Prof. Nico Horn
THE Supreme Court of South West Africa/Namibia was the first court in Southern Africa (possibly Africa) to implement a broad appreciation of human rights as a foundation for its understanding of legal interpretation.
The Transitional Government attached a Bill of Rights to its founding legislation, Proclamation R101. Although Proclamation R101 of 1985 with its Bill of Rights was not a constitution, the court treated it as such and vigorously applied constitutional principles in their judgments.
Several groundbreaking judgments followed. The release of political activist Katofa, allowing South African pastor and leader in the United Democratic Front, Frank Chikane, to visit Namibia, and it also declared the Protection of Fundamental Rights Act 16 of 1988 unconstitutional since it contradicts entrenched rights such as freedom of expression, freedom of assembly. Many of these judgments were, however, overturned by the Supreme Court of Appeal in South Africa.
With independence on 21 March 1990 the shackles of the Appeal Court in Bloemfontein were broken and the High and Supreme Courts of Namibia were established as free superior courts – accountable only to the Namibian Constitution.
The first Chief Justice was Judge Hans Berker, who was succeeded by Judge Ismael Mahomed.
Judge Mahomed was succeeded by Judge Johan Strydom. Our present Chief Justice is Judge Peter Shivute. The first test for the High Court of Namibia was the Donald Acheson case. Acheson was suspected of having killed Anton Lubowski, a popular activist.
When it became clear that the State cannot prosecute him without the presence of his co-conspirators, members of the South African Defence Force’s covert organizations, the later Chief Justice Mahomed threatened to release Acheson on bail if a trial date was not established. The State withdrew the case.
This was a clear indication that the Namibian courts will protect every individual’s right to be presumed innocent, even if he is suspected of having killed a Namibian hero.
Commenting on the Constitution, Judge Mahomed said the following: “The Constitution is a mirror reflecting the national soul, the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the constitution must therefore preside over and permeate the processes of judicial interpretation and judicial discretion.”
The Acheson case was the first foundation of a rule of law country. In yet another groundbreaking case the Supreme Court confirmed the independence of the Office of the Prosecutor-General. In a justice state, the Court said, a political appointee can never have a final say on prosecutions. And in the Kauesa case the Supreme Court radically defended and protected the right to freedom of speech.
While the Constitution prohibits the death penalty, the Supreme Court ruled that life imprisonment is not unconstitutional as long as an inmate has hope of parole or other forms of release. Some citizens may feel that a high number of criminals get away with crime, because the protection awarded to them is out of place. Most of the “rights cases” are decided in criminal courts.
However, the protection against illegal arrests, the right to legal representation, the right not to incriminate oneself and the right to be presumed innocent is a protective net for all citizens against the abuse of power. Over the last twenty years both superior courts proved to be independent, fearless and trustworthy.
While the legal fraternity, like lawyers all over the world, will always disagree with some judgments of our courts, the integrity of the judges and their commitment to justice, fairness and the rule of law, are never doubted. The High and Supreme Courts of Namibia are respected and often quoted in judgments of judges in other jurisdiction in SADC and all over the world.
