Namibia: Attacks on judges must be condemned

Namibia’s National Society for Human Rights (NSHR) is gravely appalled by what appears to be an escalating spate of misguided and, sometimes, punitive attacks on the independence of judges in the country. These attacks have assumed absurd and dangerous proportions recently following the ruling by the Supreme Court of Namibia to stay the banning of Africa Personnel Services (APS), a labor hire outfit in the country.

On December 14 2009, in the matter of Africa Personnel Services (Pty) Ltd vs the Government of the Republic of Namibia[1], the Court ruled (see decision attached), inter alia, that Section 128 of the Labor Act 2007 (Act 11 of 2007), under which the banning of the controversial APS was sought, was contrary to the provisions of Article 21(1) (j) of the Namibian Constitution, the Supreme Law of Namibia, and ipso facto unconstitutional and of no force and effect.

The ruling Swapo Party-affiliated and highly politicized National Union of Namibian Workers (NUNW) had recently described Supreme Court ruling inter alia as “reactionary”, “imperialistic” and “unpatriotic”. NUNW activists vowed that immediate measures would be put in place by the Swapo Party-controlled Parliament with the view to override, contradict or nullify the Supreme Court ruling in casu (i.e. in this case).

In a report entitled “Labour ruling ‘insensitive’ towards poor – LaRRI”[2], the State-owned and Executive Branch-controlled New Era newspaper reported that Herbert Jauch, a well known labor activist and the Director of Research and Education at the Labour Resource Institute (LaRRI), also joined the NUNW bandwagon and criticized the Supreme Court decision on APS. New Era quoted Jauch as inter alia imputing that the Supreme Court has made a perfunctory and politically biased judgment when he reportedly said:

“The Supreme Court judgment is highly insensitive towards the plight of the labour hire workers … [there was a"> fertile ground for suspicion”.

According to media reports last week, several other non-NUNW affiliated and independent labor unions have also attacked the Supreme Court ruling declaring the APS banning unconstitutional.

In terms of Article 81 of the Namibian Constitution, a Supreme Court decision is preemptory and binding upon all and sundry unless it is reversed by the Supreme Court itself and or unless it is contradicted by an Act of Parliament lawfully (and, NSHR adds, constitutionally) enacted.

“Of course, as we have done in the past, we reiterate our unreserved condemnation of the offending activities of APS. However, as an advocacy organization, one of whose principal objectives is to promote democracy, the rule of law and the independence of the judiciary in this country, we are totally appalled by the aforementioned misguided and often politically motivated attacks on the judiciary. At least some of these attacks run clearly contrary to the provisions of Article 78 (3) of the Constitution, in that such attacks deliberately and actively seek to tarnish the image, and, hence, to erode the sine qua non independence, dignity and effectiveness of this country’s judiciary”, said NSHR executive director Phil ya Nangoloh.

NSHR reminds all and sundry about the constitutionally entrenched independence of the judiciary as contemplated under paragraph 3 of the Preamble to the Namibian Constitution as well as in terms of Articles 12(1)(a) and 25(1)(a), read in conjunction with Article 78, of the said Constitution. Consideration must also be had about the Constitutional doctrine of the separation of powers[3] of Government as provided for under Paragraph 3 of the Preamble to the Constitution and under Articles 1(3), 5, 32(2) as well as under Chapters 6 and Article 44 as well as Chapters 9 and 10 of the said Constitution.

“Hence, having been threatened ourselves with banning by the ruling Swapo Party through the August 20 2007 Hakaye Motion[4] in the National Council, we, view in a very serious light, the growing tendency in the country to ban and or eliminate those with whom one disagrees. Labor unions and other pro-ban activists should have known better that it was Parliament, of which the majority of lawmakers are Swapo Party members who have been bulldozing un-debated bills into laws, which has failed to pass effective laws and not the Judiciary”, added ya Nangoloh.

Rather than banning APS, Parliament should have enacted an appropriate law and the Swapo Party-controlled Executive Branch should have put in place effective administrative measures to ensure that APS complied with such a law and measures. Once effective legislative and administrative measures are in place, the Executive Branch of Government must ensure that labor hire workers are accorded equal treatment as any other workers and this includes receiving all and any other benefits like any other workers and employees in the country-which include, among others, social security, paid leave days and severance pay.

“The judiciary, including the Supreme Court, is there to interpret and enforce the Constitution and the subordinate laws of the country. It is absurd for critics to even suggest that Parliament must enact a law reversing or contradicting the Supreme Court judgment in casu, as the said judgment is rooted in the non-derogable and permanently entrenched Bill of Rights (i.e. Chapter 3 of the Constitution)”, concluded ya Nangoloh.

NSHR’s position is: the labor unions and other critics should rather vent their misguided anger, if any, not by attacking the courts and or the judges, but by urging the lawmakers to adopt effective legislative measures and the Executive Branch to ensure that appropriate administrative steps are in place to give force and effect to the proposed legislative measures.

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* In case of additional comment, please contact Steven Mvula or Phil ya Nangoloh at Tel: +264 61 253 447 or +264 61 236 183) or Mobile: +264 811 406 888 (office hours). Alternatively, contact them via email or website
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