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Opinion – A justice system bound by outdated rules

Opinion – A justice system bound by outdated rules

Namibia’s Constitution, celebrated for its emphasis on human dignity, access to justice and fair trial guarantees, sets the tone for an inclusive legal order. Articles 12 and 25 of the Constitution clearly entrench the right of every person to approach a court for redress when their fundamental rights or freedoms are violated. However, the practical enforcement of these rights is obstructed by a procedural doctrine that remains deeply entrenched in colonial legal tradition, the doctrine of locus standi.

After carefully examining the literature and case experiences concerning locus standi in Namibia, it becomes evident that access to justice is not determined solely by the strength or merit of a claim, but rather by a litigant’s ability to satisfy outdated technical requirements. 

For far too many Namibians, especially those from impoverished or marginalised communities, the courts are functionally inaccessible.

The courts demand that those who bring matters before them must show a “direct and substantial interest” in the issue at hand. 

This strict threshold, drawn from the Roman-Dutch common law, is too often used to reject claims without even considering the merits. 

The result is devastating.

Individuals and groups raising serious constitutional, social and commercial concerns are denied access because they do not neatly fit the court’s definition of an aggrieved person.

The injustice of this approach is especially visible in cases where political parties seek to challenge electoral irregularities or legislative decisions. 

Several cases have been possibly dismissed at the preliminary stages for failing to provide security for costs, effectively turning constitutional litigation into a pay-to-play system. 

Political parties with limited resources are silenced – not because they are wrong in law, but because they cannot afford the price of admission.

The same procedural rigidity is experienced in matters involving polygamous marriages. 

Lawyers representing clients in such unions face near-impossible hurdles in getting the courts to hear cases involving inheritance, property rights and family recognition. 

Time and again, they are told their clients lack the locus standi to be heard. 

The message is clear: unless you fit a narrowly defined mould of legal identity, your voice has no place in our courts.

Even in commercial disputes, especially those touching on public procurement, regulatory oversight or economic misconduct, the requirement of a personal legal interest shuts the door on concerned business owners and whistleblowers. 

It is no exaggeration to say that locus standi, as currently applied, is shielding injustice rather than revealing it.

Need to rethink 

In a constitutional democracy like Namibia, the Judiciary is entrusted not only with interpreting laws but with safeguarding democratic values. 

One such value is the principle of open and equal access to justice. 

Yet, under the current standing doctrine, the Judiciary appears more concerned with defending legal technicalities than ensuring that the rights enshrined in the Constitution are practically accessible.

The judiciary’s overreliance on inherited common law concepts, without sufficient adaptation to Namibia’s constitutional context, creates a serious disconnect between law and society. 

The Law Reform and Development Commission (LRDC) recognised this gap in its 2014 discussion paper, recommending the introduction of a Standing in Civil Actions Act. 

Such legislation would codify more inclusive standing rules, including public interest, representative and organisational standing. 

However, no such reform has yet been enacted.

The courts themselves have been hesitant to embrace these broader principles in their judgments.

Namibia does not need to reinvent the wheel. Comparative jurisdictions such as South Africa and India offer instructive models. 

South Africa’s constitution explicitly allows for a wide range of standing, including claims brought in the public interest or on behalf of those unable to act for themselves. 

Similarly, India’s innovative development of Public Interest Litigation (PIL) has empowered citizens, activists and organisations to bring cases on behalf of the marginalised, the environment and the voiceless. These reforms have enabled courts in those countries to serve as genuine venues for democratic participation and accountability.

Namibia’s judiciary, on the other hand, has lagged. While cases such as Uffindell v Government of Namibia hinted at a more liberal interpretation of standing, these instances remain isolated and have not yet shaped a consistent or binding judicial philosophy. 

In the absence of progressive judicial leadership, litigants who seek justice on behalf of others are routinely turned away. 

This is not a reflection of judicial incapacity but a choice rooted in an overly cautious and technical approach.

But it need not remain this way. 

The Constitution does not require the courts to limit access to those with a narrowly defined legal interest. 

Rather, Article 25 empowers the Judiciary to be a mechanism through which rights are defended and enforced in the interest of all people, particularly those who cannot defend themselves.

Judges should feel empowered to interpret standing in a purposive and inclusive manner. 

A living constitution demands a living jurisprudence, one that evolves to meet the social, political and ethical challenges of the time. 

It is the responsibility of the Judiciary to ensure that its procedures do not frustrate constitutional ideals but enable them.

Ubuntu and inclusive justice

Namibia’s legal tradition must not only reflect its constitutional text but also its cultural identity and philosophical heritage. 

One such heritage is Ubuntu, the African concept of shared humanity, community and mutual care. 

Ubuntu teaches that justice is not a solitary pursuit but a communal responsibility. 

It recognises that individuals do not exist in isolation, and neither should their rights.

In South Africa, Ubuntu has already been integrated into constitutional jurisprudence, helping judges navigate complex questions about human dignity, reconciliation and restorative justice. 

Namibian courts would do well to follow suit. 

In the context of locus standi, Ubuntu reinforces the idea that one’s harm is everyone’s concern. 

It justifies a broader, more compassionate doctrine of standing that allows representatives, organisations and concerned citizens to speak on behalf of others who cannot speak for themselves.

Incorporating Ubuntu into legal interpretation would mean shifting away from the Western-centric notion of procedural exclusion and toward a vision of justice that is inclusive, humane and contextually relevant. 

It would allow courts to consider not only whether the litigant has a personal stake in the outcome, but whether the issue raised has a broader impact on justice, accountability or dignity.

There is nothing in Namibian law that prevents the Judiciary from embracing Ubuntu. 

There is everything in the Constitution that calls for it. 

Article 1 speaks of Namibia as a democratic state, founded on the rule of law and justice for all. 

This must include not only formal equality but substantive access, especially for those who, due to poverty, culture or history, remain on the margins of the legal system.

Namibia deserves no less.

*Brian Ngutjinazo is a final-year law student at the University of Namibia.