In a letter dated 17 December 2019, the Judge President of the High Court of Namibia, Petrus Damaseb, asks the Law Society of Namibia for ‘comments and suggestions before he can finalise an Amendment to the Rules of the High Court of Namibia, High Court Act 1990 for approval by the President of the Republic of Namibia for signing’.
A notable absentee in terms of relevant stakeholders who should have been invited to provide comments, suggestions and possible amendments are the media (often referred to as the fourth estate; in democratic countries where power is divided between the three pillars of government namely the legislature, executive and judiciary).
Why it is important that the media is consulted in this process is because a change in the rules may impact their mandate to inform the public on court proceedings taking place in the High Court of Namibia.
In a sub-heading titled: Prohibition or restriction on access to case files, the Judge President proposes that “Any person who intends to issue process in the court and wishes to rely on the provision of article 12 (1)(a) of the Namibian Constitution; must direct a written request that he or she wishes the court to exercise the powers, conferred on the court by that provision, to exclude the press or public from all, or any part of the proceedings to the Judge President, accompanied by an affidavit, setting out fully and clearly the facts and circumstances relied on in support of such request.”
Article 12 (1) (a) of the Namibian Constitution states that … all persons shall be entitled to a fair and public hearing by an independent, impartial and competent court … Such court may exclude the press and/or public from all or any part of the trial for reasons of morals, the public order or national security.
At first glance it would seem the new rules are in line with freedom of the press as enshrined in the Namibian Constitution.
However, under closer scrutiny, the question of why a change in rules is necessitated at a time when the political space has become somewhat volatile comes to mind.
The case of late Paulus Tshilunga, a Namibian Central Intelligence Service (NCIS) senior manager for criminal intelligence is a case in point.
The deceased appeared in court on charges of fraud, corrupt use of his office/position for gratification, and money laundering.
Yes, Tshilunga was a national security official, however cases of corruption are always in the public interest as they involve taxpayers’ (public) money.
It therefore becomes a question of balance.
What measures would the Judge President take into consideration when approaching a request to exclude the public or press from any part of the proceedings?
In light of the #FishRot fiasco, those implicated may use the change in rules to request the Judge President to exclude the press and public from all or part of the proceedings.
Presuming there may be high level individuals, for example the President, and many other high ranking officials involved, the issue of national security may be cited as a reason why the media and the public may not have access to court proceedings which will definitely not be in the public interest.
Media freedom, public interest and national security are intertwined.
The Judge President would be required to find a delicate balance in instances where national security may outweigh public interest without encroaching on the media’s mandate to keep the public informed.
Other amendments to the rules include the prohibition and restriction on access to electronic justice files.
Altogether, Judge President Petrus Damaseb may have good reason as to why his office is proposing a change to the rules of the High Court.
However, this cannot be done without all relevant stakeholders giving their input in terms of comments and suggestions before he finalises the rules for approval by the President of the Republic of Namibia.
It is not fair that the Law Society of Namibia should be given a chance to give suggestions wherein those who may be at a disadvantage if the rules that are adopted are not given an equal chance to do the same.
*Vitalio Angula is a socio-political commentator and independent columnist