Recusal has become a political football in a number of African jurisdictions during the past months, but Namibia has produced a completely new scenario: magistrates who refuse to continue a case because of a workplace grievance, and recuse themselves in protest.
The two magistrates at the centre of the recusal row were concerned about the qualifications required by newly-introduced regulations for them to be promoted to the Regional Court. Both had been asked to act in the Regional Court and were involved in ongoing trials there. But then they discovered that they were not eligible for permanent appointment as regional magistrates because they did not have the academic qualifications stipulated by new regulations. These say that an LLB or B Proc would be required, although several other qualifications such as a Masters degree in law from three universities in Cuba would also be acceptable. As the Supreme Court would later put it, the recognised degrees 'regrettably exclude the qualification B Iuris and any diploma in law'.
Uaatijo Uanivi, one of the two magistrates acting in the Windhoek district Regional Court who recused himself from the trial in which he was presiding, said he had a certificate in law and a Masters in Law in criminal justice. He had been on the Bench for 31 years and had been assigned to the Regional Court on several occasions. But he had recently been told that he was no longer suitable or eligible to sit in the Regional Court, he said. That put him in a difficult position. He could not comfortably continue with the case and had no other option but to recuse himself from the matter he was hearing.
The other magistrate, Johannes Shuuveni, also said he did not feel comfortable with continuing his cases because of the way the Magistrates Commission was treating him. 'One day capable of handling Regional Court, the other time you are not suitable.' He and his colleagues felt it best to recuse themselves so that the cases could continue before 'properly constituted' Regional Court magistrates.
At the time they recused themselves, the magistrates gave their reasons from the Bench, without alerting counsel beforehand, and then quit their respective cases. However, their recusals were referred to the High Court for review. This was considered in chambers without the involvement of the prosecuting authorities, and only came to the attention of the Prosecutor-General about a month later.
The two High Court judges upheld the recusals and ordered that the cases should start from the beginning before a 'permanent' Regional Court magistrate. The judges said the situation under which temporary magistrates were appointed to hear matters though they could not be considered for a permanent position on the court, needed to be urgently revisited. If the magistrates commission was satisfied with their work, why could they not be considered for a permanent position, the judges asked. Otherwise, why assign them to do work for which they were not properly qualified?
The High Court judges gave leave to appeal their decision, and the question was argued before the Supreme Court earlier this month. With commendable speed - just over a week - the Supreme Court delivered a decision setting aside the recusals, ordering the two to go back to hearing their part-heard cases as soon as possible.
Recusal was permitted on grounds related to perception of bias, said the Supreme Court. The reason the magistrates recused themselves had nothing to do with bias. If presiding officers recused themselves for 'ill-informed apprehensions' it would create anarchy 'where judicial officers would be at liberty to make choices of which cases to preside over and which not'.
Impartiality and competency were not in question in the case of the two magistrates. In fact, the parties specifically requested that they return to finalise the cases. The Supreme Court said the behaviour of the magistrates in recusing themselves was wrong, should be condemned and 'is sheer insubordination of great magnitude'. They were lucky to escape without misconduct charges. Their actions had caused immense delays in the cases they were hearing.
On the other hand, the court said it had sympathy with the magistrates.
'I understand their frustrations' at the commission's view that they were good enough to preside temporarily in the Regional Court but not good enough for a permanent position merely because of the recognition of only certain qualifications. However, these 'personal grievances' could not be used to recuse themselves.
Having made their point and having won the sympathy of both the High Court and the Supreme Court, the two magistrates will no doubt soon be back at work. However, the real question must now be whether the authorities will re-think the qualification question. Clearly, the existing situation is unfair, untenable and illogical. There must be room for a compromise - a rethink on the qualifications accepted for promotion - so that valuable, experienced magistrates with further qualifications not on the new list of accepted degrees, are not lost to the Bench, or left frustrated and unable to advance.