80 (3): “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 due consideration of the foregoing articles, it is required that the appointment of judges be open to public scrutiny and approval. If it is not, then we shall afford the Courts the assistance to protect their independence, dignity and effectiveness by objecting to denial of such transparency.
- Justice Ismael Mohammed further reminds us that the Constitution is a mirror of the aspirations of the nation. Ettiene Mureinik wrote in 1994 that: “The constitution is a bridge to take a nation from oppression to liberation, from injustice to the rule of law, from inequality and division to unity, from apartheid to justice. In other words, constitutional adjudication must keep the ideals of the constitution and the constitutional state in mind. The judgments of the courts must be contextualised. It has to be the vehicle to attain the high values and expectations of the constitution.”
- Given that, recently the Chief Justice Shivute broke every rationale and legal connection between the Constitution and the High Court by the above captioned assertion of Mureinik which is appropriate for any judge to be reminded of.
High Court Judges must execute their function with such care to restore the trust lost in the Namibian Judiciary. In fact, Shivute’s judgment in the Itula election challenge was a major “retreat from the legal order established by the Consitution,” to take leave from Justice Chaskalson.
- The Namibian Judiciary has eroded its standing in society over the past years, and has sought to promote to the bench, in consort with SWAPO, some of the weakest former Magistrates as Judges of that Court.
- Chief Justice Mohamed made the following remarks in an address to the International Commission of Jurists in Cape Town on 21 July 1998:5 ‘[S]ociety is … entitled to demand from Judges fidelity to those qualities in the judicial temper which legitimize the exercise of judicial power. Many and subtle are the qualities which define that temper. Conspicuous among them are scholarship, experience, dignity, rationality, courage, forensic skill, capacity for articulation, diligence, intellectual integrity and energy.
- More difficult to articulate but arguably even more crucial to that temper, is that quality called wisdom, enriched as it must be by a substantial measure of humility, and by an instinctive moral ability to distinguish right from wrong and sometimes the more agonizing ability to weigh two rights or two wrongs against each other which comes from the consciousness of our own imperfection.”
- It is these core values and virtues we are desirous to obtain from judicial officers in the Court system. Unfortunately, too often Namibia has witnessed the stark decline from these value driven constitutionalist ethos that enhance the genuine independence of the judicial system.
As a Parliamentary Party, we will keep the Judiciary and its performance at the highest level of public scrutiny, and in so doing zoom in on every individual judge and his and her work, for the protection and advance of our democracy.
LPM NOTES THE FOLLOWING ABOUT THESE TWO JUDGES:
Historical Background of the two recently appointed High Court Judges
In the case Christian v Namfisa, I 2232/2007, which was referred back to the High Court on 6 October 2019.
Judge Sibeya allowed a legal practitioner Mr Nekweya in the capacity of advocate while the title advocate has been repealed in 1995. There is no such title as advocate in Namibia. Judge Sibeya’s ignorance or wilfulness in the misrepresentation is of serious consequence to litigants.
The legal practitioners act only allows misnamed “advocates” to practice as legal practitioners.
Judge Sibeya in the same case stated that he has been appointed by the registrar to act as case managing judge without notification and while only the Judge President may do so. Mr Sibeya had in fact been appointed by a previous judge who was recused.
The rules of the court require that an appointed judge shall duly inform the litigants for good reason: in a democracy judges are open to scrutiny.
We therefore hope that Judge Sibeya will be able to pass the test of a fair trial, which he has not been able to do so in the above mentioned case.
Madam Justice Rakow has been appointed by the disciplinary committee of legal practitioners as an initiator and as prosecutor in a complaint against RubenPhilander of LorenzAngula Inc and. Rudolf Denk and Namfisa. She withdrew the complaint at the hearing without the knowledge of the complainant.
These are matters that are of importance for the public to note.
The LPM will leave no stone unturned to see the due implementation of the Constitution, and will keep a close look at the Namibian Judiciary, which refuse to be publically criticised by any person on legitimate concerns of their work. It is our hope that Namibia will one day have a competent court system, which we currently lack.
MR. IVAN SKRYWER