We embrace the timeless words spoken by Dr. Martin Luther King, Jr., who quoted a 19th-century British Prime Minister, “…justice too long delayed is justice denied.” Currently, the Namibian judiciary has a limitless time clock that denies justice. The amount of time between arrest and trial and judgment is appalling.
Is the Namibian judiciary held back by insufficient investigatory skills such that it takes years to collect credible, usable evidence? Is there such an overload on the court dockets and too few trained staff that being arrested in Namibia is tantamount to an extra-judicial prison sentence? Has the judiciary process in Namibia unwittingly slinked backward to where it was before independence in terms of timely due process and the presumption of innocence?
Let us all stop dancing around the 800-pound gorilla in the Namibian courtroom. Three years to complete the Fishrot trial is too much while the un-convicted remain in prison. If the trial has not concluded in this amount of time, COVID notwithstanding, arguably, the accused in that infamous case were arrested prematurely. Amidst media cheers and public jeers, the accused were hauled to jail before sufficient evidence needed for a reasonable chance of conviction was assembled. The public wanted blood to assuage its outrage at what it believes is the scope of the shameful Fishrot corruption. Law enforcement and the judiciary reacted. Now here we are with supposed dates for a trial set for even more months into 2023.
Looking back at the 16-year ‘Caprivi’ treason trial and acknowledging the armies of citizens who have been arrested and continue to languish in prison cells for years while awaiting trial is disconcerting. Has the Namibian judiciary lost sight of what it means to be just? They have no idea what it means to be locked in a smelly, crowded cell full of angry and hopeless people though one has not been convicted of a crime. The innocence or guilt of the accused is an issue not covered in this editorial, nor shall we dwell on the shockingly exorbitant cost of obtaining the services of defense attorneys in Namibia; the focus of our concern is the overly lengthy process of getting swifter justice in criminal cases when the accused already have been arrested, and bail denied.
Freedom of movement and personal choice is the most valuable for each human being. The right to decide when to wake up or go to sleep, when to eat, where to take a walk, and who to see each day is underappreciated and not noticed until such freedom is lost. That is why incarceration is such a devastating punishment.
Society—the people of Namibia—sets the rules, and the judiciary adjudicates when those rules are broken. In Namibia, people have not been judged guilty, yet most of the line items on the list of their individual freedoms have been deleted. Society recognizes that there are those credibly accused in some cases that are a threat to everyone around them, and their incarceration becomes a high consideration for the public’s safety. Sadly, the people have been vaccinated against recognizing the rights of the arrested, so those suffering in jails are either invisible or seen by the public as ‘getting-what-they-deserve.’ The police and judiciary seem to go along with community sentiment. Anyone arrested must be guilty. Nie meer te sê nie.
Since our judiciary appears to be reactive, loud voices consistently raised against someone are enough to have them arrested, jailed and cause them to lose at least a year of their lives. There was a time in Namibia when being black or from the North was enough to be arrested, searched, banned, tortured, questioned, handcuffed to posts, or chained to trees if a white person decided it should be so. Have we regressed to this horrific point in an independent Namibia? How high must the bar be when the courts decide that an accusation is enough to rob people of their lives and livelihoods?
Realistically, formulating and implementing judicial reform to address this calamity will be like trying to swim through peanut butter. We must never forget that from the newest young person admitted to the Bar up to the Highest Supreme Court Justice, the judicial system is run by lawyers. Any movement to adjust the status quo is taken as an attack on those maintaining it; they will react defensively at the very suggestion that what they are doing is lacking. The judiciary polices itself and sets its code of conduct. They are the interpreters of the written law. The judicial process is their ‘hands-off’ domain; they will cover each other and resist change to maintain their realm.
It is time for the other branches of government to show the jurists and court staff that they are a part of the whole tree. Parliament and the Executive must commit to speedier trials, consult with jurists who have no stake in the Namibian game, and pass innovative laws holding the judiciary accountable for the unreasonable time between arrest, trial, and judgment.
Concurrently, Parliament must allocate more funds for the long-term, training of more culturally diverse judges, legal drafters, magistrates, and court staff, beginning at the secondary school level and extending through the UNAM School of Law, and provide scholarships for outside law schools if necessary. More judges and court workers from comparative countries must be paid consultants in Namibia to speed up our court system until we have enough home-grown talent to replace them. Potential investigators from all backgrounds must be trained relentlessly and continuously learn what it takes to collect legal evidence and build cases.
It is time to join the 21st century, get rid of the ridiculous wigs and robes, and let those in the judiciary look more like those standing before them in court. Why not let all who work in the court system be obliged to volunteer in Namibian jails for two weeks each year?
They should not be allowed to continue their detachment from the results of their judicial inaction. As we approach 33 years of independence, the judiciary must be reminded that justice delayed is as if there is no justice at all.