Govt eyes courts’ sentencing powers

SENTENCING discretion – part of the independence enjoyed by Namibia’s courts – could come under assault from Government as part of a plan to implement sentencing reforms in the Namibian justice system, according to remarks made by Justice Minister and Attorney General Pendukeni Iivula-Ithana yesterday at the official opening of the High Court for 2007.

Iivula-Ithana used her turn to address eight Judges of the High Court and dozens of legal practitioners at the opening of the court’s legal year to make some pointed remarks about the court’s role in implementing affirmative action, delays in delivering judgements, and sentencing reform, which she singled out as an area of the justice system that needs serious attention. The ultimate objective of decisions made by Namibia’s judiciary should be not only to apply the law, but to do this in such a way that it is ensured that justice is achieved, Iivula-Ithana said at the event.”This in itself means that judgements of the court must measure up to the public perception of fairness.In other words, judicial pronouncements must pass the test in the court of public opinion,” she said.She added: “The judiciary is a necessary arm of Government.It is not part of the opposition and should not be so lest it loses credibility and lest anarchy prevails.”She expects Namibia’s courts to keep the country’s past in mind, and to be guided by principles of affirmative action when they make their decisions, which should serve “the needs of all our people and not just an elitist class”, she said.She added: “I make these remarks in light of current affirmative action programmes such as those relating to land reform and black economic empowerment, emotive issues likely to stir a great deal of legal controversy when they likely come before these courts for determination.”An area that needs serious attention is sentencing reform in the criminal justice system, Iivula-Ithana continued.The current system, with sentences for most crimes not prescribed and courts having the discretion to treat each case on its own merits when deciding what sentences would be appropriate for a convicted offender, in her opinion “frequently results in sentencing disparities in more or less similar cases and between sentences in crimes committed against the person as distinct from property and other crimes,” Iivula-Ithana said.”It may also result in the unsatisfactory situation whereby the nature of sentence a convicted offender receives depends on who the sentencing judge was,” she added.”I hold the firm view that our system, based as it is on indeterminate sentencing, has serious shortcomings,” she said.She proposed that sentencing reforms, “aimed at reducing disparity and increasing sentence uniformity, proportionality and precision”, and also “geared at achieving racial parity in sentencing”, should be undertaken.This, she said, can be done through adopting sentencing guidelines – to be determined by an independent body.Iivula-Ithana also addressed delays in delivering justice in some of the country’s courts.”Nothing erodes public confidence in our system of justice more than an inordinate wait of several months, sometimes years, for a court to hand down its judgement,” she said.”While it is appreciated that delays are sometimes inevitable, some of the delays that we have witnessed in the recent past relative to the types of cases involved have been remarkable in the extreme, sometimes leaving one wondering whether the delay is not simply due to neglect or forgetfulness on the part of the judicial officer.”She added: “While the executive and Parliament are aware of the constraints that are sometimes experienced by Judges, we believe strongly that some of the delays in delivering judgements are totally unsupportable.The Constitution of the Republic of Namibia guarantees judicial independence and the rule of law.Our understanding of these fundamental principles is that the judiciary is not above the law.”The President of the Law Society of Namibia, Esi Schimming Chase, also made mention of delays in delivering judgements: “(T)here is room for improvement as regards the judgements of the High Court, some of which have been outstanding for longer than the prescription period for debts.The integrity of the profession is unfortunately at risk as long as these judgements remain outstanding.”Sentencing convicted offenders is not a duty that is as easy to carry out as it might look, however, Judge President Petrus Damaseb remarked when he made his opening address after Iivula-Ithana.The Judge President stated: “It is a generally held view that the courts are soft on violent crime.That view is not supported by the sentencing practices of the courts.The sentences imposed by the Namibian courts for violent crimes are severe; indeed very severe.”In his view, the solution to the problem in trying to use the sentencing of offenders as a tool to fight crime in Namibia might lie elsewhere, the Judge President indicated.Having earlier remarked that violence had sadly become the medium for social discourse in Namibia, Judge President Damaseb added: “I have the shrewd suspicion that the frustration (with sentences) comes from the fact that violence seems to show no sign of abating, notwithstanding the heavy sentences.The answer must lie somewhere else: The problem is best approached by looking at the causes of crime and designing appropriate social policies to respond thereto.That is a political function.”A penal policy must without doubt form part of society’s response to crime, but it must not be seen as the ultimate remedy for the problem of violence plaguing Namibia, the Judge President said.The ultimate objective of decisions made by Namibia’s judiciary should be not only to apply the law, but to do this in such a way that it is ensured that justice is achieved, Iivula-Ithana said at the event. “This in itself means that judgements of the court must measure up to the public perception of fairness.In other words, judicial pronouncements must pass the test in the court of public opinion,” she said.She added: “The judiciary is a necessary arm of Government.It is not part of the opposition and should not be so lest it loses credibility and lest anarchy prevails.”She expects Namibia’s courts to keep the country’s past in mind, and to be guided by principles of affirmative action when they make their decisions, which should serve “the needs of all our people and not just an elitist class”, she said.She added: “I make these remarks in light of current affirmative action programmes such as those relating to land reform and black economic empowerment, emotive issues likely to stir a great deal of legal controversy when they likely come before these courts for determination.”An area that needs serious attention is sentencing reform in the criminal justice system, Iivula-Ithana continued.The current system, with sentences for most crimes not prescribed and courts having the discretion to treat each case on its own merits when deciding what sentences would be appropriate for a convicted offender, in her opinion “frequently results in sentencing disparities in more or less similar cases and between sentences in crimes committed against the person as distinct from property and other crimes,” Iivula-Ithana said.”It may also result in the unsatisfactory situation whereby the nature of sentence a convicted offender receives depends on who the sentencing judge was,” she added.”I hold the firm view that our system, based as it is on indeterminate sentencing, has serious shortcomings,” she said.She proposed that sentencing reforms, “aimed at reducing disparity and increasing sentence uniformity, proportionality and precision”, and also “geared at achieving racial parity in sentencing”, should be undertaken.This, she said, can be done through adopting sentencing guidelines – to be determined by an independent body.Iivula-Ithana also addressed delays in delivering justice in some of the country’s courts.”Nothing erodes public confidence in our system of justice more than an inordinate wait of several months, sometimes years, fo
r a court to hand down its judgement,” she said.”While it is appreciated that delays are sometimes inevitable, some of the delays that we have witnessed in the recent past relative to the types of cases involved have been remarkable in the extreme, sometimes leaving one wondering whether the delay is not simply due to neglect or forgetfulness on the part of the judicial officer.”She added: “While the executive and Parliament are aware of the constraints that are sometimes experienced by Judges, we believe strongly that some of the delays in delivering judgements are totally unsupportable.The Constitution of the Republic of Namibia guarantees judicial independence and the rule of law.Our understanding of these fundamental principles is that the judiciary is not above the law.”The President of the Law Society of Namibia, Esi Schimming Chase, also made mention of delays in delivering judgements: “(T)here is room for improvement as regards the judgements of the High Court, some of which have been outstanding for longer than the prescription period for debts.The integrity of the profession is unfortunately at risk as long as these judgements remain outstanding.”Sentencing convicted offenders is not a duty that is as easy to carry out as it might look, however, Judge President Petrus Damaseb remarked when he made his opening address after Iivula-Ithana.The Judge President stated: “It is a generally held view that the courts are soft on violent crime.That view is not supported by the sentencing practices of the courts.The sentences imposed by the Namibian courts for violent crimes are severe; indeed very severe.”In his view, the solution to the problem in trying to use the sentencing of offenders as a tool to fight crime in Namibia might lie elsewhere, the Judge President indicated.Having earlier remarked that violence had sadly become the medium for social discourse in Namibia, Judge President Damaseb added: “I have the shrewd suspicion that the frustration (with sentences) comes from the fact that violence seems to show no sign of abating, notwithstanding the heavy sentences.The answer must lie somewhere else: The problem is best approached by looking at the causes of crime and designing appropriate social policies to respond thereto.That is a political function.”A penal policy must without doubt form part of society’s response to crime, but it must not be seen as the ultimate remedy for the problem of violence plaguing Namibia, the Judge President said.