TILENI MONGUDHI and MATHIAS HAUFIKUNAMIBIAN lawyer Eben de Klerk has warned that plans to give the judiciary non-transparent powers to decide when cases can be held in secret, could affect the integrity of the courts.
De Klerk’s concerns about the proposed High Court rule amendments are in line with those of the Legal Assistance Centre (LAC) that warned that the proposal by the judiciary to change regulations on how court cases can be classified as secret is against the Constitution and could undermine the independent and transparent justice system.
LAC wrote to the Law Society of Namibia, which reportedly requested for input on the amendments of the rules of the High Court of Namibia.
De Klerk made his submission to the Law Society of Namibia earlier this month where he said the constitutional right to open courts could be trampled upon.
“The public has the right to observe all High Court legal proceedings in open court. The public must also have the right to a formal, transparent process whereby the court rules that the public’s right in this regard is curtailed, through the application of one or more of the four exceptions,” he said.
De Klerk said the in-camera debacle in the Kora matter – whereby case files were removed from the e-justice portal – had already brought the integrity of the judiciary into disrepute.
He added: “Without a formal application to, and ruling by the court to justify one or more of the exceptions being present and applied, followed by an order to proceed in camera, there is no accountability on the part of the judiciary, no possibility of oversight by the public and most importantly, no means to appeal against any decision taken in this regard.”
The lawyer said decisions made in secret, based on a document received in secret, means every subsequent decision by a court to deny the public the right to open proceedings will be arbitrary at best.
“Few regard the in-camera issue in the Kora case, in a matter where a minister and our president is implicated, as merely accidental,” he cautioned.
De Klerk added that secretive affidavits or written requests prohibit any public oversight or judicial challenge. Likewise, the judge’s decision cannot be called a ruling without any other party having had the opportunity to reply, he said.
“As the proposed procedure is secretive, no prejudiced party, neither the public, have any opportunity to review or appeal a decision of the court to proceed in camera. I humbly submit that the proposed amendment is in itself unconstitutional as it proposes, in essence, an in camera application process, even before the Article 12 exceptions may possibly be applicable,” he said.
With the renowned Afrobarometer survey having shown a substantial decline in the public’s trust in the judiciary over the past five years, De Klerk warned that enacting further measures to allow for secrecy will further erode the public’s trust in the judiciary.
“I lastly remind you that to date no justification has been given for the Kora matter to have been held in camera. Not even the Judicial Services Commission (JSC) could inform the public which four of the constitutional exceptions were present. This breach of the principle of the rule of law will be exacerbated by this proposed rule amendment; seemingly legitimising such breach,” he said.
The LAC, in a letter dated 27 January 2020 to the Law Society of Namibia, said it is worried that the proposed regulations have no oversight on the judges who will make the decisions; could lead to abuse; and lack provisions for the public to object to an application for secrecy.
The LAC warned that the proposed changes might affect the credibility of the judiciary, adding that the decision-making process on the issue of exclusion would appear to take place entirely in secret, without any criteria to guide discretion beyond the constitutional statement.
“Since no one other than the parties would be involved or even aware of such applications, the public would have no way of knowing if the power of exclusion was being used widely, frequently or inappropriately”.
This undermines one of the cornerstones of the concept of an independent, impartial, and transparent justice system – that court proceedings are, except in very limited circumstances, open to public scrutiny,” LAC director Toni Hancox said in the submission.
Judicial spokesperson Ockert Jansen said judge president Petrus Damaseb, who made the proposal, was acting on instructions from the Judicial Service Commission (JSC) headed by chief justice Peter Shivute.
Jansen added that although the Namibian Constitution makes provision for in-camera court proceedings, there are currently no guidelines on how that is to be done, hence the JSC’s decision.
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