Ministry of Justice and Attorney General
The Ministry of Justice is responsible for the administration of justice through the courts of law. In the carrying out of its responsibilities, the ministry, in keeping with the provisions of Article 10 of the Constitution, strives to provide access to justice for all people irrespective of their colour, race, ethnic origin, sex, religion, creed, or social or economic status.
The ministry carries out its responsibilities through a number of departments, and constitutional and statutory bodies as follows:
1. Directorate: Legislative Drafting is responsible for the scrutiny and final drafting of all bills emanating from various government ministries before they are submitted to the attorney-general for certification prior to their introduction in the National Assembly. In addition, it is responsible for drafting all regulations, subordinate legislation, public notices, and general notices.
2. Directorate: Law Reform Secretariat renders secretarial services to the statutory body, Law Reform and Development Commission. The commission is tasked with the responsibility of reforming all the laws that are incompatible with the Constitution, and recommending new laws.
3.
Directorate: Legal Support Services is responsible for rendering
logistical and administrative services to all the directorates in
the ministry, such as, personnel, finance, the Government
Gazette Office, Master and Registrar of the High Court and
Supreme Court, transport, and stores.
4.
Directorate: Lower Courts is responsible for the smooth running
of magistrate’s courts and regional courts.
5.
Directorate: Legal Aid is a statutory body established by an act
of parliament, the Legal Aid Act, 1990 (Act No. 29 of 1990). As
per the provisions of Article 96(h) of the Constitution, primary
responsibility of this directorate is to render legal aid to
those who cannot afford the services of legal practitioners.
6.
The Office of the Ombudsman was established in terms of the
provisions of Article 89 of the Constitution. This office submits
its reports directly to the parliament annually. Its
responsibilities include investigating cases of maladministration
in the government, parastatals, etc., and instances of violation
of human rights.
Independent
Namibia inherited an apartheid system of administration of
justice. Under this system, it was inconceivable for a black
magistrate or judge to preside over a case where the defendant or
the accused person was white. It was even more inconceivable for
a black magistrate or judge to sentence a white criminal to a
term of imprisonment. In line with this policy, no black person
was appointed to the bench of the high court.
The former police
zone was accorded top priority in the provision of courts in
contrast to the so-called homelands. This meant that no resident
magistrates were available at places, such as, Ovamboland,
Kaokoland, Caprivi, and Kavango. For the first time in the
judicial history of Namibia, two black magistrates were appointed
in January 1990. Even these magistrates were sent to the
so-called Bantustans so that they could preside over cases
dealing with their fellow blacks.
Thus, before
Namibia became independent, blacks were at the receiving end of
the administration of justice. In fact, the colonial Department
of Justice was an important pillar of apartheid in Namibia.
Administration
of Justice in the Immediate Post-independence Period
The Ministry of
Justice, created immediately after the country became
independent, was entrusted with the responsibility of
transforming the then Department of Justice to reflect the values
of a new and independent Namibia. New structures were created,
including those prescribed by the Constitution, such as, the
Office of the Attorney-General, the Office of the
Prosecutor-General, and the Office of the Ombudsman.
A major
recruitment drive was also undertaken to bring in black Namibians
who were previously excluded from playing a role in the
administration of justice. This transition required amendment and
repeal of a number of legislative instruments to give effect to
the new order. Legislative provisions also had to be made in
order to enable the ministry to recruit staff from those Namibian
nationals who had obtained their legal qualifications in
countries other than South Africa. In line with this drive, the
Magistrates Courts Act, 1944 was amended (Magistrates Courts
Amendment Act, 1990).
Work was also
started to double the staff compliment at the magistracies to
facilitate the provision of justice in areas that were neglected
during the colonial era. In the recruitment of staff, due
consideration was given to the implementation of the policy of
affirmative action as stipulated in Article 23 of the
Constitution.
In the provision of facilities for the
administration of justice, neglected areas were targeted for
special attention. Resident staff consisting of magistrates,
prosecutors, legal clerks, and interpreters have been placed in
many areas, such as, Katima Mulilo, Rundu, Ondangwa, Oshakati,
Opuwo, Okakarara, Khorixas, Outjo, Karasburg, Aranos, Lüderitz,
Karibib, and Oranjemund.
In 1990, resident
magistrates were posted at twelve offices. By November 1996,
resident magistrates were posted at twenty-five offices. There
were eighteen magistrates in 1990 and by 1994 the number had
increased to thirty-six. In 1996, this number reached fifty-five.
In keeping with
its prime objective of improving the quality of administration of
justice in the country, the ministry initiated the creation of a
Justice Training Centre within the Faculty of Law of the
University of Namibia. The centre is involved in:
1.
in-service training of magistrates, prosecutors, court
interpreters, and legal clerks;
2.
pre-service training of graduates prior to the assumption of
duty;
3.
training of legal professionals, especially those citizens who
completed their legal studies in countries whose legal systems
are based on common law; and
4.
bridging training for any Namibians who had studied at
institutions whose legal systems were fundamentally different
from the legal system in Namibia.
During the period
under review, a number of court houses were constructed including
the Supreme Court, the Master of the High Court building, and
Katutura magistrate’s court (nearing completion), Oshakati
magistrate’s office, Uutapi magistrate’s office,
Eenhana magistrate’s office, and periodic courts at Ruacana,
Gibion, Mukwe, and Henties Bay. In addition, a number of
courthouses were extensively renovated and expanded. These
include the High Court building in Windhoek, magistrate’s
court in Windhoek, Ondangwa magistrate’s court, Omaruru
magistrate’s court, Oranjemund magistrate’s court,
Otjiwarongo magistrate’s court, Katima Mulilo magistrate’s
court, and Karasburg magistrate’s court.
Promotion and
Protection of Fundamental Human Rights, Promotion of Affirmative
Action, and Emancipation of Women
One of the most
important chapters of the Constitution is Chapter 3 that
guarantees fundamental human rights and freedoms. In keeping with
these provisions of the Constitution, the ministry undertook to
foster a culture of protection of fundamental human rights by
conducting formal courses and workshops were held for
magistrates, prosecutors, and court interpreters on fundamental
human rights. Staff members from the other ministries, such as,
home affairs, defence, and prisons and correctional services have
also benefited from these courses and workshops.
Since 1990, the
ministry’s Law Reform and Development Commission has been
involved in revising all pieces of legislation to bring them in
line with the provisions of the Constitution.
The ministry has
also been at pains to remove from our laws obsolete common law
legal rules and statutory provisions that discriminate against
women. After Namibia became independent, the government acceded
to a number of important international conventions on women, inter
alia, the Convention on the Elimination of all Forms of
Discrimination Against Women. Commitment to the ideals embodied
in this convention is part of the government’s comprehensive
programme to abolish discrimination against women and to promote
equality of sexes, and, in order to give effect to the contents
of the convention, an investigation will continue to remove all
forms of discrimination against women from all the statutory and
common law provisions.
Further, the
government has acceded to a number of international instruments
as follows: International Covenant on Economic, Social and
Cultural Rights; International Covenant on Civil and Political
Rights; Optional Protocol Rights aimed at the abolition of the
death penalty; Convention on the Prevention and Punishment of the
Crime of Genocide; Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment; and Convention on
the Rights of the Child.
In the
implementation of the programme of affirmative action, the
ministry has made significant gains. By July 1995, women
constituted 40% of prosecutors (21% black and 19% white); 20% of
magistrates (18% black and 2% white); 40% of attorneys (27% black
and 13% white); 40% of legal advisors (20% black and 20% white);
21% of legal drafters; 50% of the administrative category (40%
black and 10% white); and 23% of heads of offices (15% black and
8% white). At magistrates offices, women constitute 57% of heads
of offices (27% black and 30% white). The number of women in the
ministry’s professional establishment is still growing. By
31 March 1998, women constituted 51.4% of the total ministry
workforce.
Since the return
of Namibian citizens in 1990 who had left Namibia during the
colonial period, the ministry and the legal profession had been
inundated with inquiries about the possible recognition of the
foreign legal qualifications of returnees. In order to address
this issue, it was decided that the admission of legal
practitioners to the bar and the attorney profession should be
dealt with at the same time. These efforts culminated in the
passing by the parliament of Attorneys Amendment Act, 1991 (Act
17 of 1991) and the Admission of Advocates Amendment Act, 1991
(Act 19 of 1991). These amendments were carried out amid fierce
resistance from certain circles of the old establishment that
viewed the integration of Namibians who had obtained their legal
qualifications in countries other than South Africa as a “threat
to the rule of law.” Given this resistance from the private
sector, those who were integrated into the profession experienced
considerable discrimination in the initial period.
Steps were also
taken to merge the two professions (advocates and attorneys)
which provoked considerable resistance to the extent that
petitions to stop the merging of the professions were sent to the
International Bar Association and to the United Nations Human
Rights Commission. These efforts did not succeed and the two
professions were integrated following the passing of the Legal
Practitioners Act, 1995 (Act 15 of 1995). The many advantages of
this integration are as follows:
1.
Choice of representation from the private sector is now
broadened.
2.
There has been a broadening of a base from which judges may be
appointed.
3.
There has been better utilisation of legal skills or experience
of legal practitioners who were in the past referred to as
attorneys.
4.
The whole system has been simplified with only one central
administration.
5.
Artificial division of work between an attorney and an advocate
has been done away with.
6.
Affordability of justice has been increased as clients are no
longer required to pay for the services of two people, an
attorney and an advocate.
7.
There is now a uniform training and general application of rules
of ethics.
The question of
bail was considered by the Presidential Commission of Inquiry
into Legislation for the More Effective Combating of Crime in
Namibia (O’Linn Commission). The commission proposed
comprehensive amendments to Chapter 9 of the Criminal Procedure
Act, 1977. Its recommendations retain the principle that
recognises the right of an accused person to be released with or
without bail unless the interests of justice are threatened. It
also looks at points that should be taken into account when
considering applications for bail. It is hoped that O’Linn
Commission’s recommendations on bail would produce a balance
in the new legislation between the interests of justice and the
concerns of the public on the one hand, and the constitutional
rights of the accused on the other hand.
The ministry was
assigned by Cabinet to deal with the Kasikili/Sedudu island
dispute which was heard by the International Court of Justice in
the Hague during February/March 1999. The permanent secretary of
the ministry headed the Namibian delegation, and led it during
the proceedings. Judgement on the Kasikili case was delivered in
December 1999.
To take advantage
of new technologies for improved communication and information
management, the ministry installed internet and intranet
facilities in 1998. By August 1999, the various departments of
the ministry were linked, and it is expected that in the next few
months, the Office of the Ombudsman, the Office of the
Attorney-General, the High Court, magistrate courts as well as
other offices in the ministry would also have access to these
facilities.
The ministry is
also involved in the printing and annotation of statutes and
making them available on compact discs. This work is being
carried out by the Directorate of Legislative Drafting together
with the assistance of students from the Law Faculty of the
University of Namibia who are being trained in the field of legal
research by the ministry with the help of the Deutsche
Geselschaft für Technische Zusammenarbeit.
Under the same programme, the ministry has also embarked upon the computerisation of the magistrate’s court office in Windhoek. By the end of 1999, bail, maintenance, and other financial transactions handled in the magistrate’s court would have been computerised. Financial transactions carried out on behalf of other ministries include admission of guilt fines for traffic offences on behalf of the Ministry of Works, Transport and Communication, and revenue collections on behalf of the Ministry of Finance.
Namcis
Project : Case Management System
The office of the
Master of the High Court is responsible for the administration of
deceased estates in terms of the Administration of Estates Act,
1995 (Act 66 of 1995); the administration of insolvent estates in
terms of the Insolvency Act, 1936 (Act 61 of 1936), the Companies
Act, 1973, and the Trust Moneys Protection Act, 1934 (Act 34 of
1934); the protection of minors and legally incapacitated
persons, the protection and administration of the funds of minors
and contra-incapacitated and absent heirs that have been paid
into the Guardians Fund; the handling of liquidation of companies
and close corporations in terms of the Companies Act, 1973;
determination and assessment of estate duty; and the supervision
of trusts in terms of the Trust Moneys Protection Act, 1934.
The Directorate
of Legal Aid is the main provider of legal representation to
accused persons. However, the High Court’s work continues to
be constrained because the accused persons do not apply for legal
aid until at the date of trial. Ever since the introduction of
the pre-trial hearings, the judges of the High Court hold
hearings to ensure that accused persons have legal representation
at their trial.
In addition to
the preparation of bills, the Directorate: Legislative Drafting
is responsible for the preparation of various other forms of
subordinate legislation proposed to be issued by the government
as well as regional councils and local authorities. These include
proclamations by the President in terms of the Constitution and
acts of parliament, regulations and government notices. From 1990
to 1999 bills, public notices and general notices drafted by the
directorate number as follows:
Year
|
No
of acts |
No
of proclamations |
Other
legislation/ |
|
of
parliament |
by
President |
subordinate
legislative measures |
|
|
|
|
| 1990 |
31 |
19 |
100 |
| 1991 |
33 |
34 |
159 |
| 1992 |
33 |
51 |
199 |
| 1993 |
33 |
37 |
164 |
| 1994 |
36 |
31 |
243 |
| 1995 |
28 |
14 |
246 |
| 1996 |
38 |
7 |
346 |
| 1997 |
24 |
41 |
364 |
| 1998 |
35 |
2 |
308 |
| 1999 |
12 |
27 |
*173 |
*Government
notices.
The Law Reform
and Development Commission was established in terms of the Law
Reform and Development Commission Act, 1991 (Act 29 of 1991). The
commission consists of eight members appointed by the president.
Its main focus is to recommend the repeal of all laws that are
incompatible with the Constitution. In its work, the commission
is giving priority to work on laws for protecting women and
children, the most vulnerable members in our society, and laws
for protecting and promoting fundamental human rights and
freedoms. The commission has already submitted reports on laws
dealing with rape, maintenance, and small claims courts. Its
present and future programmes include:
1.
a project for countering violence and abuse against women and
children,
2.
an estates project,
3.
a project dealing with issues related to public gatherings, and
4. a project dealing with publications.
The Office of the
Ombudsman is a constitutional office. By December 1998 a total
number of 663 complaints were received from the public and the
employees of government ministries. This number is significantly
higher than the number of cases handled annually in the past.
Forty-five complaints against the parastatals were received by
this office, and twenty-six complaints were received during
1997/1998 from public sector employees. During 1997, eighteen
complaints were received against local authorities compared to
twenty-six received during 1998. In addition to its
constitutional responsibilities, the office has held workshops
and meetings in all regions to educate the public about their
rights and responsibilities in the Namibian society.
The Ministry of
Justice intends extending its services to reach all areas of the
country. Where no courts are available, periodic courts will be
established. The ministry is also working towards establishing
small claims courts. These courts would enable the poor to have
easy access to justice without having to engage a legal
practitioner in petty cases. Establishment of small claims courts
would also ease the workload of the magistracies. In addition,
the Community Courts Bill will soon be tabled before parliament
in order to enable the community to participate in the
administration of justice.
The vision of the
ministry is to foster greater community involvement and
participation in order to instil in the community confidence in
the administration of the justice system; to deliver an
effective, affordable, simple, efficient and fair legal service;
to bring about balanced gender participation in the
administration of justice; and to facilitate the development of a
well-trained and representative personnel.
The ministry
intends to computerise all the thirty-two magistrate offices
countrywide to improve efficiencies. This will result in the
computerisation of the bail system and all financial matters. The
ministry has experienced considerable shortage of staff to carry
out services satisfactorily. As mentioned earlier, for the past
few years the ministry has been experiencing problems with many
qualified lawyers resigning from the ministry due to unfavourable
conditions of service compared to those in the private sector.
This has forced the ministry to employ foreigners to assist in
the administration of justice.
The ministry is
currently considering constructing a high court in Oshakati. It
is hoped that once a high court is established there, the
workload of the High Court in Windhoek would be relieved. The
Katutura magistrate’s court, expected to be completed early
next year, should also relieve the workload at the magistrate’s
court in Windhoek.