The Judicial Service Commission (JSC) and then head of state’s decision to recruit Martha Imalwa as prosecutor general nearly 16 years ago has come back to haunt them.
A group of lawyers and prosecutors are now questioning the JSC’s need to recruit a new prosecutor general with 15 years post admission experience when the incumbent was not subjected to the same requirements during her appointment in 2004.
“Madam Martha Imalwa, who has been the PG for the last 16 years, never had any post admission experience neither has she attended any practical legal training."
Yet, the JSC considered her fit and proper for the position and extended her contract in 2013.
How do you go from zero to 15 years?” the concerned group questioned. Initially, Imalwa was appointed as prosecutor general for a 10-year term with effect from 2004. Her second term was renewed in October 2013, for a period of seven years. Her final term is expected to end in December this year.
The prosecutor general is appointed by the head of state on the recommendation of the JSC. Last month, the JSC advertised the prosecutor general’s position, just three months before the incumbent’s term comes to an end.
According to the advertisement, the applicant should have qualifications that would allow them to practice in all courts in Namibia and 15 years post admission as a legal practitioner. The applicant should have a track record of being able to act with integrity and impartiality, must be prepared to personally prosecute or lead appeals in appropriate cases, knowledge of the Namibian socio-economic context and government programmes.
Furthermore, the applicant should, by virtue of his or her experience, conscientiousness and integrity be a fit and proper person to be entrusted with the responsibilities of the office of the prosecutor general, according to the advert. Other requirements sought include experience in criminal litigation or other experience in the field of criminal justice, breadth of legal knowledge, particularly in areas that interface with criminal law, such as customary law, Proceeds of Crime Act (POCA), international cooperation in criminal matters. The group of prosecutors and lawyers who opted to remain anonymous because they appear before some members of the JSC claim that the requirements are too vague.
The concerned group want the JSC to clarify if lawyers working in state-owned enterprises or companies and have only spent half or a quarter of the 15 years as practising legal practitioners in courts qualify for the position. They are also asking whether State advocates in the High Court who have 10 years post admission, but spent 15 years or longer as prosecutors in all courts of Namibia, could qualify considering that there was never a requirement for a prosecutor to be admitted to appear in all courts in the country. “If not, why would the 10-year post admission not suffice for a prosecutor who has been drafting POCA applications and appearing in the High and Supreme courts? Some of the prosecutors are currently deputy prosecutor generals who got the positions without any admission requirement,” questioned the group. The group also want JSC to consider that not many black lawyers would be able to qualify for the position under the 15 years post admission requirement. In the same vein, the concerned group questioned the 10-year post admission, which is the requirement for the chief justice and lower than the 15-year post admission requirement for the prosecutor general. “The chief justice who holds the highest office in the Judiciary and presides over all types of cases in the Supreme Court only has a 10-year legal capacity requirement, yet it is required from the PG who mostly deals with criminal matters to possess a 15-year post admission qualification, which does not add up at all. It appears that it is easier to become the chief justice than the prosecutor general in Namibia,” noted the group.
Furthermore, the requirement for one to be a prosecutor general is higher in Namibia compared to other jurisdictions and is the position available to everyone regardless of their citizenship, as the advertisement did not stipulate any citizenship requirement.
In a response yesterday, the commission defended the amended requirements, saying prevailing circumstances at the time led to things being done differently.
“At the time nominations were primarily received from the Executive Branch for the JSC’s consideration of the nominee’s suitable with a view to recommending his or her possible appointment,” the statement read.
“The JSC has in the past taken a principled decision to review the practice and has decided to open up the process and introduce greater transparency in the appointment of the prosecutor general. It is in this context that the JSC, through the placement of the advertisement in media outlets, invited suitable qualified and experienced persons to submit their applications for consideration for possible appointment to the advertised position.”
The commission further said it would communicate to the public in due course its position over concerns around the nationality and post-admission requirements of the position of prosecutor general.