Responding to New Era’s questions by way of a media release, the Judicial Service Commission explained its decision to assign the Fishrot corruption trial to Zimbabwean-born judge Moses Chinhengo, but did not address the perceived lack of transparency.
Last Monday, Judge President Petrus Damaseb unveiled Chinhengo in the Windhoek High Court as the man in charge of one of Namibia’s biggest cases: Fishrot.
Reacting to a New Era article last week, the judiciary’s executive director Bernhardt Kukuri appeared amused why the public has been demanding more transparency from them.
“I don’t understand why they want judges to be interviewed in public, when other members of the branches of State [Legislature and Executive] … Cabinet ministers or parliamentarians, are not interviewed in public”, he stated.
According to the JSC, it has the duty and responsibility to ensure that the superior courts at all times have a sufficient number of judges to attend to the ever-increasing number and complexity of cases.
Last week, this paper sent detailed question to the judiciary on its lack of transparency and the process that culminated into Chinhengo’s instalment.
“It is common knowledge, however, that that has not always been possible because the JSC finds it difficult to interest senior Namibian practitioners to join the bench,” the JSC said in the statement.
It continues: “The JSC has given opportunities to suitably qualified Namibian magistrates to serve at the High Court through acting opportunities, and ultimately as permanent judges. It is important, though, to ensure a healthy mix and balance in experience in all areas of law for persons who serve in the High Court.”
Apart from pointing to Chinhengo’s extensive resume, the JSC said it seeks to prioritise suitable Namibian candidates.
“Where the need arises, the JSC looks outside Namibia to recruit candidates to broaden the pool of skills. It looks for individuals who have familiarity with Namibian law, and in situations where lengthy trials are anticipated, persons who have the time to give undivided attention to a case,” the Chief Justice Peter Shivute-led commission continued.
Justice Shivute is deputised by Damaseb. Attorney general Festus Mbandeka, advocate Vicky Ya Toivo and advocate Sakeus Akweenda complete the team.
“Once a foreign national has been identified and appointed as a judge, they form part of the pool of judges available for assignment in the discretion of the head of court. In that capacity, they can be assigned any cas,e and their nationality is an irrelevant consideration,” the commission stressed.
The JSC is a group of legal experts that suggests people who have the right skills to be judges.
“The benefit that comes with such appointments [foreign judges] is that the judge seldom has local associations and friendships which may result in conflicts of interest. Thus, where there is either real or perceived conflict for Namibian judges, non-Namibian judges fill the void,” they added.
“These are individuals of unquestioned competence and integrity, who upon assuming office take the oath to administer impartial justice. Casting aspersions on their characters is, therefore, most unfortunate and undesirable,” the JCS continued.
The JSC took issue with some negative public statements made concerning the assignment of the Fishrot case to Justice Chinhengo – who was appointed in March this year as an acting Judge of the High Court of Namibia.
According to the JSC, Chinhengo is a respected judge, who started his judicial career in his homeland Zimbabwe after the independence of his country.
“He then went to Botswana as a judge of that country’s High Court and after some time, voluntarily left the bench to engage in private consultancy work, most notably as an independent arbitrator in commercial disputes. He also serves as an acting judge of the Court of Appeal of Lesotho since 2015. Justice Chinhengo is a highly-regarded jurist in the Southern African region,” the JSC reiterated.
The JSC noted that Chinhengo, together with two senior retired judges from Zambia and South Africa, served as an acting judge of the Supreme Court of Namibia in the high treason appeals. “Therefore, he has a familiarity with Namibia’s legal system, and a sound grounding as a judicial officer both at first instance and appellate levels.
“Until his appointment in March this year, Justice Chinhengo was primarily involved as an independent arbitrator, and is a longstanding member of the African chapter of the International Commission of Jurists. His credentials as an independent professional, therefore, speak for themselves,” the JSC noted.
Driving the narrative home, the JSC said: “Most importantly, he is not engaged in a full-time paid job, and has sufficient flexibility to assume a long-term acting appointment as an acting judge in Namibia.”
“Namibia has since independence benefited from the rich legal traditions and experiences available in the southern African region, being South Africa, Zambia, Zimbabwe, Lesotho and Eswatini. Namibia is now less dependent on foreign judges, but now and then where the need is felt, we seek the assistance of those friendly countries with whose judiciaries we have an excellent working relationship.”
Last week, political parties, including the Landless People’s Movement and the Affirmative Repositioning (AR) movement, questioned the appointment of Chinhengo, particularly due to what they termed the secretive nature of the appointment of judges in Namibia, a process wherein transparency is almost non-existent.
“The Zimbabwean judge issue; we’ll really have to investigate… there are others from Zimbabwe who fled and said we’ve had enough of this nonsense…. but others are here on a mission. They are mercenaries. You can be clothed in a judicial dress, with a black gown, projected up there, and we can call you ‘my lord’, but you know that you don’t have a soul, whether you are called a ‘lord’, you know you are a dirty man, even if you’re in black,” LPM leader Bernadus Swartbooi said last week.
His sentiments were echoed by Maitjituavi Kavetu, AR’s head of legal, who said: “Vacancies on the High Court bench or Supreme Court bench remain a secret to the public. Any judge appointed in a manner which doesn’t include public interviews or announcements of vacancies can never receive the blessings and confidence of the public or the leftist movement.”
He said AR has no problem with the appointment of foreign judges on the local bench, but the process through which they are appointed.
That process, Kavetu said, “is rather too secretive, and the fact that they seem to insist on the secretive process makes us wonder whether the Namibian people will even see justice in the Fishrot case, especially with a judge coming from Zimbabwe, when one considers that country’s judicial reputation and the Namibian history regarding one of the judges who was appointed in the north [Maphios Cheda].”
Back in 2018, AR organised the #ChedaMustFall demonstration against former Zimbabwean High Court Justice Cheda, who is embroiled in a nasty land row in Oshakati.
At the time, then-justice minister Sacky Shanghala strongly warned Namibians against taking part in the mass demonstration, saying it was a dangerous path which undermined the integrity of the judiciary.
In 2020, AR was also camping at Shivute’s residence in Windhoek, demanding transparency in the JSC’s recruitment processes.
They also wanted the commission to embark on a public consultative process regarding the recruitment processes, including conducting interviews in public to ensure transparency.