allAfrica.com: Namibia: In Defence of Iivula-Ithana a Response to a 5-Post Criticism (Page 1 of 2)

ON Friday, April 6 2008, an opinion piece titled 'A Conflictual Situation - A Scrutiny of the Several Posts of Pendukeni Iivula-Ithana' was published in your paper, which regrettably carries a number of sentiments in need of correction, which I seek through this response to set right.

Before I delve into the merits (or rather, demerits) of the opinion piece, I must record, on behalf of the Ministry of Justice, and in particular the Attorney General's Chambers, our humble appreciation to those that have of late taken a keen interest in the functions of our constitutional office, whether it be in the print media or radio.

This interest offers us an opportunity to share with the public some understanding as to the correctness of some of the sentiments occupying the fertile minds of those that seek to offer their view to others, no matter their embedded objectives.

First and foremost, it is important to state that there is no constitutional conflict in the Attorney General and Minister of Justice portfolios being occupied by one person.

In fact, ideally, the portfolio of Minister of Justice could be subsumed under the constitutional position of Attorney General altogether, however, reality is that such is not the case.

Therefore, where the Minister of Justice requires counsel of the Attorney General, the legal advisers in the competing departments (e.g.

International Cooperation in respect of an extradition vis-à-vis AG Chambers) would prepare their professional positions and present such to the Minister and Attorney General, who will then execute her functions.

It is also not the first time in the history of our democracy that the same person occupies the two positions.

That there is 'legal bankruptcy' (whatever this means), supposedly because the Minister of Justice is also the Attorney General, and the Secretary General of the Swapo Party, and that 'never before in Namibia's history has so much legal power been concentrated in the hands of one person' as Mr Grobler writes, is but an exhibition of ignorance and flippancy in the mind of the esteemed author of the opinion piece.

For what form of bankruptcy is alleged exactly? What legal power? Or is it the fabricated bully factor upon the Chief Justice and the other members of the Judicial Service Commission as if anything other than the role of Attorney General qualifies participation in the deliberations? The ignorance and flippancy is pronounced nowhere else more in the opinion piece than in the following text: "As AG, she (Mrs Iivula-Ithana) 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, she serves on the Judicial Service Commission (Article 85) which appoints Judges in Namibia " Clearly, it was the attempt of the author at grappling with the separation of powers doctrine that saw him ostensibly create four pillars of government as opposed to the mundanely time-tested Count Montesquieu and John Locke postulations of state authority being divided into legislative, administrative/executive or judicial functions.

Even glaring is the failure on the part of the esteemed author to read the Namibian Constitution (which he cites) and which finds the esteemed author claiming the Judicial Service Commission to have powers of appointing judges! Or even worse, the easy to claim yet hard to prove allegation that the Minister of Justice and Attorney General exerts indirect influence over the administration of justice because she is finally responsible for the Office of the Prosecutor General.

Yet it was the Supreme Court some years ago that urged consultation between the two Offices, and it was only interpreting text of the Constitution anyway.

The truth of the matter is, we will have to wait for President Grobler (if ever) to take office for us to see how practical it is to have a non-political occupant of the Office of Attorney General, who cannot be impeached by Parliament for his accountability towards the legal direction he takes towards the President and Government, which he/she may have to defend in Parliament.

Or perhaps he will opt to appoint a non-voting backbencher, but then, will this person be free of the political conflict of interest to advice his appointing authority who vests with executive authority and will this person do so without fear or favour? It is our understanding that it is from Parliamentarians that the President can appoint his Cabinet (and we can debate whether or not the post of Attorney General is a Cabinet post), and if such is the case, we ought to consider the argument that when the Ministers sit in Parliament, they are vested with legislative powers, and not as an Executive per se, unless when they account for such.

Can we say that in our political system (a party-political system), it is conceivable at all to argue that the President is compromised because the party he leads challenges an election result? Earlier, I made remark of the embedded objectives of some commentators, apparently the author of the opinion piece in question as well.

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