OFFICE OF THE JUDICIARY
STATEMENT BY THE JUDICIAL SERVICE COMMISSION REGARDING RECENT ALLEGATIONS MADE AGAINST THE NAMIBIAN JUDICIARY BY A MEMBER OF PARLIAMENT
An unwarranted and unfounded attack upon the Judiciary and its independence was made by a Member of Parliament in the National Assembly on 19 April 2022.
Whilst the performance of the Judiciary and fair criticism of court judgments are legitimate matters of public debate, a number of statements were made which have no factual foundation and are misleading.
For the record, the Judicial Service Commission (the JSC) makes the following statements in reaction to the allegations:
(a) Cases in both the High Court and Supreme Court are allocated by the heads of those courts depending on the availability of judges, their expertise and the roster in the High Court which governs which judge is on duty for civil applications or trials or criminal matters. The allegation that allocations are preceded by a ‘policy decision’ concerning a case is entirely without any substance at all. (b) The race and gender or ethnic origin of a specific judge has nothing to do with the allocation of cases. The suggestion that white acting judges are appointed and ‘black judges removed from cases because they may be seen as partisan’ is without any foundation and truth. Understandably, no examples were cited because this does not arise.
(c) The statement that white judges are used by the court to ‘appease the international community’ is completely without any basis. The race of judges is not a factor in the independence of courts.
(d) The statement made that legal practitioners will not be appointed as judges because if they have personal differences with one or more members of the JSC is also baseless. Understandably, no instances were cited in support of this baseless statement.
(e) The assertion of an ‘established culture’ that acting appointments are (made) from law firms because they are ‘connected’ with the ruling party is also without factual basis. Of the 26 acting appointments to the High Court for the period 2015 to 2022:
(i) 11 were magistrates or former magistrates;
(ii) 4 were/are members of the Society of Advocates and not from law firms;
(iii) 3 were not working at law firms at the time of being appointed and worked or previously worked for the office of the Prosecutor-General, Ombudsman or a parastatal;
(iv) 1 is a former judge from outside Namibia; (v) 1 is a retired practitioner;
(vi) 1 is a retired judge; and
(vii) 5 were drawn from 5 separate law firms – 2 of whom were appointed as permanent appointments after acting as judges. Only 1 of the 5 law firms in question previously had another member of that firm who had coincidentally acted as a High Court judge.
Lists of all acting appointments to both the High Court and Supreme Court are attached to this statement.
(a) The insinuation of being connected to the ruling party as a prerequisite for acting appointments is entirely baseless.
(b) The assertion that judges of appeal are assigned cases ‘depending on which firm is instructed on a specific issue’ is also entirely devoid of any truth. The identity of specific law firms (and there are invariably two sets in each appeal and sometimes more) has absolutely no bearing on which judge of appeal is allocated which case. Understandably no examples were cited because this simply does not happen.
The judiciary in Namibia has built a reputation for its independence which has been widely acknowledged.
The JSC and the Office of the Judiciary (the Office) are committed to maintaining and enhancing the high standards of independence achieved. The JSC and the Office welcome fact-based debate about the role of the judiciary.
Unsupported innuendo and assertions without any factual foundation concerning the judiciary and baseless attacks upon the integrity of judges only serve to undermine the constitutional principle of the independence of the judiciary and the Constitution itself.