John Grobler
11 April 2008
Windhoek — 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.
Political conflicts of interest - especially when it comes to legal challenges to the executive - otherwise undermine the authority of this constitutional appointment, which some would argue has led to the slew of out-of-court settlements we have seen in recent years.
No one, it would seem, has given much thought to what would happen if the more narrow and partisan interests of the ruling party Swapo start impinging upon the authority of the Constitution - strange, especially, when one bears in mind the narrow, legalistic arguments advanced by the then Prime Minister Hage Geingob in arguing for a third term for former President Sam Nujoma in the National Assembly in 1999.
Clearly, here was one instance where the AG should have advised against such a move.
But as part of Swapo's post-Independence policy to move the party's political functions into State structures, this position appears to have been politically contaminated right from the start.
The ruling party has also blurred this line with the practice of appointing the Swapo Secretary General as a Minister without Portfolio.
Whether this was to implement ruling party policy while according ministerial status to this position, or simply ensure closer ideological adherence to the party line, is not clear.
But by adding these portfolios (Minister of Justice and Swapo Secretary General) to that of AG, a critical component of the constitutional checks and balances appears to have disappeared into a confusing cloud of conflict of political interests.
Strictly speaking, the AG should have only one official position, as spelled out in the AG's duties in Article 87 (c): [The AG is obliged] "to take all action necessary for the protection and upholding of the Constitution."
So far, no action to protect the Constitution has been taken by Ms Iivula-Ithana as she appears to not have found it necessary - yet.
But the telling moment will come when political decisions will have to made by her with regards to the legal administration of elections, at which point she will be faced by the moral choice of acting in own political interests, or in national interest as defined by the Constitution.
The current election mess at Omuthiya is a good example of how own political interests could easily influence the administration of justice, and poses troublesome questions in respect of same with regards to the far more critical national elections to be held next year.
As a democracy based on the rule of law, the first point must be that free and fair elections must be held regularly to allow citizens to elect representatives they feel would best represent the people's interests.
The same rights extend to the people of Omuthiya, who have to decide who will best look after their collective interests.
The right to freely and fairly elect their representatives, without being subjected to fear or discrimination, is an entrenched right in Chapter III of the Constitution.
These rights are also echoed in the ECN's own Code of Conduct, as well as in the Electoral Act (Act 24 of 1992), as amended, in Part IV in dealing with Offences and Penalties.
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