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The Independence of the Judiciary in Namibia Edited by Nico Horn and Anton Bösl 2008 1 This publication would not have been possible without the generous fi nancial support of the Konrad Adenauer Foundation. Please note that the views expressed herein are not necessarily those of the Konrad Adenauer Foundation. Konrad Adenauer Foundation P.O. Box 1145 Windhoek [email protected] www.kas.de/namibia © Konrad-Adenauer Stiftung and the Authors 2008 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. Cover design: Anton Bösl and John Meinert Printing Content editors: Nico Horn and Anton Bösl Language editor: Sandie Fitchat Publication design: Anton Bösl Layout and printing: John Meinert Printing (Pty) Ltd Publisher Macmillan Education Namibia PO Box 22830 Windhoek Namibia Tel. (+264 61) 225568 ISBN 978-99916-0-807-5 2 Table of contents Contributors 5 Foreword 10 Peter Shivute Introduction 12 Nico Horn and Anton Bösl List of abbreviations 14 SECTION I: The paradigm of an independent judiciary The paradigm of an independent judiciary: Its history, implications and limitations in Africa 17 Joseph B Diescho SECTION II: The independence of the judiciary in pre- independent Namibia The independence of the judiciary in pre-independent Namibia: Legal challenges under the pre-independence Bill of Rights (1985–1990) 45 Nico Horn SECTION III: The structure of the Namibian judicial system The structure of the Namibian judicial system and its relevance for an independent judiciary 69 Sam K Amoo SECTION IV: The independence of the prosecutorial authority The uniqueness of the Namibian Prosecutor-General 99 Lovisa Indongo The independence of the prosecutorial authority of South Africa and Namibia: A comparative study 113 Nico Horn 3 SECTION V: The independence of the Lower Courts of Namibia The Magistrates Act of Namibia and the independence of magistrates 137 Kaijata NG Kangueehi Traditional courts in Namibia – part of the judiciary? Jurisprudential challenges of traditional justice 149 Manfred O Hinz SECTION VI: The independence of the Superior Courts Politics and judicial decision-making in Namibia: Separate or connected realms? 177 Peter VonDoepp The role of the executive in safeguarding the independence of the judiciary in Namibia 207 Oliver C Ruppel Appointing acting judges to the Namibian bench: A useful system or a threat to the independence of the judiciary? 229 Norman Tjombe The right to an independent and impartial tribunal: A comparative study of the Namibian judiciary and international judges 243 Francois-Xavier Bangamwabo SECTION VII: Beyond the Namibian Judiciary The independence of the Ombudsman in Namibia 271 Katharina G Ruppel-Schlichting The independence of the legal profession in Namibia 291 Clive L Kavendjii and Nico Horn Legal education and academic freedom in Namibia 311 Isabella Skeffers 4 Contributors Amoo, Sam K Head of Department and Senior Lecturer Private and Procedural Law Department, Faculty of Law, University of Namibia LLM, University of Toronto BA LLB, University of Zambia BBA, University of Ghana Last/latest publication: Amoo, SK. 2008 [Forthcoming]. “Introduction to law, materials and cases”. Windhoek: Macmillan Education Namibia. [email protected] (+264 61) 246 141 Bangamwabo, Francois-Xavier Lecturer Faculty of Law, University of Namibia LLM, National University of Ireland LLB, University of Zimbabwe Registered Attorney, Zimbabwe Last/latest publication: Bangamwabo, F-X. 2006. The independence and the impartiality of ad hoc international criminal tribunals: The case study of the International Criminal Tribunal of Rwanda. Dublin: University of Ireland. [email protected] (+264 61) 206 3766 Bösl, Anton Resident Representative Konrad Adenauer Foundation PhD in Philosophy, Ludwig Maximilian University, Munich PhD in Theology, Albert Ludwig University, Freiburg Last/latest publication: Horn, N & Bösl, A (eds). 2008. Human rights and the rule of law in Namibia. Windhoek: Macmillan Namibia. [email protected] (+264 61) 225568 5 Diescho, Joseph Brian Honorary Professor of Government and Political Studies, Nelson Mandela Metropolitan University, Port Elizabeth Director and Head of International Relations and Partnerships, University of South Africa (UNISA), Pretoria BA (Law), BA (Hons), MA, DLit et Phil (Fort Hare University) MA, MPhil, PhD (Columbia University) Last/latest publication: A series of articles on Afrikan leadership (+27 12) 337 6005 Hinz, Manfred O Professor, Faculty of Law, University of Namibia UNESCO Chair for Human Rights and Democracy, Human Rights and Documentation Centre, Faculty of Law, UNAM PhD in Law, University of Mainz Habilitation completed with appointment as professor at the University of Bremen Last/latest publication: Hinz, MO & Patemann, HK (eds.). 2006. The shade of new leaves. Governance in traditional authority: A southern African perspective. Münster: Lit Verlag. [email protected] Horn, Nico Dean, Faculty of Law, University of Namibia William Paton Fellow, University of Birmingham Visiting Scholar, International Human Rights Clinic, Public Interest and Clinical Education, Stanford Law School PhD, University of the Western Cape MA, Nelson Mandela Metropolitan University LLM, University of South Africa BTh (Hons), University of South Africa BProc, University of Johannesburg Last/latest publication: Horn, N & Schwikkard, PJ. 2008. Commentary on the new Namibian Criminal Procedure Act, Volumes 1 and 2. Windhoek: Orumbonde Press. Co-drafter, with renowned scholars such as Ron Sider and Glen Stassen, of the recent Confession against nuclear armament: Evangelicals for National Security through International Cooperation. Horn, N & Bösl, A (eds). 2008. Human rights and the rule of law in Namibia. Windhoek: Macmillan Namibia. [email protected] (+264 61) 206 3622 6 Indongo, Lovisa Legal Practitioner MSc, University of Wales LLB, University of Namibia B Juris, University of Namibia Last/latest publication: Contributor to Horn, N & Schwikkard, PJ. (eds). 2008. Commentary on the new Namibian Criminal Procedure Act, Volume 1. Windhoek: Orumbonde Press. lindongo@namfi sa.com.na (+264 61) 290 5000 Kangueehi, Kaijata Head of Department and Lecturer Department of Commercial Law, University of Namibia Member, Magistrate’s Commission Member, Board for Legal Education Legal Practitioner, High Court of Namibia BA, LLB, PG Dip (Tax), University of Cape Town [email protected] / [email protected] (+264 61) 257351 (+264 61) 206 3651 Kavendji, Clive Lecturer, Faculty of Law, University of Namibia Legal Practitioner, High Court of Namibia B Juris and LLB, University of Namibia Last/latest publication: Access to the criminal justice system through legal aid. Unpublished LLB dissertation, University of Namibia. [email protected] (+264 61) 257351 / 206 3737 Ruppel, Oliver C Director, Human Rights and Documentation Centre, Faculty of Law, University of Namibia Senior Lecturer, Faculty of Law, University of Namibia LLD, University of Pressburg LLM, University of Stellenbosch MM, University of Hagen PG Dipl Phil, University of Munich LLB Hons (German State Law Exams) 7 Last/latest publications: Hinz, MO & Ruppel, OC (eds.). 2008. Biodiversity and the ancestors: Challenges to customary and environmental law. Case studies from Namibia. Windhoek: Namibia Scientifi c Society Ruppel, OC. 2007. Interdisziplinäre Schlüsselqualifi kation Mediation. Hamburg: Schriftenreihe Außergerichtliche Konfl iktbeilegung Verlag Dr Kovac. [email protected] or [email protected] (+264 61) 206 3664 Ruppel-Schlichting, Katharina Business Manager and Senior Legal Researcher, Legal Research and Development Trust of Namibia LLD, University of Bratislava LLM, University of Stellenbosch LLB Hons (German State Law Exams) Last/latest publication: Kanganje, A & Ruppel-Schlichting, K. 2008. Manual Do Delegado De Lista/Angola – Election observer manual. For the parliamentary elections 2008. Luanda: Konrad-Adenauer- Stiftung /Instituto de Desenvolvimento e Democracia. [email protected] (+264 61) 305 045 Shivute, Peter Chief Justice of the Supreme Court of Namibia MA LLB, University of Cambridge LLM, University of Warwick Last/latest publication: Shivute, P. 2008. The rule of law in sub-Saharan Africa – An overview. In Horn, N & Bösl, A (eds). Human rights and the rule of law in Namibia. Windhoek: Macmillan Namibia. [email protected] (+264 61) 279901 Skeffers, Isabella Programme Offi cer, Konrad Adenauer Foundation Candidate legal practitioner LLM candidate, University of Namibia LLB, University of Namibia B Juris, University of Namibia Last/latest publication: Amoo, SK & Skeffers, I. 2008. The rule of law in Namibia. In Horn, N & Bösl, A (eds). Human rights and the rule of law in Namibia. Windhoek: Macmillan Namibia. [email protected] (+264 61) 225568 8 Tjombe, Norman Human rights lawyer Director, Legal Assistance Centre B Juris and LLB, University of the Western Cape Member of various NGO boards (e.g. Open Society Foundation of Southern Africa, the Namibia Democracy Support Centre, the Namibia Nature Foundation, the Namibia Development Trust, the Nyae Nyae Development Foundation, Katutura Community Radio) Last/latest publication: Tjombe, N. 2008. Water … A human right?. Windhoek: Legal Assistance Centre. [email protected] (+264 61)
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