Journalist Kuzeeko Tjitemisa spoke to the Minister of Justice Yvonne Dausab on her short, medium and long-term plans to enhance justice and to expound on the challenges facing the ministry and the state of the judiciary system.
KT: With your history as an academic and your stint as the head of the Law Reform Development Commission (LRDC), what do you think are the greatest challenges facing the justice ministry and how do you intend to deal with them?
YD: As a ministry, we are aware there is much greater expectation for us to ensure maintenance dues are paid on time and when required; that our assistance in administering deceased estates must be done at a much faster pace and the provision of protection and assistance in matters of domestic violence, sexual violence and access to legal aid must be continuous and responsive to the needs of Namibian people.
So, what we intend to do is improve public service delivery. First, we intend to secure the services of a dedicated magistrate to handle maintenance cases and to improve the system of investigations and payments.
Because the management and administration of courts fall under the office of the Judiciary, we are operating under a Memorandum of Understanding (MoU) to smooth the interaction between court staff and our investigators.
In respect of Legal Aid, we are working on a plan to increase the number of in-house counsel so that we reduce on outsourcing that function, which eats in quite significantly on our budgetary allocation for legal costs.”
KT: Both the Office of the Prosecutor General and the Directorate Legal Aid fall under your ministry, and the nation has been crying about the slow pace of justice, how do you want to change that?
YD: Slow pace of Justice has various factors to consider. I think the prosecutor general (PG) and the Directorate Legal Aid are doing well with less. I have been apprised since I joined the ministry that there were human resource limitations and that there was every effort to address concerns of a backlog. But the wheels of justice require oiling from various key stakeholders such as the members of the legal profession, the judiciary, the public (accused persons and witnesses) and structural and textual challenges in the application of the law. Sometimes, delays are caused by the parties involved in the proceedings. For instance, the expectation is that everyone must be ready for trial but the behaviour of stakeholders cannot be predetermined. It is sometimes informed by preliminary trial issues: on such matters as completeness of investigation, readiness or availability of independent counsel and availability of judicial officers, especially at remote stations. What is important is that when delays are envisaged, there is effective communication between the parties and the next steps.
KT: Are you content with the work of the community courts, and is there any room for improvement?
YD: Community courts are Namibia’s first line of access to justice in our rural communities and have become the immediate solution to the exorbitant legal costs of adjudicating matters in the judicial system. These courts have impacted the justice system because of their distinct and prominent characteristics and due to their restorative nature, flexibility and the fact that they serve and provide access to justice to the majority of Namibians without necessarily looking at the financial status of the community members that utilise these platforms. In this regard, the Ministry of Justice and government by and large pride itself for recognising this system of justice that is close to the people – both socially and geographically. Community courts exist in all areas of traditional communities, which means people no longer have to travel long distances to magistrate’s courts for their cases. Community courts have become useful and desirable mechanism for the speedy resolution of disputes given their nature of being easily accessible. In this regard, the community courts can substantially be regarded as instruments that reduce the workload that magistrates have been experiencing over the years. All community courts are courts of record, which means they are required to keep written records of court proceedings and their decisions that can ultimately be relied upon by an aggrieved party on appeal. The process of integrating traditional courts into the legal system was initiated in 2003. There has been a significant rise in the number of registered and finalised cases over the years in the community courts, following the enactment of the Community Courts Act, 2003. With three weeks of court sessions in a month and an average of eight cases in a day, these courts process 1 500 cases in a year.
KT: Do you intend to empower more members of the marginalised communities?
YD: Yes, we need to join hands with the Division in the Office of the President, which addresses the plight of marginalised communities. However, there is a need to develop sectoral strategies and initiatives to improve the wellbeing of marginalised communities and to uplift their economic and social status through the promotion of social and inclusive integration. As part of the empowerment programmes of government, marginalised communities receive a deliberate mention and it is a priority.
KT: The Chief Justice spoke of the challenges that face the judiciary at the opening of the legal year and there has also been reports recently about the lack of magistrates in the north. How do you intend on solving these problems?
YD: The judiciary is seized with addressing the challenges identified by the chief justice and since becoming minister, I have been seized with the matter. A number of meetings have taken place and are envisaged for the next couple of months, including meetings with the legal profession and interest group to try and find a collective solution to the concerns raised in those courts, including playing my part to facilitate the appointment of additional magistrates as contemplated in the Magistrates Act of 2003.
KT: Are you generally happy with the pace of justice delivery in the country, especially with the constitutional imperative of the right to a speedy trial?
YD: I am happy that members of our public have access to legal aid and much-needed legal services are delivered to them at no cost. I am happy that we have court structures and that graduates can be employed to be magistrates, prosecutors, legal aid lawyers and legal advisors in various ministries, offices and agencies. I am happy that law students are attached to institutions like the Law Reform and Development Commission (LRDC), Attorney General and Legislative Drafters as interns as part of ongoing learning and training. I am aware that there are samples of incidents that give rise to perceptions of the slow pace of justice. We cannot deny that there are instances where the absence of a magistrate or a prosecutor can sometimes cause a delay but such absence is never deliberate. It must be seen within the context of the resource limitations we have and the need for us to do more with less. Justice and law must always be seen in its overall context.
KT: Are legal services, in your opinion, not too expensive for the common man and woman on the street? Is there provision for the poor in justice?
YD: Legal services are admittedly expensive for the common man or woman. In fact, many Namibians see it as prohibitive. The enactment of the Legal Aid Act, 1990, was intended to respond to the needs of the poor to be availed access to the courts and legal advice in circumstances where they would otherwise not be availed of such services. But also, we need to review the Legal Practitioners Act, 1995, to ensure we build in mechanisms to have members of the legal profession do more pro bono work. Envisage small claims court will also make a huge contribution to access to justice and the courts. We want to see more legal reforms that will ensure persons with disabilities are considered in existing and future legislation such as making sure our courts are structurally accessible and that sign language interpretation is also considered for court proceedings. These are all short, medium and long-term plans to enhance justice in this country.
KT: What are your general perceptions on the future of the justice systems in the country as well as the independence of the Judiciary?
YD: Over the years the independence, impartiality and integrity of the judiciary have been impeccable. It is an important Organ of State and with the advent of the Judiciary Act, 2015 this independence was reaffirmed. The decisions of courts are based on interpretation of independent legal text which is set out in laws and presentations of the case that is made by the parties. Justice is not always about winning a case. It is rather about the availability of a fair, just and reasonable process that is open to all on an equal basis and it is whether in the application of its own rules, consideration of the legal text and the case brought before it, the court is able to make an independent judgement and come to a conclusion. We may not always agree with the outcome of a court case but we must test it on the above basis. Not speculations and perceptions of what we think. The individual members of our benches, Supreme, High and Lower courts are people with a record of experiences, qualifications and passion and some have abandoned in many instances more lucrative lifestyles to serve justice in this country.
We must support them and respect their decisions. The appeal and review process is available to all Namibians to test any decisions you are not happy with. I think with the right support, attitude and collective approach to justice, we have a chance to make Namibians feel justly, fairly and reasonably served in their pursuit of justice and remedy.