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Dragging Out the Law

This article was originally published in Africa in Fact, the journal of Good Governance Africa.

By Frederico Links

In September 2015, the Namibian High Court, in the country’s capital Windhoek, found Geoffrey Mwilima, a former opposition parliamentarian, and 29 others guilty in the so-called Caprivi treason trial. The court convicted the accused of a range of offences, including high treason, murder, and attempted murder. However, another 35 people were acquitted. The legal drama was “the longest criminal trial in Namibia’s history,” according to The Namibian, an online newspaper.

The verdict stemmed from an attack on Aug. 2, 1999, by members of a secessionist rebel group, the Caprivi Liberation Army, on a military base and police station in Namibia’s northeastern Zambezi region, formerly known as the Caprivi region. Eleven people, including three policemen and three soldiers, were killed. The Namibian authorities arrested around 300 people on suspicion of participating in the attack, or of sympathizing with it, and a few days later charged 132 of them.

Nico Horn, a professor of law at the University of Namibia and former state advocate, was very critical of the Namibian judicial system’s handling of the trial. “A more intelligent way of prosecuting would have [kept] ringleaders together and those [presented] for minor crimes separate,” he said to a local news outlet in September. The people who had been acquitted had spent 16 years in prison and would likely want to sue the state, Horn added.

From its beginning the trial got caught up in procedural issues. The High Court refused an application for bail by 53 of the defendants in September 2001. Another application for bail by two of the defendants was refused in December 2002. In June 2003, Albert Kawana, then (and again presently) justice minister, told parliament that the trial would take “between two or three years” to conclude.

He blamed the accused, “who decided to enforce their rights before the courts of law,” for the delay. International human rights group Amnesty International questioned the “inordinate length of time” the state was taking to bring the accused to trial, citing its own “Fair Trials Manual” of 1998.

Then, in February 2004, Judge Elton Hoff in the High Court ruled that 13 of the defendants had been brought “irregularly” to trial, having been returned to Namibia without formal extradition procedures from Zambia and Botswana, where they had sought political asylum. Ten of the accused were convicted and sentenced in 2007, but the Supreme Court set the convictions aside, judging that Namibian authorities had not followed formal extradition procedures.

Over the years the High Court has had to free some of the accused from imprisonment for several reasons, including lack of evidence and the deaths of witnesses. During the long years of the trial, some 22 people died in custody, according to official figures.

Arguments in the High Court trial finally closed in August 2014. By September 2015, when Judge Elton Hoff finally began handing down his judgment in the case, only 65 suspects out of the original 300 remained in the dock. Arguments in mitigation were expected to take place in early October, according to The Namibian.

The slow pace of the Caprivi treason trial was not unique. In late 2008, the Law Society of Namibia, a body representing lawyers in the country, said that the large number of cases that were clogging the courts was having “a deleterious effect on the rule of law and human rights in Namibia.” Judges and magistrates who needlessly allowed cases to drag on should face misconduct charges, the LSN said.

Article 12 of Namibia’s constitution stipulates that every trial must be fair and conducted within “a reasonable time,” though it does not define the length of such a period. Namibia is a signatory to various regional, continental and international protocols and treaties that bind it to this legal principle, including the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. These instruments do not specify time limits.

The High Court and the Judicial Service Commission have tried to accelerate justice by writing guidelines, which came into effect on Dec. 1, 2009, and include prescriptions of the time it should take to deliver a judgment. A new case management system was also introduced, requiring judges to do their job properly. But other factors continued to bedevil the system, among them mismanagement by judicial officers and administrative staff, corruption, perennial understaffing, and under-resourcing.

Poor police investigative work and a lack of competence among prosecutors and magistrates have compounded these problems. Speaking at a workshop in February 2015, the prosecutor general, Martha Imalwa, suggested extending court working hours into the evenings and holding weekend courts to deal with the case backlog.

From May 2011 to November 2012, the High Court finalized an average of 58 cases per month, more than three times the average 17 cases a month it had adjudicated in 2010. In 2014, the High Court also introduced alternative dispute resolution or mediation as an option in civil matters to expedite cases and reduce legal costs. More than 500 court-accredited mediations were completed between June 2014 and March 2015, according to the High Court’s chief registrar, Elsie Schickerling.

In 2014, Hage Geingob, then Namibia’s prime minister and now president, pushed through a raft of constitutional amendments to make the justice system more efficient. Critics have accused Geingob and the political party of which he is vice president, the Swapo Party (formerly the South West African People’s Organization), of using their parliamentary majority to push through amendments to the constitution.

One of the proposed amendments includes the creation of an office independent of the justice ministry to administer the courts at all levels. A draft bill that would pave the way for the establishment of the Office of the Judiciary had yet to be tabled, Chief Justice Shivute told staff at the Keetmanshoop Magistrate’s office on Sept. 14, 2015.

Yet cases still drag on. Namibia’s ombudsman, John Walters, wrote to Judge Petrus Damaseb in mid-2015 to enquire about outstanding judgments that had been brought to his attention. In reply, the judge president, who presides over the country’s High Court, said that all the matters in question would be finalized by late October 2015.

Systemic problems, such as overloaded dockets, continue to impair the High Court’s efficiency, according to Toni Hancox, director of the Legal Assistance Centre, a public interest law firm based in Windhoek. Judges are still taking too long to hand down judgments, even interlocutory ones that are intended to provide clarity on points of law, she says.

Meanwhile, few or no reforms have been successfully introduced at the lower court level. In June 2013, the ombudsman released a scathing report detailing a dismal scenario of long delays and bottlenecks.

Among others, the report mentions the case of Daniel Shakasha, who was being held in the Walvis Bay prison, and filed an appeal against his guilty verdict and imprisonment in September 2005 with the clerk of the court there. After receiving no response, he sought the assistance of the ombudsman, who sent the clerk a series of letters asking about the case between November 2006 and November 2012. Even so, the clerk never filed the appeal.

On Jan. 8, 2013, the Walvis Bay prison authority informed the ombudsman that Shakasha had been released. “His right of appeal was frustrated by the individual failing of the clerk of the court to timeously prepare and file the appeal record with the registrar,” the report concluded.

In international terms, Namibia gets relatively high marks. It is ranked 53 out of 188 countries in the World Bank’s 2015 rule of law rankings. According to the 2015 Ibrahim Index of African Governance, the country was fourth in Africa for upholding the rule of law in 2014. Yet it would appear that the recent flurry of reform initiatives has so far had little effect on the slow pace of justice.

At the time of writing, the last stages of the Caprivi treason trial had been yet again postponed until March 30, 2016. If there is no further delay, it will have taken 17 years to conclude the trial. Walters, the ombudsman, remains critical of “the unreasonable amount of time from arrest to the conclusion of a matter” in Namibia.

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Frederico Links is editor of the Namibian monthly current affairs magazine Insight Namibia and a researcher on governance issues, mostly for the Institute for Public Policy Research, a think tank based in Namibia.

[Photo Courtesy of Wikimedia Commons]

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