The Courts’ Obligation is to Democracy

Namibia’s judiciary is often praised for being independent. Such an assertion is not without merit.

However, anyone concerned about the justice system of Namibia should ask at least two crucial questions: To what end is the judiciary independent? And whose benefit has it served since Namibia became independent in 1990?

Two occurrences in less than a month have prompted us to address the issue of judicial independence and the usefulness of the justice system.
The most recent is the appointment of Zimbabwean judge Rita Makarau to the Namibian Supreme Court.

Makarau’s recommendation by the Judicial Service Commission (JSC) and appointment by president Hage Geingbo had been roundly criticised because she is viewed as an enabler of the authoritarian and violent ruling party in Zimbabwe, Zanu-PF. She was chairperson of the Zimbabwean electoral commission that presided over polls deemed as rigged.

Critics, especially Namibia’s opposition parties, are concerned Makarau brings to the courts a real or perceived pro-government stance that has done a lot to destroy civil society and freedom of expression in Zimbabwe.

Such fears are not unfounded. What has happened to pro-democracy activists and dissenters in Zimbabwe since the rule of Robert Mugabe from 1980 is horrendous by any stretch of the imagination.

But it is easy to blame foreign nationals. Anti-democratic and pro-establishment tendencies have been creeping in around the country and Namibian courts have been complicit in that.

As recently as 20 March, High Court judge Elena Rakow sided with the police’s decision to forbid a protest by the youth over pervasive unemployment and poverty.

The judge dismissed an urgent application by the opposition Namibia Economic Freedom Fighters (NEFF) and its agitator-in-chief Michael Saddam Amushelelo, agreeing with flimsy excuses that the police did not have sufficient resources to oversee public demonstrations on Independence Day and feared for national security.

Clearly, the High Court seems to have no appreciation that anti-establishment protests are crucial to a functional democracy.

The courts ought to order the police to help dissenters express their views publicly and peacefully, no matter who is targeted.

Experience of public protests over the past decades have shown that the Namibian Police often inflamed demonstrators or outright brutalised people using apartheid tactics.

Shamefully, the government continues to use the Public Gatherings Proclamation, AG 23 of 1989, which was installed by the “administrator general for the territory of South West Africa” to make “provision for the protection of the public peace and order at public gatherings”.

Courts seem to have lost touch with the constitutional principles of independent Namibia that human “rights are most effectively maintained and protected in a democratic society”.

Courts routinely rule in favour of the government as well as the rich and powerful, perhaps because of a combination of authority and resources.

Instead, courts must send a message to the powerful forces in the government and the private sector that independence was fought for to seek social justice and economic equity.

Laws like AG 23 should have long been dismissed as unconstitutional.
Courts need to help protect the space for civil society to operate rather than side with the authorities to suppress expression of views, however offensive and robust.

To do that, the appointment of judges needs revisiting to reflect the values, ethos and principles of democracy and justice for all. The composition of the JSC should be reviewed.

The recruitment of judges should be transparent and inclusive of broader society to give effective meaning to judicial independence aimed at serving the people most at the fringes of power.

Currently, the justice system and the judiciary work well mostly for the rich and powerful who can access them.

Our courts need to focus attention on strengthening democracy and social justice if Namibia is to rid itself of structural legacies that continue to breed inequality and abject poverty.

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