Magistrates standoff exposes a constitutional vacuum Namibia must no longer ignore
OPINION
The urgent application brought by the Minister of Justice against the Judges’ and Magistrates’ Association of Namibia and others last week promised to become one of the most important constitutional showdowns in Namibia’s post-independence judicial history. Instead, it fizzled out in a withdrawal, leaving the nation with more questions than answers.
The minister approached the High Court on an urgent basis seeking to interdict magistrates from what was characterised as an “illegal partial stoppage” of court work.
A rule nisi was sought, declaring their go-slow unlawful, compelling them to resume full judicial duties, and directing them to abandon what the minister described as a de facto strike. Yet, when the Magistrates' Association clarified in their papers that they were not on strike and were indeed reporting for duty, the minister withdrew the application. The respondents, in turn, withdrew their conditional counter-application, and the matter was removed from the roll.
The immediate legal issue may have died in the courtroom, but the constitutional issues have not. In truth, they remain as alive and unresolved as ever.
This dispute has exposed a deep structural ambiguity at the heart of Namibia’s constitutional framework: What is the legal relationship between the judiciary, the Magistrates' Commission and the executive, particularly the Minister of Justice?
1. A constitutional vacuum in broad daylight
In his founding affidavit, the minister premised his standing on Articles 40(a), (d), and (k), read with Article 41, arguing that as a Cabinet member he has constitutional and statutory oversight over the administration of justice in the lower courts, especially regarding magistrates’ remuneration, functioning, and performance. He relied further on sections 18(2) and 27 of the Magistrates Act, Act 3 of 2003.
The Magistrates' Association countered that magistrates are judicial officers, not employees of the executive. They fall under the supervision of the chief justice, not the minister, as confirmed by Article 78(6) and (7) of the Constitution.
The association emphasised that the Magistrates' Commission, not the minister, is empowered to investigate alleged misconduct and regulate discipline. Thus, they argued, the minister lacked locus standi to seek declaratory relief based on the Magistrates Act or the Code of Conduct.
These arguments were never tested because the matter dissolved procedurally. But the underlying constitutional questions remain pressing.
2. Unanswered question one: Can the minister direct judicial officers?
This is not merely a bureaucratic objection; it strikes at the heart of the separation of powers.
If the executive can direct magistrates on how to conduct judicial duties, the independence of the judiciary is fundamentally compromised. Article 78 places the entire judiciary, the High Court, the Supreme Court, and the lower courts, under the authority and supervision of the chief justice, not the minister.
Yet, magistrates’ salaries, infrastructure and administrative structures sit within the Ministry of Justice. This creates an uneasy intersection between administrative oversight and judicial independence. Namibia needs clarity, constitutionally anchored clarity.
3. Unanswered question two: Are magistrates 'employees'? Can they strike?
Another profound issue remains unsettled: do magistrates have the right to engage in partial or full industrial action?
The Constitution protects the right to assemble peacefully under Article 21(1)(d). But judicial officers are not ordinary workers. Their withdrawal of labour has an immediate and catastrophic impact on:
• the administration of justice,
• victims of crime,
• accused persons awaiting trial,
• and the functioning of society as a whole.
The Magistrates Act and Code of Conduct prohibit conduct that undermines judicial duties, but the law is silent on industrial action. There is no statute, regulation or constitutional provision explicitly stating whether magistrates may or may not strike. This vacuum is dangerous.
3.1. The forgotten victims: Accused persons and the right to a speedy trial
The most critical yet least examined consequence of this dispute lies in its impact on the fair-trial rights of accused persons, whose protection is guaranteed under Article 12 of the Namibian Constitution, including the right to a fair trial, the right to have their case heard within a reasonable time, and the right to justice without undue delay. A judicial go-slow, even if partial and grounded in legitimate grievances, poses a direct and immediate threat to these constitutional guarantees.
Magistrates’ courts handle the largest and most vulnerable segment of the justice system: accused persons in custody awaiting bail hearings; criminal trials already delayed by systemic backlogs; complainants seeking urgent protection orders; maintenance matters that determine the welfare of children; domestic-violence cases requiring swift judicial intervention; and routine remands and preliminary enquiries that depend on continuous judicial availability. When judicial output slows, accused persons face prolonged pre-trial incarceration, witnesses’ memories fade, evidence becomes susceptible to loss or contamination and victims’ confidence in the justice system deteriorates.
Although magistrates may have legitimate concerns regarding wages and working conditions, the constitutional rights of the public, especially those most vulnerable, remain in jeopardy during any interruption of court operations. It is for this reason that legal and constitutional clarity is urgently required, not only for judicial officers but for the countless Namibians whose rights depend on a functioning, efficient and independent court system.
4. Unanswered question three: Who speaks for the magistracy – the commission, the minister or the courts?
The Magistrates' Commission exists to protect judicial integrity and independence. It regulates discipline, appointments, enquiries and standards. Yet its boundaries remain uncertain in the face of executive authority. The minister argues that he has an interest in the administration of justice. The commission argues that he cannot direct judicial officers. The judiciary argues that magistrates fall under the chief justice. With this triangle of competing actors, the constitutional map is, at best, incomplete. And until the boundaries are drawn authoritatively, conflict is inevitable.
5. The precedent demands action
This entire constitutional deadlock echoes the seminal case of Ex Parte Attorney-General In Re: The Constitutional Relationship Between the Attorney-General and the Prosecutor-General 1998 NR 282 (SC).
In that landmark decision, the Supreme Court was called upon to resolve the inherent tension between the political attorney-general (AG) and the independent Pprosecutor-general (PG) regarding prosecutorial discretion. The court ruled that the PG’s quasi-judicial functions required complete independence from the executive, interpreting the AG’s "final responsibility" as political accountability, not operational control.
The current dispute between the Ministry of Justice and the Judges' and Magistrates' Association in Namibia is the judicial counterpart of the 1998 AG/PG case. Just as the nation required clarity on the prosecutorial function, it now urgently requires clarity on the judicial function.
The minister’s withdrawal means a High Court ruling is off the table, but the attorney-general still possesses the constitutional power to refer matters of public interest and constitutional significance directly to the Supreme Court.
6. Why the Supreme Court must now be approached
Article 87(c) of the Namibian Constitution, read together with section 15(1)(c) of the Supreme Court Act, Act 15 of 1990, empowers the attorney-general to refer constitutional questions directly to the Supreme Court. In light of the minister’s withdrawal of the urgent application, this mechanism is not only available, it is now necessary. The core constitutional issues raised in this dispute remain unresolved, and their determination is essential for the stability of the justice system.
The following questions demand authoritative clarification:
a) What is the precise constitutional relationship between the Minister of Justice, the Magistrates' Commission, and individual magistrates, particularly regarding oversight, remuneration, and discipline?
b) Are magistrates and judges “employees” for the purposes of labour legislation, and if not, what regime governs their labour-related disputes?
c) Do judicial officers have the legal capacity to participate in industrial action, whether partial or complete, without violating constitutional and statutory obligations?
d) How must courts balance judicial labour disputes against the constitutional rights of accused persons, particularly the right to a trial within a reasonable time and the broader public interest in uninterrupted judicial services?
e) Does the minister possess constitutional or statutory authority to issue directives to judicial officers, or would such authority violate the doctrine of the separation of powers?
Until these questions are answered at the highest level, the foundation of our justice system remains unsettlingly soft. The Executive has taken one step back, but the constitutional challenge must now take two steps forward.
7. Conclusion: Silence is no longer an option
Although the urgent application has been withdrawn and the dispute procedurally concluded, the underlying constitutional dilemmas persist, unaddressed, unresolved, and capable of resurfacing at any moment. The right of accused persons to a speedy trial remains vulnerable. Judicial independence stands exposed to competing interpretations. The boundaries of executive authority over the judiciary remain dangerously ambiguous.
Namibia cannot sustain a justice system built on constitutional uncertainty. The rule of law requires clarity, predictability and institutional balance. It is now incumbent upon the attorney-general to invoke Article 87(c) and refer these unresolved issues to the Supreme Court for authoritative determination. Only the Supreme Court can definitively delineate the contours of judicial independence, executive oversight, and the permissible scope of judicial labour action.
The constitutional void left by this withdrawal must not be allowed to persist. The nation deserves answers. The justice system requires certainty. And the rule of law demands decisive action now.
*Naboth N. de Celestino is a candidate legal practitioner at Bernhard Tjatjara and Co. Inc.
[email protected]
The minister approached the High Court on an urgent basis seeking to interdict magistrates from what was characterised as an “illegal partial stoppage” of court work.
A rule nisi was sought, declaring their go-slow unlawful, compelling them to resume full judicial duties, and directing them to abandon what the minister described as a de facto strike. Yet, when the Magistrates' Association clarified in their papers that they were not on strike and were indeed reporting for duty, the minister withdrew the application. The respondents, in turn, withdrew their conditional counter-application, and the matter was removed from the roll.
The immediate legal issue may have died in the courtroom, but the constitutional issues have not. In truth, they remain as alive and unresolved as ever.
This dispute has exposed a deep structural ambiguity at the heart of Namibia’s constitutional framework: What is the legal relationship between the judiciary, the Magistrates' Commission and the executive, particularly the Minister of Justice?
1. A constitutional vacuum in broad daylight
In his founding affidavit, the minister premised his standing on Articles 40(a), (d), and (k), read with Article 41, arguing that as a Cabinet member he has constitutional and statutory oversight over the administration of justice in the lower courts, especially regarding magistrates’ remuneration, functioning, and performance. He relied further on sections 18(2) and 27 of the Magistrates Act, Act 3 of 2003.
The Magistrates' Association countered that magistrates are judicial officers, not employees of the executive. They fall under the supervision of the chief justice, not the minister, as confirmed by Article 78(6) and (7) of the Constitution.
The association emphasised that the Magistrates' Commission, not the minister, is empowered to investigate alleged misconduct and regulate discipline. Thus, they argued, the minister lacked locus standi to seek declaratory relief based on the Magistrates Act or the Code of Conduct.
These arguments were never tested because the matter dissolved procedurally. But the underlying constitutional questions remain pressing.
2. Unanswered question one: Can the minister direct judicial officers?
This is not merely a bureaucratic objection; it strikes at the heart of the separation of powers.
If the executive can direct magistrates on how to conduct judicial duties, the independence of the judiciary is fundamentally compromised. Article 78 places the entire judiciary, the High Court, the Supreme Court, and the lower courts, under the authority and supervision of the chief justice, not the minister.
Yet, magistrates’ salaries, infrastructure and administrative structures sit within the Ministry of Justice. This creates an uneasy intersection between administrative oversight and judicial independence. Namibia needs clarity, constitutionally anchored clarity.
3. Unanswered question two: Are magistrates 'employees'? Can they strike?
Another profound issue remains unsettled: do magistrates have the right to engage in partial or full industrial action?
The Constitution protects the right to assemble peacefully under Article 21(1)(d). But judicial officers are not ordinary workers. Their withdrawal of labour has an immediate and catastrophic impact on:
• the administration of justice,
• victims of crime,
• accused persons awaiting trial,
• and the functioning of society as a whole.
The Magistrates Act and Code of Conduct prohibit conduct that undermines judicial duties, but the law is silent on industrial action. There is no statute, regulation or constitutional provision explicitly stating whether magistrates may or may not strike. This vacuum is dangerous.
3.1. The forgotten victims: Accused persons and the right to a speedy trial
The most critical yet least examined consequence of this dispute lies in its impact on the fair-trial rights of accused persons, whose protection is guaranteed under Article 12 of the Namibian Constitution, including the right to a fair trial, the right to have their case heard within a reasonable time, and the right to justice without undue delay. A judicial go-slow, even if partial and grounded in legitimate grievances, poses a direct and immediate threat to these constitutional guarantees.
Magistrates’ courts handle the largest and most vulnerable segment of the justice system: accused persons in custody awaiting bail hearings; criminal trials already delayed by systemic backlogs; complainants seeking urgent protection orders; maintenance matters that determine the welfare of children; domestic-violence cases requiring swift judicial intervention; and routine remands and preliminary enquiries that depend on continuous judicial availability. When judicial output slows, accused persons face prolonged pre-trial incarceration, witnesses’ memories fade, evidence becomes susceptible to loss or contamination and victims’ confidence in the justice system deteriorates.
Although magistrates may have legitimate concerns regarding wages and working conditions, the constitutional rights of the public, especially those most vulnerable, remain in jeopardy during any interruption of court operations. It is for this reason that legal and constitutional clarity is urgently required, not only for judicial officers but for the countless Namibians whose rights depend on a functioning, efficient and independent court system.
4. Unanswered question three: Who speaks for the magistracy – the commission, the minister or the courts?
The Magistrates' Commission exists to protect judicial integrity and independence. It regulates discipline, appointments, enquiries and standards. Yet its boundaries remain uncertain in the face of executive authority. The minister argues that he has an interest in the administration of justice. The commission argues that he cannot direct judicial officers. The judiciary argues that magistrates fall under the chief justice. With this triangle of competing actors, the constitutional map is, at best, incomplete. And until the boundaries are drawn authoritatively, conflict is inevitable.
5. The precedent demands action
This entire constitutional deadlock echoes the seminal case of Ex Parte Attorney-General In Re: The Constitutional Relationship Between the Attorney-General and the Prosecutor-General 1998 NR 282 (SC).
In that landmark decision, the Supreme Court was called upon to resolve the inherent tension between the political attorney-general (AG) and the independent Pprosecutor-general (PG) regarding prosecutorial discretion. The court ruled that the PG’s quasi-judicial functions required complete independence from the executive, interpreting the AG’s "final responsibility" as political accountability, not operational control.
The current dispute between the Ministry of Justice and the Judges' and Magistrates' Association in Namibia is the judicial counterpart of the 1998 AG/PG case. Just as the nation required clarity on the prosecutorial function, it now urgently requires clarity on the judicial function.
The minister’s withdrawal means a High Court ruling is off the table, but the attorney-general still possesses the constitutional power to refer matters of public interest and constitutional significance directly to the Supreme Court.
6. Why the Supreme Court must now be approached
Article 87(c) of the Namibian Constitution, read together with section 15(1)(c) of the Supreme Court Act, Act 15 of 1990, empowers the attorney-general to refer constitutional questions directly to the Supreme Court. In light of the minister’s withdrawal of the urgent application, this mechanism is not only available, it is now necessary. The core constitutional issues raised in this dispute remain unresolved, and their determination is essential for the stability of the justice system.
The following questions demand authoritative clarification:
a) What is the precise constitutional relationship between the Minister of Justice, the Magistrates' Commission, and individual magistrates, particularly regarding oversight, remuneration, and discipline?
b) Are magistrates and judges “employees” for the purposes of labour legislation, and if not, what regime governs their labour-related disputes?
c) Do judicial officers have the legal capacity to participate in industrial action, whether partial or complete, without violating constitutional and statutory obligations?
d) How must courts balance judicial labour disputes against the constitutional rights of accused persons, particularly the right to a trial within a reasonable time and the broader public interest in uninterrupted judicial services?
e) Does the minister possess constitutional or statutory authority to issue directives to judicial officers, or would such authority violate the doctrine of the separation of powers?
Until these questions are answered at the highest level, the foundation of our justice system remains unsettlingly soft. The Executive has taken one step back, but the constitutional challenge must now take two steps forward.
7. Conclusion: Silence is no longer an option
Although the urgent application has been withdrawn and the dispute procedurally concluded, the underlying constitutional dilemmas persist, unaddressed, unresolved, and capable of resurfacing at any moment. The right of accused persons to a speedy trial remains vulnerable. Judicial independence stands exposed to competing interpretations. The boundaries of executive authority over the judiciary remain dangerously ambiguous.
Namibia cannot sustain a justice system built on constitutional uncertainty. The rule of law requires clarity, predictability and institutional balance. It is now incumbent upon the attorney-general to invoke Article 87(c) and refer these unresolved issues to the Supreme Court for authoritative determination. Only the Supreme Court can definitively delineate the contours of judicial independence, executive oversight, and the permissible scope of judicial labour action.
The constitutional void left by this withdrawal must not be allowed to persist. The nation deserves answers. The justice system requires certainty. And the rule of law demands decisive action now.
*Naboth N. de Celestino is a candidate legal practitioner at Bernhard Tjatjara and Co. Inc.
[email protected]
Comments
Namibian Sun
No comments have been left on this article