SackY Shanghala
25 April 2008
Windhoek — 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.
These objectives come to the fore at the very end of the opinion piece where he calls upon the AG to resign.
Some have even used Swapo Party Congress resolutions to call for the AG to resign (even when they are not Swapo members, whom one would think have an interest in the resolution being carried out).
Before that embedded objective became apparent, the esteemed author demanded clarification if the AG is being double paid by Swapo and by the GRN.
He also made some smear of settled cases; a similar blanket statement on a 'legal logjam', and yes, before we actually forget to smear even further, questions whether or not the Minister of Justice and Attorney General had anything to do with the suspension of the ECN Director, Mr Philemon Kanime.
R.e.
the payment, I can hardly think of it to make any difference either way, for even if she was the patron of the Endangered Animal Committee and at the same time the Minister of Justice and Attorney General, we will not cease to hold the view that she should be entitled to her official vehicle, driver and bodyguard at her hobby function, because she does not cease to be the Minister of Justice and Attorney General and on top of that, she pays tax on her ministerial cars.
If the Endangered Animal Committee wants to give her an allowance or even full salary for that matter, it is for her and the Receiver of Revenue to deal with.
On the settlement of cases, I think that the esteemed author could have been more specific to make mention of the facts surrounding every settled case, and perhaps pause to distinguish between the distinction between the Attorney General and the Government Attorney.
Of course, no mention of the Office of the Attorney General is complete without the mention of how slow they are! And at times these sentiments are made by clients in need of assistance any more than the sly administrator sitting in a ministry with the knowledge anything remotely related to law should be expeditiously forwarded to the Attorney General for 'advice' before it may contaminate one's opportunity to continue reading the daily newspapers.
Where there are delays, it is because either the hands on deck are busy or just outnumbered by the inflow of legal advice requests, until we get to a point in time where every office/ministry/agency possesses a satisfactory level of understanding of the basic tenets of administrative law and process.
Regarding the suspension of the ECN Director Kanime, I have personally spent countless hours, along with colleagues, at the aid of the gentleman earlier in his electoral career.
We were not in a position to even remotely mero motu approach the ECN once it fielded accusations of some sorts during the coming to light of the application of some parties.
That one can determine whether the ECN suspended Mr Kanime on the basis of Mrs Iivula-Ithana's demands, the question should be asked: which demands, submitted to whom?
Sacky Shanghala is advisor to the Attorney General, Pendukeni Iivula-Ithana, MP.
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