Independence of Judiciary at Issue

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By Surihe Gaomas WINDHOEK The National Society of Human Rights (NSHR) questions surrounding the legality of President Hifi-kepunye Pohamba’s appointment of Supreme Court Justice Acting Judge Simpson Mta-mbanengwe as chairperson of the Public Office Bearers Remuneration and Benefits Commission is currently under consideration by the Judicial Service Commission (JSC). Last week Tuesday, the NSHR issued a press release requesting the JSC to “urgently investigate the constitutional, legal, moral and ethical implications of the recent appointment of Justice Mtamba-nengwe to the Public Office Bearers Remuneration and Benefits Commission for the independence, impartiality, effectiveness and integrity of the Judiciary.” After Pohamba announced the appointment of Acting Judge Mtambanengwe on April 10, the NSHR again issued a similar press statement the following day stating that such an appointment raises ” … serious ethical and moral questions relating to the conflict of interest and judicial independence.” There has been concern in various quarters over the gradual deterioration in the administration of justice in the country during the 16 years of independence. The Public Office Bearers Remuneration and Benefits Commission, which Acting Judge Mtambanengwe now chairs, is a commission that advises President Pohamba on the salaries of public servants. In a brief interview with New Era recently, the NSHR’s spokesperson Dorkas Phil-lemon questions the morality and legality of the appointment as well as the separation of powers between the Judiciary and the Executive according to the Constitution. “There must be clear separation of powers between the Judiciary and the Executive otherwise there’ll be a conflict of interest. How to be fair as a judge when serving in the executive branch,” asked Phillemon. The human rights group also alleged that there is a “deep-rooted perception that the judicial authorities are subordinates of the executive establishment” because of the appointment system of permanent acting judges – some of whom are expatriates from other countries with questionable judicial systems or corrupt and impoverished economies, as well as the allegedly controversial appointment of the current Prosecutor General and the timing of the appointment of the Judge President amongst others. In response, the Registrar of the Supreme Court, EC Kastoor, said that concerns raised about the legality of Acting Judge Simpson Mtamba-nengwe were being considered by the Judicial Service Commission. This concern was echoed by Chief Justice Dr Peter Shivute earlier on receiving a similar letter from the Executive Director of the NSHR, Phil ya Nangoloh. On this matter, the Chief Justice intended to table the NSHR’s concerns at the next meeting of the Judicial Service Commission. The highest judicial body is the Supreme Court, whose judges are appointed by the President on the recommendations of the JSC. “The Commission will consider, deliberate and resolve the matter with due regard to the facts and all applicable laws (including those referred to by the NSHR). Until such time, it will be inappropriate to comment thereon,” reads the media release issued by the Registrar of the Supreme Court last week Thursday. The JSC, however, finds it unfortunate that even though knowing that the matter is under consideration, allegations are made that there is a “deep-rooted perception that the judicial authorities are subordinate to the executive establishment.” “It is equally regrettable that the NSHR also availed itself of the opportunity to publicly launch other attacks on acting judges – not questioning their obvious capabilities and competencies, but judging them by the alleged conditions in countries of their origin, as well as the Prosecutor General, the Judicial Service Commission and the Magistrates Commission,” the statement adds.