The Judiciary’s Role in a Society Unsettled by Crime, and Social, Economic and Political Strife

In 1942, A respected judge, Lord Atkin, stated: “(A)midst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace … It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.”

In 1879, another judge seminally stated: “The disturbed state of the country ought not in my opinion to influence the court, for its first and most sacred duty is to administer justice to those who seek it, and not to preserve the peace of the country … The civil courts have but one duty to perform, and that is to administer the laws of the country without fear, favour or prejudice, independently of the consequences which ensue.”

NAMIBIA

Courts in Namibia, as the third branch of the state, decide civil disputes and criminal prosecutions.

For courts to carry out their judicial power in terms of our Constitution they must be independent and subject only to the Constitution and the law.

They must respect people’s aspirations, cultures and customs.

The Constitution prohibits the Cabinet or the legislature or any other person from interfering with the work of the courts.

All state organs are required to accord such assistance as the courts may require to protect their independence, dignity and effectiveness.

However, the independence of the courts and their ability to exercise judicial power fairly, without fear or favour, don’t entirely depend on non-interference from the executive, legislature and citizens.

They also depend on how the courts themselves conform to basic tenets of judicial function and their awareness that they themselves are constrained by the Constitution and the law.

Over the last 10 years or so, there have been court decisions, some of which have since been corrected by the judiciary itself (through review and appeal mechanisms) in which some presiding officers overreach, ignore or breach basic procedural and substantive rules meant to ensure independent, objective, fair and legitimate judicial adjudication of disputes.

Such instances have not reached a crisis stage as in some countries.

And, while our judiciary remains one of the best in Africa, it is important that society remains vigilant at all times and keeps the judiciary accountable, fair and responsible just as it keeps other branches of the state constitutionally accountable.

POWER AND PREJUDICE

In an unsettled society, hamstrung by endemic crime, the misuse of public funds, as well as other socio-economic evils, it becomes easy for some judicial officers to overreach and act as if they perform the executive or legislative functions.

Courts do not legislate nor do they exercise executive power.

Both those who are celebrated and those who are considered socially disgraced must get equal court treatment.

A South African court recently warned that where the misappropriation of public funds and other administrative malfeasances are properly raised before a court it must, of course, deal with such decisively and without fear, favour or prejudice.

However, a court has no general duty or power to exercise power over the expenditure of public funds or to dictate to the executive powers what policies are good for the country provided they are lawfully adopted.

The exercise of executive or legislative duty by courts would infringe on the constitutional rights of ordinary citizens to equality and a fair public hearing.

After all, the law constrains courts to decide only issues raised before them.

The perception that a system of a state’s administration is broken is not a licence for courts to disregard fundamental principles of procedural or substantive law.

Therefore, it is important, in our adversarial court system, that the courts decide issues with acute awareness of the confines and ambits of issues identified by parties in litigation.

ALLEGATIONS AND FACTS

Despite a multitude of social, economic, and political societal evils, courts must maintain overt objectivity, independence, calmness, and fairness particularly in so-called high profile cases.

They should avoid acting in a manner subversive of basic requirements of open, impartial, and fair administration of justice.

When deciding on disputes, members of the judiciary should strive only to decide matters that are germane and relevant and avoid making gratuitous findings against people who may not have had an opportunity to defend themselves.

Furthermore, it is important for courts to be aware of the difference between allegation, fact, and suspicion.

Far-reaching factual conclusions during interlocutory or procedural hearing are a grave concern.

We must therefore continue celebrating the judiciary’s independence and its good record while at the same time cautioning that the nature, magnitude or even the social or economic status of the parties must not dictate the outcome of litigation.

Law and fact must determine and dictate litigation outcomes.

For now we must pay tribute to men and women in the judiciary who, day and night, ensure that disputes are adjudicated and finalised expeditiously and competently so as to keep societal peace and order.

• Sisa Namandje is a legal practitioner of both the High Court and Supreme Court of Namibia, and the author of five law books