Prolonged litigation: when justice becomes the victim

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Namibia is perceived to have a world class judiciary system, but there are unprecedented aspects of it that threatens that status. Just this week, New Era reported about a Congolese national, accused of robbery, who has been in the holding cells awaiting trial for over nine years.

That case is one of many others that have overstayed their welcome in the courts – a painful reality to not only those accused of criminal conduct but also the reputation of Namibia as a democratic state that values the protection of basic rights.

Our judiciary must not hide behind the fact that there is no single international rule on how long cases should take before they are heard. It has an obligation to contribute towards healing society by swiftly dealing with matters before it and within a humane and reasonable timeframe.

True, the law is not an art of mathematical precision, as per the famous words of British barrister Lord Denning, but justice – even natural justice – must be the buzzword in the corridors of all our courts.

No justification exists in this world for a trial in a robbery case to have not started ten years after the purported commission of the crime. What if the person is eventually not found guilty? What if he is convicted and sentenced to a jail term shorter than the time already spent behind bars?

But even beyond rhetoric and ‘what ifs’ our judiciary must be seen as competent, not only in the sense of substance, but also in terms of the speed and pace at which it completes its core functions. The courts cannot be deemed as home to justice when, in deed and truth, by lengthy delays they appear to be antagonists of that very principle.

We’d be the first to admit that justice does not necessarily mean rapid and racey decisions from courts. The procedure to initiate investigations in a given case should be carried out in respect of a reasonable time of period and judges should have a reason time to read and prepare legal issues of the matter in question.

Some even say the slowness of justice, when it is not exaggerated, is regarded as a tool and one of the objectives for discovering a burden of proof or evidence.

But while that may be true in some instances, it remains our stance that no case should go beyond three years, except when the delay lies with the accused person themselves, as seems to be the case in the murder case of Andre Heckmair, where the accused keep firing their lawyers and seeking psychiatric observations ad infinitum.

The Avid/SSC case, for example, has dragged on for more than a decade without a final ruling being made so far. The risk with that is that key evidence and witnesses in the matter could gradually disappear, which would weaken the case and its conclusion.

And when a court arrives at a verdict that has been affected by dwindling evidence and witnesses who can no longer be traced or cannot remember all details because the incident occurred ten years ago, such verdict cannot be deemed true justice.

The inherent risk of prolonged litigation thus goes beyond the interests of those accused of misdemeanours. It affects victims in such cases too, who might have hoped for true justice to be served, which at times may not happen due to shreds of evidence falling off the case as time goes.

It is argued by many observers that if there is one thing the Namibian judiciary has failed to achieve over the past 27 years of independence, it is substantive reform. The status quo cannot remain, lest we become the laughing stock of the world.

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