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The Erosion of Judicial Independence in Namibia

By: Michael Saddam Amushelelo

The notion of a truly independent judiciary in Namibia appears to be crumbling, and I have witnessed it firsthand.

When exactly it fell off the pedestal, I do not know, but like Humpty-Dumpty, it is broken.

In the span of nearly seven months, I found myself imprisoned, awaiting a trial that was nothing more than a charade.

During my incarceration, I found myself subjected to isolation for a period of a month and 15 days, not as a result of any violation of the law or Correctional Services Act, 2012 (Act No. 9 of 2012), but as an attempt to break my spirit and teach me a lesson.

Ironically, two judges, Christiaan and Shivute (the wife of the Chief Justice at whose house I had demonstrated) found grounds to justify my detention, ultimately revealing that the judicial system I once believed in was broken.

Their reasons have since been found wanting as you know.

Our judiciary is really showing alarming signs of compromise.

You hear it in the movies, but one never really applied one’s mind to it when prisoners would say: “I’m in here for nothing, man”, or “It’s just some crooked police officers and judges trying to settle scores” and we would all just sigh.

I can now see that there may be some truth to the claims made by inmates.

As I contemplate the actions of the judiciary, I can’t help but question the stories and actions of the Anti-Corruption Commission (ACC) and the Prosecutor-General’s Office (PG) in cases such as Fishrot.

It’s becoming increasingly difficult to believe in the ethical conduct of these institutions.

For starters, there’s just no ethics, really.

Take, for example, Olivia Martha Imalwa, who is tasked with prosecuting the same individual who, at one point, played a role in her professional growth.

Her repeated denial of bail to this individual raises questions about her impartiality.

Another worrisome aspect is the career progression of those handling these cases.

Individuals who were once regional court magistrates have now ascended to the position of High Court Judge, their decisions affecting the lives of the accused.

Duard Kesslau, for example, was a regional court magistrate when he refused a bail application filed by former Minister of Fisheries and Marine Resources Bernhard Essau and his son-in-law, Fitty Hatuikulipi.

He’s now a High Court Judge.

David Munsu was at the same level when he denied “Fitty” bail.

He is now a fulltime judge.

The same can be said about O’Brien Sibeya who was an acting judge when he ruled in favour of Imalwa’s POCA bid after having read the application of some 6925 pages in 15 minutes.

He is now a fulltime judge.

Let’s look at Esi Schimming-Chase, who quickly ascended to act in the Supreme Court.

She wrote a judgement that was overshadowed by Masuku’s dissenting judgement yet, she is at the Supreme Court where the likes of Judges Tomassi, Masuku, Ndauendapo, Geier etc, who are more senior, have never acted.

This raises concerns about their suitability for such roles.

Nepotism and cronyism also cast a long shadow over the judiciary.

Graduates from institutions like the United Nations Institute for Namibia and the University of Warwick who now serve as judges and legal professionals contribute to a perception of favoritism within the system.

This includes, Chief Justice, Peter Shivute, Deputy Chief Justice Petrus Damaseb, PG Martha Imalwa, Judge Naomi Shivute, Judge Johanna Sailonga, Magistrate Diina Uusiku, Boois Uusiku and Judge Collins Parker – their lecturer.

In the corridors of justice, these familiar faces and relationships seem to hold considerable influence.

The ongoing appointment of Jakobus Muller as an acting judge raises questions about the selection process.

This individual has been serving as an acting judge for an extended period, contrary to the spirit of the Namibian Constitution.

Can one be an acting judge for 10 years non-stop? Or can one be permanently a temporary or acting appointee?

Muller was 65 when he first became an acting Judge and he’s still an acting judge at 75 – way above 70.

My Portuguese speaking in-laws would say acqui Namibia! (Here is Namibia).

But there is more, Muller was a consultant at Conradie & Damaseb and secondly Boas Uusiku was at Shikongo Law Chambers where Muller’s wife worked.

Yet in a matter in which James Hatuikulipi challenges Muller and Tileinge Damaseb, Boas Uusiku confidently ascends to the bench and delivers a strange judgement.

Apparently, an unopposed matter should have been brought ex-paste.

At the same time someone on a briefing watch gets into the judgement.

A briefing watch is where a lawyer sits in court to observe and advise a client but the client is not a party to the case.

The concern about the independence of the judiciary in Namibia extends beyond individual cases to the broader operations of the legal system. And I am not the only one who finds disturbing issues with this Judiciary.

The issues have been documented by concerned stakeholders such as the Afrobarometer, Eben de Klerk and the “Lords of Law”.

The point is our judicial system has exhibited a worrisome pattern of making incorrect judgments, from cases related to gay marriages to my own situation and that of the Fishrot accused.

Even when the legal framework is later corrected, individuals unjustly affected remain in detention.

The system is broken and  as citizens, we must continue to hold the judiciary accountable for its actions, fostering a climate of transparency and fairness.

As you lie possum in prone to what you call “fishrot “today, tomorrow it is you. After all, they imprisoned activists on Independence Day.

Why are the courts denying bail to accused persons who pose no danger to society, whilst they give bail to individuals accused of robbery, murder and other serious crimes?

As Martin Luther King Jr once said “Our lives begin to end the day we become silent about things that matter.”

Ultimately, the judiciary is our last line of defense against injustice and allowing it to be compromised places us all at risk.

Our silence on this matter amounts to complicity in the corruption of our justice system.

Michael “Saddam” Amushelelo is a Social Activist.

The views expressed in this article do not necessarily reflect those of The Villager editorial board or its owners.

 

 

 

 

Michael Amushelelo

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