Despite 35 years of independence, a lamentable lack of understanding persists in Namibia regarding the fundamental right of an accused person to legal representation.
While we should all be well-versed in the principle that people are presumed innocent until proven guilty, many remain unwilling to accept this basic tenet of justice.
Precisely because of its importance, the state is required to provide indigent accused persons with state-funded lawyers.
In 1963, an American judge underscored this point, stating we must recognise that:
“(I)n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.
“Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.
“Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society.
Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defences.
“That government hires lawyers to prosecute and defendants who have the money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries.”
‘KNOCK THE LAWYERS’
Perhaps because of societal retributive urges against people accused of crimes one still finds instances of lawyer bashing.
The practice of ‘lawyer bashing’ is an ancient one, extending back for centuries.
In Shakespeare’s ‘Henry VI’ (Part II), the character Dick, in contemplating a new regime, is said to have retorted: “The first we do, let’s kill all the lawyers.”
In 1943, an acclaimed author noted that in the olden days, people appeared in court themselves.
However, as court business became more intricate, attorneys became necessary to stand in their place.
Given legal practitioners’ essential role, the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Cuba in 1990, adopted Basic Principles on the Role of Lawyers.
These include guarantees for the safety of lawyers in courts.
They also include the principle that lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.
It was therefore not surprising that Namibia’s Constitution put a high premium on an accused person’s right to a legal representative (Article 11(5), Article 12(1)(e), and Article 95).
Article 95 requires the state to actively promote and maintain the welfare of the people by adopting policies aimed at ensuring that every citizen has the right to a legal system seeking to promote justice on the basis of equal opportunity by providing free legal aid in defined cases.
COMPETENT COUNSEL
The importance of legal representation was recently emphasised by the Supreme Court of Pennsylvania Middle District when William Henry Cosby Jr, the well-known US TV personality, appeared in court.
It stated: “[The right to counsel] embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.
“That which is simple, orderly, and necessary to the lawyer to the untrained layman may appear intricate, complex, and mysterious.”
“In many cases, the right to be heard would be of little avail if it did not comprehend the right to be heard by counsel.
“Even the intelligent, educated layman has small and sometimes no skill in the science of law.
If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence.
“Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible.”
THE LAW RULES
Everyone must discourage unconstitutional opinions persistently aired by a few social media armchair critics who oppose the right of accused persons to hire skilled legal practitioners.
No Namibian legal practitioner should feel intimidated, nor should any authority seek to intimidate a legal practitioner for discharging their constitutionally derived duties in defence of a client.
To those in the legal field, it is your duty to defend your profession from any attempt at interference in fulfilling your sacred duties.
We have seen how, before our country became a constitutional democracy, lawyers were often ostracised for defending their clients.
Nothing of that sort should be allowed in an independent Namibia.
Legal practitioners need no-one’s approval to carry out their duty for which they took an oath before a judge of the High Court.
They owe a debt of allegiance to their profession.
- Sisa Namandje is a legal practitioner of both the High Court and Supreme Court of Namibia. The author of six law publications, his seventh book will be released next week.
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