Radical changes in the legal fraternity have taken place over the past year. The judiciary is finally fully independent from the Ministry of Justice with its own budget and its own infrastructure. Senior court reporter Roland Routh spoke to Chief Justice Peter Shivute about this and other issues.
New Era Weekend (NEW): Why are Namibia’s courts battling huge piles of case backlogs?
Peter Shivute (PS): How long is too long? Despite what many people assume, there is not a single international rule on how long cases should take. Each case must be considered on its own merits, but the following general “rules of thumb” may be helpful.
In normal – not complex – cases, two years is considered to be reasonable. Beyond a duration of two years per court level, the case may be closely examined to see if the national authorities exercised due diligence in the process.
‘Priority cases’ comprise cases that require quick resolution to be effective, such as labour disputes involving dismissals or unpaid wages, restraint of trade, compensation for victims of accidents, police violence cases, cases where an applicant is elderly or their health is critical, and cases related to relations between children and parents.
In complex cases, a longer time than two years may be considered to be reasonable, but in those cases, the courts tend to pay close attention to periods of inactivity to see if there were excessive delays.
A case in point is our Namibian high treason case, which lasted for more than a decade. Cases may be delayed as a result of one or both parties’ own behaviour having contributed to such delay. These are merely general aggregates of cases. Though helpful, they can become more of a hindrance than a help.
After all, an average person might reasonably expect their simple traffic case to be resolved in a shorter time – say two months. And two corporate titans in complex civil litigation might reasonably expect their duel to last more than two years.
NEW: The long delays are often attributed to a lack of resources. What is being done in this regard?
PS: Since the Office of the Judiciary was established on 31 December 2015, the facilitation of the implementation of activities tailored towards tackling the backlog of cases and the lack of courtrooms was set in motion and remains high on the agenda.
NEW: Other than lack of courtrooms and magistrates, what other challenges are the Judiciary facing?
PS: Challenges faced by the magistrates’ courts, are amongst others, the added responsibility and extra duties performed by it, through the more than 30 various functions. These services are provided by the magistrates’ courts countrywide on behalf of 11 ministries, offices and agencies.
Therefore, these agency services which are rendered to the public by the magistrates’ courts lay hold of the time, resources and staff performing these services. Such resources could have been utilised to bring – especially – criminal court matters to finalisation.
To name but a few of these specific services are revenue collection, issuing of meat export permits, issuing of permits for the importation of household pets, registration of political parties, issuing of liquor licences, etc.
NEW: Could you give us an overview of the successes the Judiciary has achieved so far since becoming independent?
PS: The opening of the legal year during February 2016 has proven to be historic. Historic, because for the first time since Independence, all three the judicial benches in the country were fully represented and attended by most of its respective judicial officers, namely, magistrates, High Court and Supreme Court judges. Delight was also expressed at the launch of the very first “Aspirant Judges Training Programme”, with its main objective being a pioneering intervention aimed at grooming qualifying magistrates and legal researchers for possible appointment as High Court judges.
The achievements of the Judicial Case Flow Management System, as well as the Court Connected Mediation, have yielded a 100 percent finalisation rate of all civil matters.
Great satisfaction has been expressed by the Chief Justice with some of the ongoing developments in the magistrates’ courts, i.e. the installation of digital recording systems in the courtrooms, which have yielded results, as trials are now expedited as opposed to the former longhand technique.
NEW: What are the benefits of being independent?
PS: As a country, Namibia stands to benefit immensely from the establishment of the Office of the Judiciary. The development is a milestone in the country’s legal history. It puts Namibia on the map and on par with older democracies that have truly independent and functioning judiciaries.
For the first time in the country’s history, the legal fraternity and the public have the benefit of dealing directly with an office responsible for the affairs of the Judiciary.
The new office has clearly outlined and defined objectives of rendering excellent service to all stakeholders and the public. The legal fraternity and the public at large now have the opportunity to better tap into the resources which the judiciary has at its disposal and to benefit from the high performance culture and new work ethic that the Office of the Judiciary endeavours to inculcate in its members.
The establishment of the Office of the Judiciary is meant to strengthen the independence of the judiciary, in line with Article 78(5) of the Namibian Constitution, to provide for the administrative and financial matters of the Office of the Judiciary and to provide for connected or incidental matters.
The overriding reason for the separation of the Judiciary from the Ministry of Justice is to give full effect to the separation of powers and independence of the judiciary, as provided for in our Constitution and to strengthen the administration of justice. Because the judiciary is self-administering, it will set priorities to ensure that courts are run professionally, so as to renew the public’s faith in the administration of justice.
NEW: Will you build more courts now that you have your own budget?
PS: Owing to the need for more courtrooms, the venue at the Windhoek Correctional Facility, previously used for the high treason trial, opened its doors and now accommodates two fully functional criminal court rooms, including judges’ chambers. These courtrooms have been named the Ohangwena and Otjozondjupa Courts. These courts hold convenience for inmates, held in close proximity, as well as providing a solution to the shortage of courtrooms and judges’ chambers experienced at the High Court, Main Division, Windhoek.
Two new fully functional courtrooms have been erected at the Rehoboth Magistrate’s Court. The first of its kind, in that the construction of the said courtrooms consisted mainly out of pre-fabricated walls and materials. The Rehoboth courtrooms have recently been issued with its certificate of fitness and are thus ready for occupation to become fully operational. The said courtrooms include an office each for the presiding magistrate and support staff.
Another pre-fabricated courtroom is set to be erected in Windhoek at the Windhoek Magistrate’s Court, situated at Mungunda Street, in the near future, as a result of the success of the ones in Rehoboth. Plans are also diligently underway to construct two prefabricated magistrate’s courts in Okahao and Ohangwena.
At the rate the completed constructions and the intended construction is going, good progress is expected and the alleviation of the backlog of cases, as well as the shortage of space is soon to be reduced by a significant measure.
NEW: Do you envisage a bursary scheme to attract more people to the legal profession?
PS: Already in December 2015, the “Aspirant Judges Programme” was rolled out in an attempt to persuade law graduates to pursue a career as judicial officers in government, as opposed to the normal route taken by most of becoming practicing lawyers. The Office of the Judiciary is actively engaging law graduates to consider making this a preferred legal career path, as is evident from the recent intake of more than ten newly appointed legal researchers/judges’ assistants attached to judges’ chambers.
The Office of the Judiciary envisages appointing a legal researcher or judge’s assistant to each permanently appointed judge to form part of the judge’s staff compliment in the judge’s private chambers. Thus, the office is creating an alternative career choice for the law graduate to consider. The grooming benefits of having spent two to three, or more, years attached to a judge’s chambers should prove invaluable to any fit and proper legal professional.
In future, the Office of the Judiciary may choose to partner with local institutions and request them to customise and tailor-make a bursary package for students, who specifically wish to pursue a legal career in the public service.
NEW: Are the staff of the judiciary accountable to the Public Service Commission, and if not, to whom?
PS: The Judiciary Act 11 of 2015 stipulates that the Permanent Secretary is to be the “accounting officer” of the Office of the Judiciary, subject to the directions of the Chief Justice.
Section 2 of the said Act states, as follows: The Public Service Act and the regulations and directives made thereunder apply to the administration of the Office and to staff members only in so far as such provisions, regulations and directives are not inconsistent with the provisions of this Act, and such provisions, regulations and directives may not derogate from any power, duty or function conferred upon or entrusted to the Office, the Chief Justice, or the Permanent Secretary by or under this Act.