Lately, there has been a surge in public discourse surrounding the sluggishness of Namibia’s justice system.

 From newspaper articles to social media posts, the frustration is palpable. The slow pace of bail applications, such as in the high-profile Fishrot case, and the prolonged detention of individuals without bail are stark examples of a system that many believe is failing its people. 

This raises critical questions about the efficiency and fairness of our judicial processes.

Constitutional mandate

Article 11(3) of the Namibian Constitution is clear: no one should be detained for more than 48 hours without appearing in court. This provision is designed to protect the rights of the accused and ensure swift justice. Yet, in practice, this rule is often violated, particularly in remote areas where logistical challenges delay court appearances.

The Criminal Procedure Act, 1977 (Act No. 51 of 1977), reinforces this mandate. Section 50 stipulates that an arrested person must be brought before a court as soon as reasonably possible, but not later than 48 hours after arrest, excluding weekends. However, places like Omaueyozonjanda in the Epukiro area, where holding cells exist but courts do not, highlight the systemic challenges. Transporting detainees to the nearest court can take days, if not weeks, effectively violating their human rights.

To address these geographical challenges, the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), under Section 13 read with Section 27, allows for the establishment of periodical courts. These courts are intended to provide judicial services in areas where it is impractical to have permanent magistrate’s courts. Despite this provision, the reality is that periodical courts often take years to hear cases, exacerbating the problem of delayed justice.

Strain on resources

One of the significant issues contributing to these delays is the shortage of state prosecutors. The Ministry of Justice and the Office of the Prosecutor General have struggled to recruit sufficient personnel to handle the growing caseload. This shortage affects both civil and criminal cases, leading to prolonged waits for court dates and the completion of trials.

The recent concerns raised by politician Job Amupanda regarding the appointment of sheriffs from only two families since independence also cast a shadow on the credibility and fairness of judicial appointments. This situation calls into question the transparency and inclusivity of the recruitment processes within the judiciary.

Public perception

High-profile cases, such as that of Sacky Shanghala, who chose to represent himself, further highlight public distrust in the judicial system. Shanghala’s questioning of the credibility of the prosecution and the judge, suggesting they might be foreigners, points to a deeper issue of perceived bias and a lack of confidence in the legal process.

Similarly, the recent involvement of foreign advocates in the NEFF case has stirred debate. This practice is seen by some as an indictment of our local legal professionals, who are perceived as inexperienced or inadequate for handling complex cases.

 This perception is troubling, especially when considering the large number of law graduates who remain unemployed or underemployed, despite the efforts of private law firms to train them.

Namibia’s legislative framework provides a robust foundation for a fair and efficient justice system. The Criminal Procedure Act ensures that detained individuals’ rights are protected by mandating prompt court appearances. 

The Magistrates’ Courts Act aims to make justice accessible even in remote areas through periodical courts. 

However, the implementation of these laws often falls short, leading to significant human rights concerns.

The Constitution, alongside these acts, underscores the importance of upholding justice and the rule of law. The failure to adhere to the 48-hour rule and the prolonged delays in court proceedings undermine these fundamental principles. It is crucial that the Ministry of Justice and the Office of the Prosecutor General take proactive steps to address these issues.

Reform

Increased recruitment of State prosecutors is essential to addressing the backlog of cases. This would help in expediting both civil and criminal cases, ensuring that justice is not delayed.

Strengthening periodical courts is also vital. The Ministry of Justice should ensure that these courts are adequately staffed and resourced to handle cases promptly, particularly in remote areas.

Transparency in judicial appointments must be improved. The concerns about the appointment of sheriffs and other judicial officials must be addressed through transparent and inclusive recruitment processes. This would enhance public confidence in the judiciary.

Providing better support and training opportunities for law graduates can help integrate them into the legal profession. This would not only address unemployment but also build a more robust legal system.

Increasing public awareness about legal rights and providing greater access to legal aid can empower individuals to seek justice effectively. This includes ensuring that detainees are aware of their right to appear in court within 48 hours.

Improving the infrastructure and logistics for transporting detainees to court can prevent violations of the 48-hour rule. Investment in technology, such as virtual court appearances, could also be explored to bridge the gap in remote areas.

The issues plaguing Namibia’s justice system are multifaceted and deeply rooted. However, with concerted effort and targeted reforms, it is possible to build a system that is expedient, fair, and just. The Ministry of Justice and the Office of the Prosecutor General have a critical role to play in this transformation. 

By addressing the current challenges and leveraging the legislative framework in place, Namibia can uphold the principles of justice and human rights for all its citizens.

*Compiled by Brian Ngutjinazo, a third-year LLB student at the University of Namibia. The opinions expressed in this article are solely his own, as protected by Article 21(1)(a)(b) of the Namibian Constitution.