Are Courts Aloof From the Masses?

It is always dicey to criticise judges.

As a strong proponent of the rule of law being a key tenet of democracy, The Namibian remains aware that being seen as ‘attacking’ the courts can be self-defeating.

Courts must always be respected as neutral and crucial to the civil resolution of disputes.

Yet we cannot help but try to convey our message to the courts when they frequently take decisions that appear to harm the principles of the rule of law and democracy.

A month ago, we took issue with the courts about an excessive award of legal costs in cases, such as defamation, that involve issues of broad public interest.

We pointed out that the judges were yielding to the rich and privileged who use the courts as a bully pulpit to stifle robust criticism of tenderpreneurs who benefit from taxpayer funds amid poor service delivery.

This week’s Electoral Court decision to agree with the demand for the payment of a deposit by the parties challenging the shambolic voting process in November is even more preposterous than awarding legal costs against a losing party in defamation cases.

Judges Hannelie Prinsloo, Orben Sibeya and Esi Schimming-Chase granted the request for a deposit for legal fees before the National Assembly election challenge case can proceed against the Electoral Commission of Namibia (ECN), president Nangolo Mbumba and the ruling party, Swapo.

The three parties actually demanded that the Independent Patriots for Change (IPC) pay nearly N$1.9 million before the judges dropped the figure to N$450 000, stating that a deposit should not prohibit anyone approaching courts.

Well, N$450 000 is not peanuts.

The point really is why in such an important matter involving the country’s democratic process should aggrieved parties be made to pay a deposit before their grievances can be heard in the courts?

Mozambique is a sad example of a case where the masses have lost trust, not only in the people administering elections, but also in the courts and the very principle of the rule of law.

Nearly 300 people died in demonstrations emanating from disputes about voting results as the masses have no faith in Mozambique’s courts to fairly deal with their complaints.

The last thing our courts should entertain are tactics aimed at blocking parties from using the courts as a peaceful platform to resolve a dispute, especially in cases that are fundamental to our democratic values.

Elections are too important to have obstacles like the payment of deposits placed in the way of giving a fair chance to people who have grievances that need to be addressed.

Besides, the courts have in the majority of cases over the past 20 years found the ECN wanting and have admonished them on how they run elections.

Those previous court cases have helped strengthen the public belief in the rule of law.

The judgements have also been used to improve the running of elections.

The court’s position to support the payment of an expensive deposit would only discourage parties from approaching them to vent their frustrations on how our democracy is being administered.

What options would aggrieved parties be left with?

Surely that’s not what the courts want? The courts should be accessible to the common people, and not only those who “have all the money”, as Swapo secretary general Sophia Shaningua boasts.

Lawyers’ fees are already a major obstacle to going to court.

Judges should not allow themselves to be used in discouraging aggrieved parties from accessing the justice system.

We are not insinuating that the courts are deliberately siding with the rich and powerful.

But we urge judges to avoid being aloof to the point of perhaps only looking narrowly at what a law says, no matter that it may be defeating the purpose of what the rule of law was intended for, which is to be open to the broader society and resolve disputes peacefully.