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Wednesday 17 January 2018
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Government’s epic legal challenges

Government has been fighting herculean court battles in recent years and losing quite a number of them, and although this has President Hage Geingob worried, his principle legal advisor is not too worried.
More and more government ministries, offices and agencies continue to flock to the attorney general, Sakeus Shanghala, seeking legal opinion on issues arising in the course of their duties.
This has often been perceived to mean that public servants are not fully conversant with the laws that govern their work.
The situation has gotten out of hand in recent years, a good example is the now defunct Mass Housing Programme which provided private companies with an opportunity to sue government for abruptly stopping the programs despite have entered into legally binding agreements with private construction companies.

 
At the last Cabinet meeting, Geingob expressed his concern over the number of cases that government is losing in court. Many saw this as a direct attack on the attorney general and the Minister of Justice, Dr. Albert Kawana respectively.
He said government lost many cases because of carelessness and even mooted the idea of lawyers only getting paid based on the success of their cases. It’s not clear if this idea will be followed up.
But Shanghala is not overly worried, if his responses to questions sent to him recently are anything to go by.
Although he is of the opinion that the increased litigation may be due to the bad implementation of several new laws, he is also of the view that the increase in litigation “is a testament to Namibia’s thriving democracy and the exercise of one’s rights.”
“It would concern this office if citizens were only able to air their views in the newspapers, but not obtain justice through the independent court system,” he stated.

 
He further expressed that losses in court represent development of the law, upholding of the rule of law and improvement of government service delivery.
“If government were to win every court case, there would be grave concern about the independence of the judicial system. The increased litigation may be due to the implementation of several new laws or regulations such as the Public Procurement Act (Act no. 15 of 2015) which public servants are not fully conversant with yet.

 
The litmus test is – has justice been served? The ends are to obtain justice, as between litigants, but also, for society. Win or lose is a manifestation of the operation of law, whether one disagrees or agrees wholeheartedly,” said Shanghala.
Between January 2017 and August 2017, the Office of the Attorney-General has recorded a total of 423 legal opinions rendered in 2017. These statistics recorded for the first and second quarter only shows a narrow decline when compared to the 463 legal opinions that were rendered in first and second quarters of 2016.
Shanghala, says legal opinions make up about 56 percent of the work done by the office.
The scrutinizing of agreements and bills make up a smaller percentage of the work done at about 39 and 5 percent respectively.
He further notes that government offices, ministries and agencies do not realize the full capability of the office of the Attorney-General.

 
However, the office tries to alert them as to the need to submit all binding documents to the office for scrutiny in accordance with Cabinet decision no.7th /21.07.15/011.
Shanghala stated that his office is not adequately resourced to provide specialized training for lawyers and administrative staff. “To this end, NSFAF has been critical in training our staff to specialize in various areas of the law,” he said.
Moreover, the office is also hampered in service delivery in the North of the country, due to lack of office staff permanently stationed at the High Court in Oshakati and all the Regional and Local authorities that require frequent legal assistance.
He indicated that his office is working on making the law more accessible to client-facing Ministries, such as the Ministry of Home Affairs and Immigration, the Namibian Police, Customs and Excise etc. by providing such officials with pocket sized compendiums of the laws relevant to their sector, in collaboration with the named offices, ministries and agencies.

 
Government’s legal woes remain despite civil servants often undergoing training courses to increase their skill-set on the government system.
Shanghala says there is still more that needs to be done on basic administrative procedures and the content of their decisions which need to be made or taken with a view that everything must be reasoned, done or taken in process that is fair and conforms to the basic tenets of good administrative law to avoid review and other avoidable challenges in the courts.
“Many a time, we repeat opinions and make comments upon agreements which the line offices, ministries and agencies as experts could have foreseen and incorporated into their work. With repetition come differing opinions when more than one lawyer works on a matter.

 
To avoid contradictions of opinions (unless we specifically abandon a previously held position) we publish Frequently Asked Legal Questions (FALQ’s).
We will soon publish the 4th Edition and circulate it in early 2018,” stated Shanghala




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