Formerly South West Africa, Namibia
has a population of about 2,3 million people. A nation that bore the brunt of
apartheid and being among the last states to gain independence in Africa, the
country has a history of transformation to tell. The law has been at the center
of that transformation. Thanks to the University of Cape Town’s Democratic
Governance and Rights Unit, I had the opportunity to witness this first-hand.
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| Left to right: Musa Kika (University of Cape Town); Mrs Yvette Hűsselmann (Legal Researcher at the Supreme Court); Ms Nelli Tjahikika (Deputy Registrar of the Supreme Court); Vera Kegel (Intern Legal Researcher from the Netherlands), and Michael Rhimes (Oxford University) in Courtroom B. |
I arrived in Windhoek, Namibia on 19
September 2015. On the 21st of September, I walked together with my
colleague, Michael Rhimes from Oxford University, into the Supreme Court
building. The Supreme Court building is a majestic structure in the city; an
architectural piece of art lying next to the Hilton Hotel, and close to the city’s
museum. It overlooks Independence Avenue, the major street cutting across the
relatively small city. Just as the Namibian law is developing under the
leadership of the Supreme Court, Windhoek itself is a growing city. It is a
city under construction. One notices
the conspicuously sprouting construction on every corner of Windhoek. What
makes Windhoek particularly a city of note for those in the legal profession is
that it is Southern Africa’s judicial capital, housing the formerly SADC
Tribunal, now SADC Administrative Tribunal.
We had just arrived with the
facilitation of the Democratic Governance and Rights Unit (DGRU) as part of the
Southern African Judicial Assistance Programme to assist the Chief Justice and
the Judges of Appeal with legal research. Mike and I were introduced to the
staff of the court, then the Deputy Registrar, then to the Judges of Appeal and
lastly the Chief Justice who had been away touring the country’s magistrates
courts when we arrived. And what a welcome we received. Judicial clerking was
back for me, after having done my first clerking for Justice Malcolm Wallis of the
Supreme Court of Appeal in South Africa.
The Chief Justice of Namibia, Justice
Peter Shivute, relatively young, epitomises energetic leadership in a judiciary
engaged in processes of both transforming the law and transforming the judiciary
itself. As if being the seat of the SADC
Administrative Tribunal is not enough to make Windhoek a city of legal note, Justice
Peter Shivute is also currently the Chairman of the Southern Africa Chief
Justices’ Forum. The Deputy Chief Justice is Justice Damaseb, who dually serves
as Judge President of the High Court. A hands-on and enthusiastic judge,
Justice Damaseb has played a central role is facilitating the smooth-running of
the High Court through ongoing reform of the High Court processes. The Supreme
Court has also benefited immensely from his presence.
The two other permanent judges,
Justices Dave Smuts and Sylvester Mainga are both driven and motivated to see a
functional and smooth-running Supreme Court. Smuts JA, in whose chambers I
seat, is a very enthusiastic and engaged member of the bench. He is always in
search of ways of making the court system work effectively. I share with him
one particular attribute: affinity to practicality in dealing with legal
problems. Working with him has been most rewarding. He passionately tells of
his work in apartheid Namibia, and his law school days at Stellenbosch
University in South Africa, and then at Harvard Law School in the United States,
and each time he walks into his office, he makes a stop at my desk for a chat.
To assist the permanent judges,
several ad hoc judges are appointed each term. Thus far the court has had the
benefit of being served by some of Southern Africa’s most illustrious judges.
These include Justice Strydom, who is a former Chief Justice of Namibia;
Justice Chomba from Zambia; Justice Kate O’Regan who has served on the South
African Constitutional Court for 15 years; Justice Sandile Ngcobo, former Chief
Justice of South Africa; and senior judges from Zimbabwe, among them Justices
Mutambanengwe, Ziyambi and Garwe.
I had the opportunity to meet Retired
Judge Mutambanengwe at the court during an informal visit. Retired, and having
completed his acting stint, he twice acted as Chief Justice at the Namibian
Supreme Court. In the Supreme Court boardroom where we sat the octogenarian
Justice Mutambanegwe who made his mark in the legal fraternity in pre-independence
Zimbabwe nostalgically chronicles his days in practice in Harare at a law firm
he founded, which he later left to join the bench.
South Africa’s celebrated jurist, the
former Chief Justice Ismail Mohamed at one point served as the Chief Justice of
Namibia, before his South African service. Back in South Africa, just the month
before my arrival in Windhoek, I had the privilege to receive the Ismail
Mohamed Law Reform Essay Award in Centurion for an article I wrote in 2014
about the efficacy of the Public Protector’s office in that country. I had come
out first in the LLB category nationwide. Justice Mahomed’s idea of justice
strikes a chord to this day. At the center of the Supreme Court building, which
has come to be known as the memorial garden, a bronze bust of the great jurist
Ismail Mahomed stands to his memory.
Upon arrival at the court no time was
wasted. Mike and I were immediately given access to all the court records of
the matters on the role for the term. We resolved to divide cases among
ourselves, and work began. This, as one would imagine, has been an extremely rewarding
experience. Through this experience, we have seen the law in action, and have
dealt with cases knowing that people’s fate rest in the legal research and
counsel that we provide. Our research is invariably followed by meetings with
the judges hearing the matters to discuss and deliberate, at times leading to
more pointed and further research. Quite unusual for a legal setting, the
Supreme Court of Namibia’s small staff and judges complement forms a
closely-knit community. For instance, most recently all the staff and judges of
the court - from the lowest ranking cleaner to the Chief Justice, gathered on
the same table for a meal to celebrate the departure of a fellow interning
legal researcher from the Netherlands. This culture, one would not find at many
Supreme Courts, not to mention the lower courts.
On 12 October 2015, the first day of
the new term at the court, as the judges assembled in the Chief Justice’s
chambers, we assembled in one of the researchers’ offices, ready for court. Making
our way into Court B, we positioned ourselves in front of the judges’ bench,
and for the first time had the opportunity to experience court proceedings from
the side of the bench. As a researcher at the court, one sits with the judges
in all the cases being heard for the entire term, including when judgments from
the previous term(s) are being handed down.
Court B! I was reminded of the
documentary “Mugabe and the White African”. When the then SADC Tribunal was
still sitting, the case that was to break the Tribunal, the land reform matter
of Mike Campbell v Government of the Republic
of Zimbabwe, was heard in this very courtroom. There, unspeakable things
happened: then Zimbabwe’s Deputy Attorney-General Prince Machaya and his team
staged a disgraceful and unprecedented walk-out while the court was in session,
because the judges would have none of his team’s endless antics to seek postponement
of the case for the umpteenth time. My country, Zimbabwe, has a long way to go
to respect justice and the rule of law to this very day.
Namibia has made huge strides in
using the law to turn around its fortunes, and in creating an advanced legal
system in the direction of the rule of law and equality. The country has an
expansive Constitution - one of the most liberal on the African continent, and
judges and lawyers have used this over the years in developing progressive jurisprudence.
the close connection between Namibia and South Africa is evident in the law:
South Africa’s legal system has so much influence on Namibia’s. Practitioners
still largely rely on South African case law, including the judges, but the
High Court rules took a stance and included a provision requiring that where
foreign cases are cited, counsel must certify that they could not find any
local authority to use, and that there is no local authority to the contrary of
the foreign authority cited. The Chief Justice and the Deputy Chief Justice
have particularly taken it upon themselves to ensure that the precedential
value of local jurisprudence is appreciated and developed upon. The Deputy
Chief Justice has been vocal about this in court, in his judgments, and in his
Chambers as we discussed our legal opinions. The Deputy Chief Justice Damaseb,
what a caring man! I recently got a call from his clerk. I was to report to his
Chambers immediately. Maybe I messed up a legal opinion? I pulled the chair to
sit in front of him. “I just wanted to
check on you and find out how work is going – I have been away for a few days”,
he said. I will not forget that day.
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| Left to right: Michael Rhimes; Justice Frederick Chomba; Chief Justice Peter Shivute; Deputy Chief Justice Petrus Damaseb and Justice Dave Smuts. When this photo was taken (after a court session) I had flown out to Zimbabwe to take my bar examinations. |
Through interacting with the judges,
through the court processes, one seems the genuine desire to transform the
country’s law for the better, disentangling the shackles of apartheid and
creating a society based on the rule of law, constitutionalism and equality. The
Supreme Court is implementing a case management system to enhance its capacity
to deal with cases that come to the court. This is a tried and tested way of
handling cases that has been effectively used in courts in South Africa, and
many judiciaries across the region are still to adopt it.
Going forward, interesting times lie ahead
in Namibia’s judiciary. The Office of the Judicary Act, 2015, now awaits presidential
assent after which the judiciary will become independent as the Office of the
Judiciary. This is a battle won by the judiciary. With the establishment of the
Office of the Judiciary, the Chief Justice will be the head of the judiciary,
and will not answer to the Ministry of Justice. The Office of the Judiciary
will have both financial and administrative autonomy, with an independent
secretary/director of finance. Preparations are fully underway to facilitate this
transition. Under this arrangement, only the District Courts will remain under
the control of the Ministry of Justice.
One senses the excitement and anticipation in the judiciary and the
administrative staff on the prospect of this development. Beyond the desire of
independence on the part of those involved in the judiciary, this move ought to
be celebrated as an advancement of justice in Namibia. This is a judiciary
seeking complete independence to dispense justice with full independence, without
fear or favour.
With our little contribution to the
court as researchers, and the court having experienced the benefit of having
researchers, the Supreme Court has expressed firm interest in establishing a
proper and fully-fledged research clerkship programme. We are currently
hands-on on this and are making our input towards this worthy initiative. This
would go a long way in providing the judges with the necessary assistance in
their duties in a substantial way, and the court is planning to launch this
programme in 2016.
On our part, we are privileged to be interfacing
with the dispensing of justice in Namibia, and to be learning the law in action
in such a setting as the Supreme Court. For me, this has been a most enriching
experience, professionally and otherwise. In our small way we have made some substantial
contributions to the work of the court. In turn, the court has taught us the
law and about the law in a substantive and practical way. I am able to say that
my legal research skills have grown at a rate that I have never experienced
before, within a very short space of time. I have learnt that there are things
one will not learn anywhere else, except in the courtroom, and this inside view
of the court will become instrumental in practice. In short, the Supreme Court
is without doubt the best place I have studied the law in action. On a higher
deliverable, having the opportunity to contribute to the country’s
jurisprudence, though assisting the judges in solving the nation’s legal
problems, is to be cherished.
The DGRU’s Judicial Assistance
Programme is a worthy investment into African judiciaries, and into developing
young lawyers who will make an impact in the legal field. Indeed, the
judiciaries bear the primary duty to serve the interests of justice, and to dispense
justice to their countries. Notwithstanding, it will take the active and
proactive intervention but stakeholders and institutions such as the DGRU, to
lend their technical support and knowledge where such assistance can be put to
good use. Mike and I have a few more months in Windhoek, Namibia and seemingly,
interesting times lie ahead as we continue assisting in the dispensing of
justice to those who need it. I will share about our non-judicial escapades in
this land of the brave separately.
Musa Kika
November 2015, Windhoek Namibia.
Postscript:
We
left Windhoek just before Christmas in December 2015. Mike flew back to Europe
and I drove to Harare through the Caprivi Strip, via Botswana and past the Victoria
Falls. A lot has changed since we left Namibia. I was to join the Supreme Court
in Windhoek permanently beginning mid-2016, but that never happened as I then
left for Harvard Law School in the US to do my Masters. The Office of the
Judiciary Act, 2015 has since been signed into law, and change has been
effected to the functioning and administration of the judiciary. Mike went on to
work
