TODAY marks the second year in the ugly epoch of our administration of justice when custodians of our State institution acted in blatant violation of Judge Shafimana Ueitele when he ordered the Minister of Lands and Resettlement and the Chairperson of the Communal Land Board to take action against “illegal settlers” in the protected area, N#jagna Communal Conservancy of the marginalised San community.
The judgement was sequel to a court action by the N#jagna Conservancy Committee on 13 August 2013 seeking for the restraining and removal of illegal fencing by 36 politically connected and influential businessmen in the environmentally fragile conservancy of the San people.
The marginalized San people derive their income from the N#jagna Conservancy which helps to sustain their families and send their children to school.
In spite of Judge Ueitele’s judgment and several pleas to protect them from the “politically influential and powerful businessman”, the N#jagna Conservancy members continue languish in poverty.
It could perhaps be due to incompetence or brute political aversion to execute the judge’s order but it signals a negative message especially at a time when we are headed for the long overdue land conference in October.
Custodians of government agencies and ministries ought to be compliant with the law and not be seen to protect economic interests of the “politically influential and powerful business people” against the weak and marginalized communities.
Most of the 36 business people and politically influential illegal squatters who hail from the northern Namibia and are failing to comply with the court order ought to be taken to task to illustrate that no one is above the law.
These events have drawn attention to a foundational question in administrative justice and separation of power: If government agencies disobey a judicial order, can the courts use their contempt power to force compliance?
The potency of contempt findings against private defendants arises most obviously from the court’s power to attach sanction of fine or imprisonment. But are contempt sanctions available against government agencies defendants?
If any government entity disobeys a judicial order, the official guilty of disobedience should be sanctioned for contempt. In essence, the government official responsible for an agency’s disobedience must be sanctioned, including by imprisonment.
For these offences, it is imperative that sanction must include the official personally paying the fine. This sanction raises similar concerns as imprisonment about identifying the blameworthy official and the actions that should’ve been taken.
Therefore, if some future officials were to engage in clear enough disobedience and if the officials are shameless enough to be undeterred by contempt finding, sanctions should be wielded to try to force that official to comply.
It is time that our judicial system is respected as an arm of the state regardless of who has been ordered by it to respond to orders and legal judgments.
Confidente. Lifting the Lid. Copyright © 2015