The Judiciary has dismissed allegations of nepotism and maladministration said to be rife at the Magistrates Commission, especially in the process of appointing magistrates.
Contained in a letter distributed widely among the legal fraternity, the author(s) allege that the magistracy is packed with officials born in the Zambezi region.
The complainant claims that there are approximately 100 magistrates countrywide and the overwhelming majority are said to be from the Zambezi region and that those who qualify for High Court positions are mostly originating from one region.
The Judiciary confirmed that “approximately 29 magistrates who qualify for appointment to the High Court, 10 are from the Zambezi region. Thus, 34% is more accurate than the alleged 90%.”
According to the 2023 Census, the population of Zambezi makes up around 4% of Namibia’s population.
The sources allege that magistrates from the Zambezi region are disproportionally favoured and parachuted into high positions in the Magistrates Commission.
According to the complaint, some of the people who have been appointed and promoted are from the same region, others allegedly do not possess the requisite experience and qualifications.
Some are said to have close relations with Judge Orben Sibeya.
Responding to allegations, the Judiciary spokesperson, Vikitoria Hango reiterated that the process of appointing magistrates is guided by the Magistrates Act, which emphasises the importance of affirmative action and a balanced representation within the magistracy.
“The Office of the Judiciary reaffirms its unwavering dedication to Article 10 of the Namibian Constitution, which upholds the principles of equality and freedom from discrimination.
According to this article, all individuals are equal before the law, and no form of discrimination based on ethnic origin, race, or colour should be tolerated.
Hango continued, stating that: “As an office, we are resolute in our commitment to non-discrimination and equality. Therefore, we firmly stand against any discussions that promote racial or tribal dialogue, as these are contrary to the fundamental values enshrined in our constitution.”
This comes after allegations were levelled against the commission’s former chairperson, judge Orben Sibeya.
The allegations also suggest he played an active role in the appointment of his wife to the bench.
Both Sibeya (in a letter seen by this reporter) and the Judiciary have flatly denied any wrongdoing, saying his actions were above board.
The wait
New Era waited nearly four months for the Judiciary to answer detailed questions on the allegations.
According to the complaints, some of the people who have been appointed and promoted do not possess the requisite experience and qualifications.
A case in point is Selma Sibeya, who is Judge Sibeya’s wife.
She reportedly became a principal magistrate in Windhoek during his tenure as chairperson.
This publication sought answers from the Judiciary on what the judge in question did to extricate himself from the process to avoid potential conflict of interest.
“Judge Sibeya is no longer the chairperson of the Magistrates Commission as his term came to an end in June 2024. It is correct that his wife became a principal magistrate while he was the chairperson of the Magistrates Commission. At that stage, she was already a senior magistrate and qualified in terms of experience and qualifications for the promotion. She was shortlisted by a shortlisting committee (of which Judge Sibeya was not part), she was interviewed by a panel (of which Judge Sibeya did not form part), and the recommendation was finalised via round-robin (Judge Sibeya did not partake in the round robin endorsement of the recommendation by the interview panel),” Hango went at length to explain.
Article 83 (3) establishes the Magistrates Commission as a juristic body responsible for the transfer, discipline, removal, remuneration and other conditions of service of magistrates.
In a letter dated 18 June 2o24, purportedly authored by Sibeya, seen by this reporter, the judge responded to the allegations against him.
New Era could not independently verify if the letter was indeed written by Sibeya.
“A lot of names of the magistrates from the Zambezi region, mentioned in the article, were not appointed or promoted during the term of the present commission. Furthermore, the magistrates said to be my relatives are not related to me,” Sibeya is quoted as saying in the letter to his colleagues.
“My only family member in the magistracy is my wife, who was already a senior magistrate from 2018 (while my appointment to the commission is from 2021); her promotion to the position of principal magistrate followed the recruitment process, and when her matter was discussed at the commission, I recused myself, and records are available to that effect at the secretariat,” Sibeya purportedly said.
Further, it is alleged that Selma has been treated with kid gloves and is allegedly not rotated as others by the commission.
However, in response to New Era’s questions, the Judiciary stated: “Rotation is done at the discretion of the divisional magistrate. The commission is not involved with this. The divisional magistrate confirmed that Ms Sibeya has indeed been subjected to rotation, and investigations have shown that the allegation lacks merit.”
According to the whistleblowers, the rapid rise of these officials to the summit is attributed to Sibeya’s influence. Until June, Sibeya served as the chairperson of the Magistrates Commission.
Above board
Sibeya seemingly also affirmed that appointments within the magistracy are beyond reproach.
“The article labels the magistrates mentioned as originating from the Zambezi region, while a number of those magistrates do not come from the Zambezi region. Magistrates are not appointed based on ethnicity. It is also a fact that most magistrates are not from the Zambezi region. It is false to even suggest that magistrates from the Zambezi region constitute more than 30% of the magistrates in our country.
At the time of writing, Sibeya was the only Zambezi native serving in the commission, he said.
“The commission comprises of seven professional members, independently appointed by the minister of justice (‘the minister’), of whom I am the only one who hails from the Zambezi region. The commission adheres to good governance. The recruitment process has various stages with safeguards in place,” he said.
The process
In the judge’s letter, he said when candidates apply for positions in the magistracy, those who meet the requirements in terms of qualifications and experience are shortlisted by a shortlisting committee.
“As a result, only qualified candidates are shortlisted. Thereafter, the shortlisted candidates are subjected to written assessment by identified professionals and oral assessment by an independent interview panel to determine their suitability. After the oral assessment, the submissions from all the said recruitment committees and professionals are brought to the commission for deliberations and recommendations to the minister for appointment. The minister does not rubberstamp the recommendations of the commission, as stated in the article, but satisfies herself with the recruitment process before making the appointments. It is an insult to allege that she rubberstamps recommendations. Every appointment of a magistrate is made on the recommendations of the commission, and resolutions to that effect are kept by the Secretariat of the commission. The appointments are completely above board,” he went on to say.
Minister
Justice minister Yvonne Dausab is aware of the ongoing allegations.
“Thank you for sharing the questions with me. This is in the purview of the Chief Justice [Peter Shivute] and the Judicial Service Commission. I will forward these to the executive director, Mr Bernhardt Kukuri, for onward transmission to the Chief Justice,” Dausab said when contacted recently.
It is also false that there are no magistrates from other regions.
“The article also falsely states that there are no magistrates who originate from Kavango regions; there are no coloured people; Herero speaking people; Damara-Nama speaking people; and white people; while there are magistrates duly appointed who are from all the above ethnic groups, including the San community,” Sibeya is further quoted as saying.
It is further alleged that in May this year, a certain Dominic Lisulo, who did not have the required five years of bench experience from eight years of court experience, became a regional court magistrate.
According to allegations, he was allegedly appointed to become a regional court magistrate in Ohangwena, while there are many other qualifying magistrates in the northern local division. It is also alleged that he never attended an interview, which is a requirement.
To these claims, the Judiciary responded: “Mr Lisulo was assigned on a temporary basis to assist in the regional court in Ohangwena after the magistrate who was previously assigned to such court, also on a temporary basis, was retracted at his own request.
“At that stage, Mr Lisulo was a principal magistrate based in Ondangwa – the same northern division. He is highly experienced and has over 20 years of court experience as a prosecutor in the regional court and the High Court. He was appointed as a principal magistrate based on his court experience.”
Hango added: “He was assigned to the regional court based on his rank (principal magistrate) and experience. Temporary assignments do not require interviews as these are not permanent appointments.”
Division
Sibeya in the letter said: “I could address the status of each magistrate mentioned in the article by name, but I do not wish to fuel the division in the magistracy on ethnic grounds intended by the article.”
“When it comes to the appointment of judges of the High Court, the commission, including other organisations in the legal fraternity, nominates candidates, and it is the Judicial Service Commission that entirety decides on the qualification and suitability of the candidates.”
Ruse
Giving an in-depth insight into the commission’s modus operandi, Sibeya in the same missive added: “Where the commission sought the assistance of judges for training, it was in recognition of their expertise and experience that the commission sought to impart to the magistrates, free of charge, and with no incentive to the judges concerned. The commission also requested judges to serve as panel members at some of the interviews, and they took time out of their hectic schedules to assist the magistracy, and this should be appreciated instead of being rebuked.”
Sibeya also took issue with the whistleblowers’ decision to remain anonymous.
He believes this is simply a ruse.
From where the judge stands, there is nothing to fear.
“The author of the anonymous article states that he/she/they opted to remain anonymous in fear of reprisal or victimisation. The anonymity is used as a ruse to avoid responsibility and accountability for the calculated false and malicious allegations levelled against the commission, the mentioned magistrates, the judges, the minister, and myself.
“The term of the seventh commission comes to an end on 30 June 2024, and in the interest of fairness and accuracy, there is no basis to fear reprisal from a commission whose term lapses by effluxion of time in a matter of days,” the letter reads.
Internal observer
The Judiciary is one of the most sensitive organs of the State.
During the past few months, observations revealed that most officials within the Judiciary are sceptical or scared about going on the record about official internal matters, despite their right to freedom of expression being constitutionally guaranteed.
Most cite fear of reprisal or victimisation as their chief reason to remain silent.
Even lawyers running their own firms are unwilling to discuss their experiences as they fear losing their contracts with Legal Aid on whose money their firms depend for survival.
However, Natjirikasorua Tjirera, a senior Legal Aid lawyer, was willing to speak.
“It’s [the Judiciary] in fact the only organ of the State that needs people manning it to be trained and to be beyond reproach,” Tjirera said.
On the specific issue, he said, “The Judiciary has seen an unparalleled rise of people from the Zambezi region to its benches both in the superior courts and its magistrates’ courts, both regional and district.”
Tjirera has a theory to back his claims.
“It can be because a lot of people who apply for these jobs are from the Zambezi region, and they are mostly the only competent people on the interview panels. It could be that most other people do not apply for these positions, but the reality is that there is a suspiciously high number of presiding officers from the Zambezi region to the judiciary. It’s important to know that because of the positioning of these people in district courts, they are most likely to become regional court magistrates and then easily become high court judges,” the lawyer said.
According to Tjirera, they even joke about it in their spaces.
“I remember one day joking with my friends from that area [Zambezi] about whether they have meetings every December to strategise on how they can take over the Judiciary. Their presence in the Judiciary is not proportional to their population. It is a fact that the people of the Zambezi are over-represented in the structures of the Judiciary. The question is whether other tribes apply for these entry magisterial positions, which eventually lead to the elevation to more senior positions in the Judiciary,” he said.
Driving his point home, he said, “I think it’s important to know the facts of who applies and who does not apply and what leads to the dominance, but truth be spoken, they’re dominating the Judiciary.”
Tribalism
For years, allegations of tribalism in the recruitment process have been brought to light.
Back in 2020, the Central Procurement Board of Namibia (CPBN) was engulfed in a tribalism storm after it was reported that allegedly, non-Oshiwambo-speaking employees at the CPBN were being removed by a group within the organisation for supposedly being “unamenable to corruptive practices”.
These claims were denied by the deputy chairperson of the CPBN at the time, Lischen Ramakhutla, stating that employees (Oshiwambo-speaking or not) on short-term contracts not given permanent employment had failed the vetting process.
The decision to vet had been made by the finance ministry, under which the procurement board falls, a local paper reported at the time.
Last year, British High Commissioner to Namibia Charles Moore also refuted suggestions that Aawambo people were favoured in the latest Chevening scholarship awards.