Lawyers oppose Damaseb’s ‘secret courts’ plan
A month after the Judiciary blocked access to court papers in 2019 involving the disappearance of N$23 million paid for the failed Kora music awards, the Judge President hatched a plan to make some cases inaccessible to the public and the media.
JEMIMA BEUKES
WINDHOEK
Namibian lawyers have told Judge President Petrus Damaseb that his plan to block the media and the public from gaining access to certain court cases and documents would open floodgates of abuse by unscrupulous politicians and other powerful persons.
Damaseb made the suggestion in December 2019, just a month after the Judiciary came under fire for blocking access to court papers involving the disappearance of N$23 million paid for the failed Kora music awards.
In court papers filed in April 2019, Kora music awards founder Ernest Adjovi fingered President Hage Geingob as having been a catalyst in organisers striking a multi-million dollar with the Namibia Tourism Board, which later collapsed and has become a matter of litigation in the Namibian high courts.
Adjovi claims his close friendship with Geingob directly led to the signing of agreements to bring the awards show to Namibia.
Responding to Namibian Sun through his lawyer Sisa Namandje at the time, Geingob denied Adjovi’s allegations.
It is widely believed that the accusations made against Geingob in the Adjovi affidavits was why the Judiciary kept the matter out of public reach as the court case was declared ‘in camera’ at the time, with neither the media nor members of the public having access to the proceedings.
The Judiciary claimed at the time that it has instituted investigations into why the Kora matter was held in secret, but the outcome of that investigation was never made public.
By law, the head of state appoints the chief justice and the judge president.
A month after it came to light that the Kora case was held in secret, Damaseb wrote to several stakeholders, including the Law Society of Namibia (LSN), seeking input on plans to bar the press and public from accessing certain cases.
Lawyers hit back
The legal fraternity, through LSN, responded that Damaseb’s plans would be a blow to transparency and unconstitutional.
These sentiments are contained in a memorandum submitted to Damaseb on 12 March 2020.
“Members are concerned that this amendment will be open to abuse by politicians and certain high-ranking persons to circumvent transparency in state affairs,” the document read.
Lawyers also feel that Namibia is currently at a juncture where the trust in public servants and government processes is at an “all-time low”.
“Our country is coming to grips with alleged high-level corruption, and that this might well be the tip of the iceberg, we can ill-afford to cast further suspicion on the integrity of our courts,” they said.
The law society also feels that in the absence of legislation for the disclosure of information by government and its agencies to the public and the media, the proposed rules will “frustrate access to information and transparency”.
Unconstitutional
According to the law society, the proposed rules do not appear to satisfy constitutional requirements.
“The extent of the limitation in this case is not ascertainable since there are non-criteria or guidelines - only the unfettered discretion of the identified decision-makers, deciding in private without any safeguards, such as a right of appeal,” the LSN said.
It added: “As the public has the right to observe all High Court proceedings in open court, the public must also have the right to a formal, transparent process whereby the court rules that the public’s right in this regard is curtailed, through the application of one or more of the four exceptions.”
The legal profession’s regulating body questioned how a constitutional right, as entrenched in Article 12, could be abolished through application of an exception without formal public proceedings.
“Without a formal application and ruling by the court to justify one or more of the exceptions being present and applied, followed by an order to proceed in camera, there is no accountability on the part of the Judiciary, no possibility of oversight by the public and, most importantly, no means to appeal any decision to taken in this regard,” the society said.
Considering recommendations
LSN director Rietha Steinmann last week told Namibian Sun that the requested input from its members is up for consideration by its standing committee on civil litigation at its next meeting.
“This committee will thereafter make the necessary recommendations to the council of the LSN. The LSN council will consider all recommendations made and will consult further, if necessary, before submissions are made to the honourable Judge President,” she said.
The Editor’s Forum of Namibia chairperson Frank Steffen said they would generally agree to such exceptions if the identity of a minor needs to be protected.
Another scenario this may be acceptable, he said, would be to protect the privacy and identity of a witness or complainant who is suffering from a wicked sickness.
WINDHOEK
Namibian lawyers have told Judge President Petrus Damaseb that his plan to block the media and the public from gaining access to certain court cases and documents would open floodgates of abuse by unscrupulous politicians and other powerful persons.
Damaseb made the suggestion in December 2019, just a month after the Judiciary came under fire for blocking access to court papers involving the disappearance of N$23 million paid for the failed Kora music awards.
In court papers filed in April 2019, Kora music awards founder Ernest Adjovi fingered President Hage Geingob as having been a catalyst in organisers striking a multi-million dollar with the Namibia Tourism Board, which later collapsed and has become a matter of litigation in the Namibian high courts.
Adjovi claims his close friendship with Geingob directly led to the signing of agreements to bring the awards show to Namibia.
Responding to Namibian Sun through his lawyer Sisa Namandje at the time, Geingob denied Adjovi’s allegations.
It is widely believed that the accusations made against Geingob in the Adjovi affidavits was why the Judiciary kept the matter out of public reach as the court case was declared ‘in camera’ at the time, with neither the media nor members of the public having access to the proceedings.
The Judiciary claimed at the time that it has instituted investigations into why the Kora matter was held in secret, but the outcome of that investigation was never made public.
By law, the head of state appoints the chief justice and the judge president.
A month after it came to light that the Kora case was held in secret, Damaseb wrote to several stakeholders, including the Law Society of Namibia (LSN), seeking input on plans to bar the press and public from accessing certain cases.
Lawyers hit back
The legal fraternity, through LSN, responded that Damaseb’s plans would be a blow to transparency and unconstitutional.
These sentiments are contained in a memorandum submitted to Damaseb on 12 March 2020.
“Members are concerned that this amendment will be open to abuse by politicians and certain high-ranking persons to circumvent transparency in state affairs,” the document read.
Lawyers also feel that Namibia is currently at a juncture where the trust in public servants and government processes is at an “all-time low”.
“Our country is coming to grips with alleged high-level corruption, and that this might well be the tip of the iceberg, we can ill-afford to cast further suspicion on the integrity of our courts,” they said.
The law society also feels that in the absence of legislation for the disclosure of information by government and its agencies to the public and the media, the proposed rules will “frustrate access to information and transparency”.
Unconstitutional
According to the law society, the proposed rules do not appear to satisfy constitutional requirements.
“The extent of the limitation in this case is not ascertainable since there are non-criteria or guidelines - only the unfettered discretion of the identified decision-makers, deciding in private without any safeguards, such as a right of appeal,” the LSN said.
It added: “As the public has the right to observe all High Court proceedings in open court, the public must also have the right to a formal, transparent process whereby the court rules that the public’s right in this regard is curtailed, through the application of one or more of the four exceptions.”
The legal profession’s regulating body questioned how a constitutional right, as entrenched in Article 12, could be abolished through application of an exception without formal public proceedings.
“Without a formal application and ruling by the court to justify one or more of the exceptions being present and applied, followed by an order to proceed in camera, there is no accountability on the part of the Judiciary, no possibility of oversight by the public and, most importantly, no means to appeal any decision to taken in this regard,” the society said.
Considering recommendations
LSN director Rietha Steinmann last week told Namibian Sun that the requested input from its members is up for consideration by its standing committee on civil litigation at its next meeting.
“This committee will thereafter make the necessary recommendations to the council of the LSN. The LSN council will consider all recommendations made and will consult further, if necessary, before submissions are made to the honourable Judge President,” she said.
The Editor’s Forum of Namibia chairperson Frank Steffen said they would generally agree to such exceptions if the identity of a minor needs to be protected.
Another scenario this may be acceptable, he said, would be to protect the privacy and identity of a witness or complainant who is suffering from a wicked sickness.
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