The Independence and Competence of Judges

Some Recent Public statements have questioned the competence and independence of Namibia’s judges.

This article summarises the safeguards that are in place to ensure judicial independence and capacity.

The starting point for judicial independence is Article 78 of the Namibian Constitution, which states that all courts in Namibia are subject only to the Constitution and the law, and that no member of Cabinet or the legislature, or any other person, may interfere with judges in the exercise of their judicial functions.

This means that judicial decisions are not subject to the dictates of pressure groups or political parties, not even the majority party.

As a practical mechanism to ensure judicial independence, the Constitution also requires that the financial and other administrative matters of the High Court and Supreme Court must be performed in a manner that promotes and guarantees the independence of the judiciary.

More specifically, it states that the accounting officer for the judiciary is subject to the direction and control of the chief justice, who is responsible for monitoring the norms and standards for the judicial functions of all courts.

Under the Judiciary Act 11 of 2015, the administration of the courts falls under the Office of the Judiciary rather than under any ministry.

This office operates subject to the direction of the chief justice and utilises a budget allocated directly to it by parliament, with the salary and benefits of judges being set by law.

The minister responsible for justice represents the Office of the Judiciary in Cabinet, to insulate the chief justice from political discussions.

QUALIFICATIONS

The core qualifications for judges are set out in the Supreme Court Act 15 of 1990 and the High Court Act 16 of 1990.

A Supreme Court judge must have experience as a judge in Namibia or in another country with a similar legal system, or been practising as an advocate or working full-time as a legal practitioner in public service for at least 10 years.

A High Court judge must have judicial experience, been practicing as an advocate or working full-time as a legal practitioner in public service for at least five years, or have an approved law degree along with at least five years’ experience as a magistrate.

APPOINTMENTS

The president appoints permanent judges on the recommendation of the Judicial Service Commission (JSC) which comprises the chief justice, the deputy chief justice, the attorney general and two members of the legal profession nominated by professional organisations representing the legal profession.

The JSC is charged under the Judicial Services Commission Act 18 of 1995 to give due regard to affirmative action, as far as is practicable.

The president can also appoint acting judges to the Supreme Court, at the request of the chief justice, to fill casual vacancies or to take part in cases involving constitutional issues if the chief justice believes that special knowledge or expertise is needed.

Similarly, the president can appoint acting judges to the High Court, at the request of the judge president, to fill casual vacancies or to enable the court to deal with its work more speedily.

As in the case of permanent appointments, acting judges must be chosen on the recommendation of the JSC.

The JSC invites nominations for judicial appointments from the Law Society of Namibia (the statutory body that regulates the legal profession), the Magistrates Commission and other relevant organisations.

The chief justice and the judge president may identify other possible candidates.

The JSC may conduct interviews with any of the nominees, and the Judicial Service Commission Regulations have since 2023 required that all such interviews must take place in public.

The JSC will then make recommendations to the president and provide the reasons behind its recommendations.

The president may reject a recommendation for a judicial appointment, but only for a good reason that must be stated in writing. In such a case, the JSC will submit a new recommendation to the presdient.

The president has no power to appoint any permament or acting judge without going through the JSC.

These procedures prevent a president from attempting to fill a court with judges sympathetic to a specific issue.

TERMS OF OFFICE AND REMOVALS

Judges generally hold office until they reach age 65, but the president can extend the retirement age of any judge to 70.

There is no age limit for acting judges who are appointed for fixed terms.

Any judges who are not Namibian citizens can be appointed only for fixed terms of office.

As another safeguard for judicial independence, the Constitution provides that judges may be removed by the president before their term of office expires only on the recommendation of the JSC, and only on the grounds of mental incapacity or serious misconduct.

A removal can take place only after an investigation by a tribunal convened by the JSC and composed of at least three current or former judges.

The president must implement the recommendation of the commission to remove or retain a judge.

ETHICAL SAFEGUARDS

No judge may engage in other paid work without authorisation by the JSC. This rule helps prevent conflicts of interest and ensures that judicial work is given priority.

Judges must also follow the Rules and Guidelines for Ethical Judicial Conduct that are agreed upon by the judges themselves, to ensure that the judiciary is self-regulating.

Independence and impartiality are among the core tenets of these rules, which charge judges to carry out their judicial duties free of any influence, threats or interference.

They must treat all persons involved in legal proceedings equally and strive to be mindful of diversity in society.

Judges may not accept any gifts, loans or other favours in connection with their official roles, and they may not use their positions to advance the private interests of themselves or anyone else.

They are expected to refrain from involvement in any court case where there is a conflict of interest, such as where the case could affect the judge, a member of the judge’s family, a close friend or associate or even a personal enemy.

Judges may not be actively involved or publicly participate in any party-political activity, or in any causes, organisations or activities that could detract from the dignity or independence of their offices.

COMPLAINTS PROCEDURE

The Judicial Service Regulations set out a complaints procedure.

Any person can make a complaint based on the mental incapacity or serious misconduct of a judge in a sworn statement submitted to the chief justice.

The chief justice must immediately bring the complaint to the attention of the JSC, which will decide if an investigation is warranted.

It can dismiss a complaint without an investigation if the complaint was made anonymously, or if it obviously does not make out a case that could lead to a judge’s removal.

After considering the complaint, the commission has the power to institute a formal procedure for possible removal of the judge or to take other measures, such as issuing a reprimand or requiring an apology.

No system is perfect, and there is no such thing as complete objectivity; every judge acts within the context of history and society.

But Namibia’s approach to safeguarding judicial independence makes the Constitution the supreme touchstone and provides a range of rules and tools that can be effectively utilised to protect both the individual independence of judges to decide cases without inappropriate influence and the institutional independence of the judiciary.

• Dianne Hubbard is a legal consultant with many years of experience in public interest law and a passion for trying to make legal issues clear and accessible.
• The Rules of Ethical Judicial Conduct and the Guidelines for Ethical Judicial Conduct can be found at: https://ejustice.moj.na/JUDICIARY/LegislationAndDirectives/Pages/DirectivesJudiciary.aspx; the procedure for complaints about a judge can be found at www.judiciary.na.

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