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.
Will these rights be guaranteed by the ultimate custodian of the Namibian Constitution - the President - and the person designated to "take all action necessary for the protection and upholding of the Constitution"? Let's ignore for the moment that the ECN firstly appointed someone with known political partisanship (Oshikoto Governor Pena ya Ndakolo) to oversee the recruitment of selection of election officials at Omuthiya.
And let us, for the moment, suspend our disbelief in the ECN's protestations that all the election officers, not just Swapo loyalists, were selected on basis of merit and experience.
Let us also assume that when the ECN decided to ignore the opposition party Rally for Democracy and Progress' objection to some 42 names lodged two weeks (February 17) before the elections, they were not acting male fide or in any way prejudicial to the RDP or any of the other parties, or inimical to the need to conduct a free and fair election.
And let us also accept that accusations of "traitors" and "Judas Iscariots", and demands that opposition supporters be denied water and the right participate in State tenders were reported out of context, and that complaints of violent intimidation were exaggerated by the opposition to gain political sympathy.
Fact is, when the ECN's Philemon Kanime suddenly called off the elections on the February 28, one day after Swapo had lodged objections to 12 names of the roll of 1 587 voters, many serious questions were raised as to how the legal process in sorting out the mess would be handled.
This became even more serious as the ECN had at first insisted that there were no serious problems, but then a day later, suspended the entire top management of the ECN - and reached critical proportions if one bears in mind that the day before she publicly demanded that Kanime's head should roll.
Did she as AG advise the ECN's commissioners to suspend Kanime and colleagues, or did they do so of own volition, unaffected by Ms Iivula-Ithana' demands? And how would she advise the ECN of its legal position, in respect of Part IV of the Election Act, especially if the ECN is challenged by any of the opposition parties with respect to the Code of Conduct? Whatever the case was, a line was crossed in the process, and a Pandora's box of legal consequences reared their Hydra-like heads.
Ms Iivula-Ithana, as politician and AG, now suddenly found herself on both sides of the law, and not necessarily on the side of the law itself. This may seem a trivial and petty argument to some, but as unfolding events in Zimbabwe has now so amply illustrated, the ruling party's interests are not necessarily in the national interest.
This is a characteristic they share with every other failed regime in history, and makes for sobering reading. The headlong decline into legal chaos of our once-proud sister nation can be traced directly to the moment when the Mugabe regime sought to legally obliterate the separation of powers in 2002 by trying - but failing - to amend the Zimbabwean Constitution to suit Zanu-PF's political purposes.
The result is clear for all to see: a morally corrupt regime, bereft of any legitimacy, which now seems ready to revert to an oppressive police state in order to hang on to power.
The correct thing - morally and legally - would be therefore for Ms Iivula-Ithana to resign as AG before she puts herself in a position where she would be tempted to betray her Constitutional obligations.
To fail to do so is to cause grievous harm to the most fundamental law of Namibia, by the very person entrusted and instructed to protect it.
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