April 21 2004

PRESS RELEASE

MAGISTRATE DENIED LEAVE AND PAY AFTER

CHALLENGING EMPLOYER’S UNCONSTITUTIONAL ACTS

1 As a vigorous advocate for judicial independence, NSHR is once more alarmed at insidious but systemic Zimbabweanization of not only the socio-economic and political, but also judicial, system in this country. The Zimbabweanization of our judicial system, as seen in the ongoing erosion of judicial independence and circumvention of its effectives, becomes even more evident in what amounts to influencing intimidation of independence-minded Namibian judicial officers, most of whom are white and or “foreign” judges, magistrates, prosecutors and lawyers.

“Judicial independence means that judges and magistrates can decide cases before them without fear or favor, based on the law and the facts of a particular case. With an independent judiciary, cases will be decided on their merits. All litigants know that their case will be decided according to the law and the facts, not the vagaries of shifting political currents or the clamor of partisan politicians. Moreover, one cannot have checks and balances without an independent judiciary to protect every citizens' individual liberties and to prevent a tyranny of the majority”, NSHR executive director Phil ya Nangoloh says.

2 NSHR has recently expressed grave concern at verbal attacks directed by high-ranking Government of Namibia (GRN) and ruling SWAPO party officials at “white” and “foreign” judges in general and in particular Justice Elton Hoff following his February 23 2004 unpopular ruling in alleged Caprivi secessionist case. A truly independent judicial is there to protect the rights of those promoting unpopular views, including those representing minority viewpoints or factions and accused of serious crimes.

3 In this particular case, NSHR wishes to draw the attention of both local and international advocates for judicial independence to rancorous victimization and intimidation against Magistrate Walter Mostert (44). Clearly, Mostert victimization sends chilling signals to other independent-minded judicial officers that they would face similar consequences unless they tow the political line.

4 NSHR information shows that Magistrate Mostert is being persecuted through inter alia denial of his annual leave and suspension or threat to suspend his remuneration. This state of affairs amounts to a subtle strategy leading to his constructive dismissal. As a human rights organization, we affirm that like any other employees of his category, Mostert has the right not only to work as a Magistrate but also he is entitled to leisure in terms of Section 39(1)(a) of the country’s Labor Act 1992 (Act 6 of 1992).

Background Information

5 During 2001 Magistrate Mostert, a white Namibian citizen, was unconstitutionally transferred from his permanent post in the Gobabis Magistracy to the Oshakati Magistracy. Consequently, as an aggrieved judicial officer he lodged successful Court cases against impermissible executive interference in judicial affairs. Such interference is evident in the Minister of Justice being legally empowered to ‘hire and fire’ judicial officers in the country’s lower courts, as he pleases. Clearly, this scheme of things runs counter to the provisions Articles 12(1)(a), 78 and 83 of the Namibian Constitution (NC), which guarantee judicial independence.

6 Through an investigation, NSHR reliably established that ever since he challenged the unconstitutionality of his transfer Magistrate Mostert is faced with several vindictive omissions or commissions from certain officials of Ministry of Justice.

7 Mostert’s Court challenges led to the Constitutional Court, the country’s highest court, declaring unconstitutional and ultra vires the Minister of Justice’s powers to ‘hire and fire’, including to transfer, magistrates from one magistracy to another.

8 Basing its interpretation on Articles 12(1)(a), 78 and 83 of the Namibian Constitution (NC), read together with Article 25, the said Court ruled in favor of Mostert and declared that the Minister of Justice has no power to ‘hire and fire’ magistrates.

9 Ipso facto in terms of Article 25 of the Constitution, the said Court also not only impugned the relevant provisions of the law, to wit the old Magistrates’ Court Act 1944 (Act 32 of 1944), in terms of which the Mostert transfer was effected, but also gave Parliament until or before June 30 2003 to pass “appropriate” legislation in accordance with which the Minister of Justice must take action to remedy on or before June 30 2003 the defects in transferring Mostert from the Gobabis to the Oshakati Magistracy. The Court inter alia ruled that:

“(a) … the order of [the Minister of Justice] to transfer [Magistrate Mostert], was ultra vires. This order and transfer which took place in effect, will however remain in force and effective until 30th June 2003, provided that appropriate legislation is passed and action is taken in accordance with such legislation to remedy the defects in the existing transfer, on or before the 30th June 2003”.

(b) [the relevant provisions] of the Magistrates’ Court Act, Act 32 of 1944, is declared unconstitutional. These provisions will however remain in force until 30th June 2003, on condition that legislation correcting the defects is properly passed and gazetted on or before 30th June 2003.”

10 As an apparent move to give effect to the order of the said Court, Parliament in 2003 enacted new legislation inter alia to:

“ensure that the appointment, promotion, transfer or dismissal of, disciplinary steps against, magistrates take place without favor or prejudice, and that the applicable laws and administrative directives in this regard are applied uniformly and correctly”

and

“ ensure that no influencing victimization of magistrates takes place”.

11 The fundamental question lies in whether or not the new legislation, to wit the Magistrates’ Court Act 2003 (Act 3 of 2003)--which is intended to correct the defects contained in the old Magistrates’ Court Act 1944 (Act 32 of 1944)--is both “appropriate” and “properly passed” as envisaged by the Court. This was, in the first place, the fundamental lacuna on which the Court based its order!

12 NSHR believes that there has been legislative mischief or even defiance to the Court order that “appropriate” legislation correcting the defects should be “properly passed and gazetted on or before 30th June 2003”. Because, like the old Act, the new Act does not make requisite provision for truly judicial independence of lower courts.

“In my opinion, the new Act is taking the likes of Magistrate Mostert out of the frying pan into the fire. That Act, without any doubt in my mind, is one of the worst pieces of legislation ever passed by Parliament in the history of our country’s constitutional order, in so as judicial independence is concerned. In certain respects the new Act is even worse than the old one, the defects of which the new Act was intended to correct and remedy. As a matter of fact, the new Act even more than before promotes executive impunity and entrenches executive interference in both the decisional and institutional independence of the judiciary”, argued NSHR Executive Director Phil ya Nangoloh.

13 In terms of Section 13 of the new Magistrates’ Court Act 2003 (Act 3 of 2003), the Minister of Justice is still empowered to ‘hire and fire’ judicial officers on the recommendation of the Magistrates’ Commission (MC) consisting of 7 members. Moreover, with the exception of its Chairperson, who is a High Court judge, only one member of the MC is a magistrate. The remainder is, for all practical purposes, GRN civil servants or even activist politicians who need to have legal qualifications.

“This is tantamount to a male-dominated body empowered to ’hire and fire’ female rights activists in a women’s rights organization. This is not only a red herring but also a serious administrative lacuna”, says ya Nangoloh

14 Hence, the composition of the MC appears to be carefully crafted in such a fashion as to ensure that the status quo ante is substantially and procedurally maintained.

15 The systematic erosion of judicial independence in Namibia has alibis in Zimbabwe. Since the prime targets of Zimbabwean-style land grab drive in Namibia are white farmers, it is logical to conclude that the GRN would also target primarily white Namibian judges, magistrates, prosecutors and lawyers as “allies of white farmers”. Hence, a Zimbabwe-style divide et impera (divide and rule) strategy could be employed to divide the judiciary along racial lines. Several other parallels can be drawn between the situation in Namibia, on the one hand, and that in Zimbabwe since 2000, when Mugabe’s “land reform” campaign started in earnest, on the other:

15.1. Like President Mugabe in Zimbabwe, the GRN has repeatedly demonstrated its disdain for judicial independence and disrespect for the rule of law. This is witnessed by the numerous verbal attacks as well defamation and intimidation of judges who deliver politically unpopular rulings. Such attacks reflect ongoing GRN efforts to rid this country of an independent judicial system and prevent judicial officers to discharge their functions in an impartial and professional fashion.

15.2. On March 17 2004 in Zimbabwe a female Magistrate who ordered the immediate release of a businessman due to irregularities in his arrest, was subjected to verbal attacks by Mugabe officials and other forms of intimidation in Government-controlled media. Despite the said Magistrate’s order, the businessman was rearrested.

In similar case in Namibia on February 23 2004, High Court Judge Elton Hoff ordered the release of 13 persons accused of high treason due to irregularities in their arrest. The 13 were abducted from neighboring Zambia and Botswana between August 1999 and December 2002. However, despite Hoff’s order, the 13 were rearrested and recharged with unspecified high treason charges!

As a consequence of his order for the release of the 13 high treason suspects, Judge Hoff was subjected to a barrage of verbal attacks by Justice Minister Albert Kawana and several other high-ranking GRN and ruling SWAPO party officials (please visit NSHR Press Releases of February 25 2004 and March 19 2004 at www.nshr.org.na).

Currently there is battle raging in the High Court over whether or not Home Affairs Minister Jerry Ekandjo and Prosecutor-General Olivia Imalwa were severally in contempt of court for the non-execution of the February 23 2004 Court order for the release of 13 alleged Caprivi secessionists.

15.3. On February 26 2001 Zimbabwe’s white Chief Justice Sir Anthony Gubbay was summarily ousted and subsequently replaced with a black judge said to be a puppet of President Mugabe. Gubbay was accused of “siding with white farmers” and standing in the way of Mugabe’s “land reform” exercise. NSHR suspects that there are similar moves in Namibia to indirectly force Chief Justice Johan Strydom into early retirement to pave the way for a GRN favorite. In March 2002 the country’s legislation of governing High and Supreme Courts judges was amended to reduce judges’ retirement age from 70 to 65. In terms of such amendments Namibian President Sam Nujoma, a Mugabe ally, is given leeway to decide whether or not judges should retire at the age 65 of 70.

On November 22 2002 Namibia’s Prosecutor-General Advocate Hans Heyman, a no-nonsense white judicial officer, stepped down after the country’s black Attorney General led a GRN campaign pressurizing him into early retirement. The country’s Legal Practitioner’s Amendment Act 2002 (Act 10 of 2002) was tailor-amended to enable an unqualified black female and a reportedly GRN favorite to replace Heyman as Prosecutor General.

NSHR fears that with politically favored Chief Justice and Prosecutor-General the stage could be set for Zimbabwe-style political prosecutions to start in Namibia.

16 NSHR believes that decisionally and institutionally an independent judiciary is a pillar and cornerstone of not only Namibia’s justice system but also its entire constitutional order. Maintaining an independent judiciary enables the courts to make impartial decisions and to keep the Executive Branch in check. However, when public officials and policymakers criticize judges, or threaten removal or other forms of censure, based upon their rulings in specific cases, they attempt to influence future decisions. This undermines the standing of an independent judiciary and jeopardizes Namibia’s democratic constitutional order itself.

“Our judges, magistrates, prosecutors and lawyers make our Constitution work for all of us. We have designed for ourselves a constitutional order based on a system of checks and balances. But you can't have checks and balances without an independent judiciary”, says ya Nangoloh.

17 NSHR calls upon GRN to ensure strict judicial independence in the country in line with both national and international law on the independence of the judiciary.

In case of further enquiries, Please call Phil ya Nangoloh or Dorkas Nangolo-Phillemon at Tel: +264 61 236 183 or +264 61 253 447 (office hours)