Kawana's push for law reform
The new attorney general has a number of priorities on the agenda for improving Namibians' access to justice.
08 March 2018 | Justice
Highlighted by several legal experts throughout the first months of 2018, newly appointed attorney-general Albert Kawana added his voice to the matter at a staff meeting held last month.
“I am aware that currently there is a public outcry regarding the prohibitive legal costs charged by the private legal sector. This has resulted in very few of our people accessing the justice system,” Kawana said at the inaugural staff meeting on 22 February.
As justice minister, Kawana had already pushed for improving access to justice, through the launch of a number of projects aimed at opening the doors for ordinary Namibians to access legal counsel at affordable rates.
One of these projects is the implementation at further strengthening the community courts, Kawana told staff, by amending the existing legislation after the consultation process.
“I can say 99% consultations have been done.”
He added that “universal justice can only be achieved by adopting a number of measures,” one of which is to craft legislation on small claims courts. The matter of small claims court has gained momentum in recent months.
Chief Justice Peter Shivute, at the opening of the 2018 legal year in February, said that draft legislation on small-claims courts had been forwarded to the justice ministry, which was working on readying the draft law for tabling to the Executive.
Civil society and others have long urged the justice authorities to implement small-claims courts to broaden access to “simple justice,” as described by Ombudsman John Walters last year. Findings contained in a report by the office of the ombudsman last year noted that “the current legal framework does not provide … equal access to our courts.”
The report further stated that current the legal system is “adversarial, expensive and potentially intimidating”, acting as “a barrier to those seeking justice”.
A 2012 Legal Assistance Centre publication on improving access to justice in Namibia pointed out that work towards the establishment of small-claims courts had begun in 1997, but stalled since then.
Change for justice
Kawana pointed out that a draft bill had been completed, echoing Shivute's statement earlier in February, and said that the AG's office hoped to approach the cabinet for approval “before the law is introduced in parliament.”
Another project under way is to amend the Legal Practitioner's Act of 1995 for the sake of introducing pro bono services by private legal professionals. Kawana said the Law Society had agreed to his request for pro bono legislation and also agreed to draft the amendment, which Kawana said had been done. The Legal Assistance Centre last year explained that the term pro bono means “for the public good.” It refers to instances where legal practitioners volunteer to provide free professional services for good causes or for people who cannot afford to pay for such a service.
The LAC noted that there was currently no pro bono tradition in Namibia, although some individual lawyers do offer these services.
However, in many other parts of the world, pro bono work forms part of most lawyers work.
LAC director Toni Hancox told Namibian Sun recently that the “Law Society of Namibia is currently busy with a Change Project which is investigating the issue of pro bono work as well as how this could be incorporated into practice.”
One example is for legal professionals to have a certain number of continuous professional development (CPD) points per year and that pro bono work could be used to defray such points.
“But this is all just being discussed at the moment. The Law Society does have Free Legal Advice days in conjunction with the ombudsman and the lawyers that assist are doing pro bono work voluntarily,” she added.
A woman's right
Another priority noted by Kawana in February is amending the Combating of Domestic Violence Act to involve more role players in combating domestic violence “with a view to simplify the granting of protection orders, among others.”
In regard to the Maintenance Act, Kawana underlined that numerous amendments had been proposed.
One includes the introduction of offences for falsifying paternity results, another provides for courts and single parents to recover arrear maintenance payments.
Another amendment on the line is the payment of pregnancy expenses, in addition to support of parents by their children.
The fact that the law currently only allows divorces to take place through the High Court is also under review, Kawana said.
“This has enormous financial implications, which force some couples to stay together even if the marriage has irretrievably broken down.”
He cautioned that this has on occasion contributed to domestic violence incidents.
In line with this, regional courts will soon be empowered to preside over divorce cases, which will lessen the financial burden compared to the current system.