allAfrica.com: Namibia: A Conflictual Situation a Scrutiny of the Several Posts of Pendukeni Iivula-Ithana (Page 1 of 3)

Namibia: A Conflictual Situation a Scrutiny of the Several Posts of Pendukeni Iivula-Ithana

Are Pendukeni Iivula-Ithana's five positions as Minister of Justice, Attorney General (AG) and legally responsible person for of the Office of the Prosecutor General, as well as being Secretary General and Member of Parliament for Swapo, in conflict of the Namibian Constitution? Summed up such, it is actually astounding that no one, especially the AG (the first legal position she was appointed to by former President Sam Nujoma) herself, has yet sought to address what is arguably one of the most contentious issues in the administration of justice in Namibia and its implications for the rule of law.

Although it is understood she is recipient of only one ministerial salary for holding the various posts, and is not currently paid as Secretary General of the party, Government does need to confirm publicly that this is indeed the case.

The real risk is the legal bankruptcy imposed upon the Namibian Constitution that her multiple positions pose to Namibia as a democratic state based on the rule of law with a clear separation of powers.

Never before in Namibia's history has so much legal power been concentrated in the hands of one person, and one wonders if this is what the Constituent Assembly had in mind when they set down Namibia's supreme law without explicit reference to separation of powers.

One could argue by not doing so, the founding fathers (and mother) naturally assumed that a separation of powers was always implicit.

International jurisprudence holds the separation of powers as intrinsic to maintaining a democratic state based on the rule of law, and prevent tyranny that arises from concentration of power.

Or as James Madison, a noted 18th Century American constitutional expert and president, put it: "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether hereditary, self-appointed or elective, may justly be pronounced as the very definition of tyranny."

The sad history of the many failed states in Africa bear testimony to what happens when this legal principle of the separation of powers is eroded: oppressive police states that only seek to maintain their own power at the cost of human rights, development and general notions of natural justice.

Ms Iivula-Ithana's personal views on the separation of powers are, sadly, not widely (if at all) known to the general Namibian public.

But as matters stand now, her many positions seriously undermine the checks and balances between the legislature, the executive and the judiciary - the core functions and features of our constitutional democracy.

In addition, she can - by virtue of not taking a clear legal position, or by postponing any decision required of her office - arguably paralyse almost any legal process that involves the state.

It has not come to that yet, but there is rising disquiet in legal circles about the role of the Office of the AG, especially with regard to legal matters referred to this office for opinion - only to be never heard of again, thereby causing a legal logjam that is quietly assuming critical proportions in the legal system.

Part of this problem, quite clearly, emanates from the multiple legal positions that Ms Iivula-Ithana currently occupies in the Namibian State and legal system.

As AG, she is part of the administrative leg of Government; as Minister of Justice, she is part of the executive; and as Swapo MP and Secretary General, she is part of the legislative.

In addition, as AG, she also serves on the Judicial Service Commission (Article 85), which appoints Judges in Namibia, where the weight of her plethora of legal positions arguably carries far more weight than any of the voices of the other four members of this august body.

Furthermore, as AG she is also finally responsible for the office of the Prosecutor General in terms of Article 87(a), which position exerts the biggest if indirect influence in the administration and execution of justice in Namibia.

Article 87(3), which holds that "no member of the Cabinet or Legislature shall interfere with [the judiciary]" and instructs "all organs of the State" to assist the courts in the protection of the judiciary's " independence, dignity and effectiveness", does afford some measure of constitutional protection of the separation of powers.

But this protection relies in no small measure upon the supposedly politically independent position of the AG as an "organ of the State", which is why the position of the Prosecutor General's Office also resorts under the AG's office.

Has this "organ" now become the tail that wags the dog? As custodian of the legal state as envisaged by the Namibian Constitution, the AG, as professional legal advisor to the President and his Cabinet, should be a strictly non-partisan position.

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