Windhoek High Court Judge Boas Usiku will deliver his ruling on an application by former minister of justice Sakeus Shanghala, his friend and business partner James Hatuikulipi and Pius Mwatelulo for consent to lodge an application to challenge acting Judge Kobus Miller’s appointment as acting judge because of his advanced age.

The Namibian Constitution stipulates that a sitting judge may not be over the age of 70. As such, they said they are afraid that Judge Miller will not see the trial through to the end. In their application, they cited Judge Miller and Judge President Petrus Damaseb.

While it was an unopposed motion, Judge Usiku decided that instead of issuing an order immediately, he would postpone the matter for a ruling.

Shanghala and co are asking the High Court to allow them to institute an application to set aside as unconstitutional the appointment by the President, on or about 19 January 2023, of the second respondent (Miller) as an acting judge of the high court.  In papers filed in support of their application, they aver that Miller is already 75 years old, being born in January 1948. In several letters written to the President, the Judge President, Deputy Judge President and the Government Attorney, the lawyers of the applicants set out the reasons for their application. In the letters, they aver that Judge Miller’s appointment as acting judge is not in line with Article 82(3) of the Constitution. 

Article 82(3) precludes the appointment of a person as an acting judge after the person has reached the age of 70, they submitted. They said Miller was 74 when appointed, and turned 75 soon after. In the result, they say the appointment of Miller as acting judge is unconstitutional, and should be set aside. They base their assertion on the provisions of Article 82, which governs the appointment of judges and acting judges by the President. The Attorney General, however, indicated that they will oppose any application by Shanghala and co for the removal of Judge Miller from the bench, especially since he is scheduled to preside over the Fishrot trial. 

The AG stated that the appointment of Miller is consistent with the Constitution and the law. Several attempts by the Fishrot accused to have Judge Miller recuse himself from the trial for perceived bias was met with failure. The applicants are represented by Murorua, Kurz and Kasper.

-rrouth@nepc.com.na