It is salutary to acknowledge the trendsetting work of the drafters of the Namibian Constitution in the administrative justice enterprise. Namibia is hailed for having pioneered the constitutionalising of the right to administrative justice in common law Africa. This pioneering example inspired countries such as South Africa, Malawi, Uganda, Kenya, and Zimbabwe to follow suit.
The right to administrative justice, as guaranteed in Article 18 of the Namibian Constitution, entrenches a culture of justification. In other words, a culture in which every exercise of power is expected to be justified. It requires administrators and others clothed with public power to account for their conduct and to only take decisions that are lawful, fair, and reasonable. Article 18, properly construed, serves as a tool to pursue good governance, transparency, accountability, and social justice.
To give context to the above, this writing primarily aims to scrutinise and question the recently announced transfer of Commissioner Nelius Becker to the National Forensic Science Institute of Namibia (NFSI) through an administrative justice lens.
On the 15th July 2020 various media outlets reported that the Inspector-General of the Namibian Police (NamPol), Sebastian Ndeitunga, transferred Commissioner Nelius Becker from heading the Namibian Police’s crime investigations department to head the NFSI.
This, curiously, occurs less than a year after Becker was poached from the Anti-Corruption Commission (ACC) to become NamPol’s Commissioner of the Crime Investigation Directorate (CID). Incidentally, at the time of his poaching, Becker was the Chief Investigator at the ACC. He was the key figure in the Fishrot investigations. Two months into his position at NamPol, Becker reportedly led the arrests of key figures implicated in the Fishrot saga. In less than a year of him being at the CID he is being transferred to head an institution he is not properly qualified to lead.
There is no doubt that the Inspector General has the authority to transfer his staff, including Commissioner Becker, at his pleasure. The Police Act empowers him to do so. However, what is questionable is the timing of the transfer and what appears to be the arbitrary use of public power. It begs several questions. Why the multiple change of position for Becker? Could it be to frustrate both the person, Nelius Becker, and or to maybe derail the ongoing Fishrot investigations?
It is worth pointing out that the authority given to an administrative decision-maker, empowering him/her to exercise a public power or to perform a public function, is circumscribed. For instance, our public law makes it unacceptable for discretionary power of one official to be usurped by another. As such, a person in whom the authority is vested is precluded from ‘taking direction or instruction’ from another person, regardless if the former is a subordinate to the latter or not. A decision taken under such circumstances constitutes an unlawful dictation which is incompatible with Article 18. This was made clear by both the High Court and Supreme Court in the case of Anhui Foreign Economic Construction v Minister of Works and Transport. One is left wondering whether the poaching, and eventual transfer, of Commissioner Becker is a classic case of ‘taking direction’ from an invisible third force. Such a directive, if that is the case, would render the transfer challengeable under the rubric of lawfulness.
Furthermore, an administrative action/decision can also be unlawful if the decision-maker can be shown to have abused his/her power. The law does not condone decisions taken for ulterior purposes or motives, in bad faith, or one taken with fraudulent intensions. Such decisions fall under the umbrella of abuse of administrative discretion rendering them unlawful and nullable upon review. The form of abuse of power relevant to Commissioner Becker’s transfer debacle is commonly referred to as acting in fraudem legis.
When acting in fraudem legis, the administrative action is disguised to escape the provisions of the law whilst the action taken falls squarely within the parameters of the law. The supposed authorised decision of the administrator is thus nothing but a sham. The decision deliberately and intentionally was made to circumvent the spirit of the law. The Supreme Court, in the case of the Government of the Republic of Namibia v Dereje Demmse Getachew, confirmed that the principle espoused in the term ‘acting in fraudem legis’ forms part of our law.
The temptation is almost irresistible to outrightly state that the decision to re-assign Commissioner Becker to the NFSI is tainted with fraudulent intent. Why would a person who does not have the necessary qualifications and experience be transferred to head a highly specialised multi-disciplinary scientific research facility? This brings into question the rationality of Becker’s transfer, tainting it further with unreasonableness in contravention of Article 18. What really is behind this obvious mismatching of skills? The reasons given by the Inspector General, with all due respect, are not convincing and warrants to be treated with the contempt it deserves.
On a personal note, Commissioner Becker, the nation salutes your bravery and tenacity in fighting corruption and organised crime. Are you aggrieved by your transfer to the NFSI like some of us are? If so, I implore you to challenge this dubious decision. Article 18 endows you with the right to do so. Such a challenge will most certainly serve as a reminder to the Ndeitungas of this world that ours is a constitutional democracy based upon the founding values of constitutional supremacy, and the rule of law, amongst others. Building on these, Article 18 serves as the primary bulwark against arbitrariness and administrative malpractices. I am convinced that the IG’s decision will not survive an Article 18 challenge.
•John Nakuta lectures administrative law and human rights law at the University of Namibia (UNAM). He identifies as a social justice academic. This opinion article is written in his personal capacity.