The decision by the Judicial Service Commission (JSC) to change the requirements for the appointment of the next Prosecutor General (PG) has raised eye brows amid concerns the move will disenfranchise many lawyers who might be qualified and interested in the post.
This comes after a vacancy was advertised for a new Prosecutor General, with clear indications to replace incumbent Martha Imalwa.
One of the new requirements for the Prosecutor General post is a minimum of 15 years post admission experience. The current Prosecutor General, who has been in charge for 16 years with her contract extended by the JSC in 2013, did not have any post admission experience.
According to the section 9(f) of the Supreme Court Act, a person being considered for the post is only required to have been a legal practitioner and to have served in a legal capacity in full time public service for a cumulative period of not less than ten years.
In comparison, Section 9 of the NPA Act of South Africa does not have any requirement of any number of years for the National Director of Public Prosecutions.
The 15 years post admission requirement is believed by practitioners in the legal field to be aimed at automatically exclude most black lawyers who want to apply for the position.
“The JSC has in the recent past taken a principled decision to review this practice and has decided to open up the process and introduce greater transparency in the appointment of the Prosecutor-General. It is in this context that the JSC, through the placement of an advertisement in media outlets, invited suitably qualified and experienced persons to submit their applications for consideration for possible appointment to the advertised position,” spokesperson in the Office of the Judiciary, Ockert Jansen told Windhoek Observer.
Jansen further stated that things were done differently in the past regarding the appointment of the Prosecutor-General “Due to the prevailing circumstances at the time.”
“At that time, nominations were primarily received from the Executive Branch for the JSC’s consideration of the nominee’s suitability with a view to recommending his or her possible appointment.”
“The amendment effected to the Legal Practitioners’ Act, Act 15 of 1995 in 2002, regarding admission of lawyers employed in the public service as legal All correspondence must be addressed to the Executive Director practitioners of the High Court of Namibia was litigated in court and the court has pronounced itself on the matter.”
According to the Office of the Judiciary the amendment was found to be valid and is still part of the law of general application.
The citizenship requirements of the post have also not yet been defined, leading to questions of whether a non-Namibian will be considered for the role.
“As to the nationality and post-admission requirements for the position of the Prosecutor-General, these aspects are receiving the urgent consideration of the JSC and the decision thereon will be communicated to the public in due course,” said Jansen.
Imalwa has been Prosecutor General since 2004 after she took over from the late Hans Heyman, who was Prosecutor General from 1990 until 2002. She is the country’s second prosecutor general.