Prosecutor-General remarks on High Court Year Opening

Remarks by Adv. O.M Imalwa,
the Prosecutor-General of Namibia
on the occasion of the launching
of the High Court Legal Year 2010

18 January 2010

My Lord Justice Petrus Damaseb, Judge President of the High
Court of Namibia;
My Lords and ladles, judges of the High Court of Namibia;
Honourable Utoni Nujoma MP, Deputy Minister of Justice;
The Honourable Adv. John Walters, Ombudsman of Namibia;
Esteemed Adv. Harald Geier, President of the Law Society of
Namibia; Esteemed Mr. Lucius Murorua, President of the
Namibia Law Association;
Esteemed Adv. Raymond Heathcote, President of the Society of
Advocates;
Esteemed legal practitioners present;
Esteemed state advocates;
Esteemed Registrar of the High and Supreme Court and your
staff; All media practitioners present,
Ladles and Gentlemen:

My Lord the Judge President, it is indeed an honour and privilege to extend to you and to this whole august gathering, wishes of success and excellence for the New Year that we have just entered.

May God be with us all and may He guide and lead us to discover and ... our calling to serve the people of this country without fear, favour or prejudice. May we continue to make a difference where we are placed, with whom we are placed and with whatever resources that are available to us.

I further wish to thank you for providing me with the opportunity once again to make a few remarks at the commencement of the 2010 High Court legal year. It is now the time for us to prepare ourselves for the year ahead and to remind ourselves of what our vision and mission is and of that we wish to accomplish. As the well known author John Maxwell wrote: "Part of the preparation for the battles of life is not only to acquire the right equipment to wear on the body but also to make proper preparations of the mind!"

The Office of the Prosecutor-General experienced a number of challenges in 2009. We had a total number of 24 resignations, despite of which we continued to serve all courts in Namibia. The opening of the High Court in Oshakati was a milestone in the legal history of this country. However, with a severe shortage of staff, this office struggled and eventually managed to serve both High Courts with an only existing staff complement of about 10 advocates. The Lower Courts were also affected severely by the shortage of prosecutors resulting in the slow .process of finalizing criminal cases.

My Lord the Judge President, this is just a glimpse of the picture of the Office of the Prosecutor-General for 2009. I bring it to the attention of this gathering to show that although we went through a bad patch, we remained focused and dedicated to our mandate, to effectively and efficiently prosecute crime.

Other challenges faced by the Office during the period under review include the enactment of inter alia, the Prevention of Organised Crime Act, the Financial Intelligence Act and the additional responsibilities these pieces of legislation added on both the judiciary and the prosecution service without the corresponding increase in personnel at the Office. We further recognize the need for more specialized training of our prosecutors in all our courts and we acknowledge the mistakes made when regard is had to the Appeal and Review Matters of this Court. Having realized this, we will continue with our in-service training programmes, external training programmes and in general to build the capacity of prosecutors and to sharpen their skills in order to secure a fair trial for the accused.

My Lord the Judge President, having scrutinized and addressed the challenges this office endured and the areas that need attention, I now turn to the holistic picture, which I think is necessary to review, in so far as the Criminal Justice System. is concerned.

The year 2009, brought with it, the ever increasing delays in the finalization of criminal trials. Old cases, dating back as far as five years ago, remained on the court roll and were being postponed to
the middle of 2010. The situation worsened and before the middle of 2009, cases were postponed to 2011. The main concern being that accused persons had to remain in custody for much longer and
the sword of a criminal matter hanging over them for an unspecified period, as indicators show that there is no guarantee that their cases will be finalized on the next appearance dates.

It is no secret that the Namibian Public is gravely concerned with the current situation of our courts. People demand that the constitutional promise of a fair trial within a reasonable time be operative and be a reality. They expect from us to remain faithful to this obligation and I am afraid to say we are losing their trust and respect.

How can we then begin to give this situation a facelift and to start improve on this situation? Indeed more judges in both the High Court and the Supreme Court must be appointed to deal with the ever-increasing case load. More prosecutors need to be appointed and the current structure of the Office of the Prosecutor-General needs to be reconsidered as a matter of urgency. Defence legal practitioners and state advocates should be prepared to make themselves available as soon as the hearing date is set. Some of these challenges, especially the issue of the lack of personnel be it

judges or prosecutors, need the urgent involvement of Government in particular the Ministry of Justice that is entrusted by the Government of the Republic to oversee the administration of justice in the country. No person expects courts to do well in dealing with cases if they are being faced with personnel and financial problems. There is an urgent need for the Ministry to address these problems before some of our courts come to a standstill.

Another area that might be considered for improvement is the time that it takes for the legal aid applications to be considered, approved and the appointment of counsel finalized. I must add that in some instances, the current legal aid machinery is a cause for concern, especially where appointed legal aid counsel withdraws from a matter, and disclosure is not forwarded to the newly instructed counsel. Now the State must rediscover documents and the matter is once again delayed.

I further on this same issue of legal practitioners, wish to request for a sterner approach when applications for postponements are made. The current situation where legal practitioners come to court on the date that a trial should commence and then indicate to the presiding judge or magistrate that he or she now received conflicting instructions from his client and as a result thereof, he or she withdraws from the matter, is of grave concern to us. All the state witnesses have been subpoenaed and are present, some even from abroad, and now as a result of the accused's constitutional right to legal representation, the matter must be postponed. I appeal to all stakeholders involved, that this practice should cease and that we take a proactive approach in order to ensure that trials take off on the date of set down.

Previously we had also addressed the practice of some legal practitioners to merely after full disclosure by the state, advance a plea explanation of "the State is put to prove each and every allegation contained in the charge sheet." We all know that this is not the true reflection and it is proved by the subsequent evidence which is led by the State which often remains unchallenged and undisputed. We once again plead that presiding officers invoke the provisions of Section 115 and that legal practitioners contribute to the speedy finalization of criminal trials by indicating the real issues in dispute and not leaving the state in a position to prove undisputed issues.

I wish for a moment, to remind ourselves of our ethical role as an officer of the court. To be a fit and proper person at all times, include proper preparation of not only the facts, but also the law. To administer justice calls for a high premium of trustworthiness, of faithfulness and of honesty. We all took oath to serve the people of this nation to the best of our abilities. Yet, when we look in the window, we see our shadows of ill-will, non-commitment and a wanton disregard for the Rule of Law. I sometimes shudder when I read the judgments of this Honourable Court. How officers of the court ill-behave and have no regard for the principles of the Criminal Law, the Law of Evidence and how facts are concealed in order to maneuver an escape from liability. Is this really what we were taught? Is this justice? Is it true what is said by the people of this country, that we are not concerned with a just outcome, but that we are just continuing without taking into account what effects our conduct has on the lives of others? Is it not high time that we should be held accountable for our actions and that we accept responsibility for our inequities?

My offer still stands to invite anyone to report any unbecoming behavior of any prosecutor to my office. Unacceptable conduct will and shall not be tolerated and all of my prosecutors are taken to task to deliver to this nation a service which reflects integrity and accountability. I further wish to assure you, Honourable Judge President that you and all stakeholders in the administration of
justice can count on this office's continued commitment and dedication to make 2010 a year of resounding success and a year marked with a difference.

I extend a hand of mutual understanding and co-operation in order to get solutions to some of the challenges I have highlighted and even to bring forward some of the cases that have been postponed to year 2011 and to ensure that they are dealt with this year. Let all the officers of this honourable court commit ourselves to this call to make year 2010 a ilifferent year in terms of service delivery.

Lastly, I wish all of you a fruitful year with success In all your endeavors.

I thank you.