Tuesday 11 May 2021
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A nation Governed in courts


Whenever I open my eyes in the mornings, I make it a point to pray for those administering our justice system to remain independent and steadfast in the ideals of natural justice.
The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials, but it seems even those that are tasked to Govern the State by enforcing the rule of law do not understand it.
I hold our justice system dearly now more than ever because Namibia has in recent years become a country seemingly governed in courts.
Time and time again we have witnessed how major decisions have been decided in court mainly because those in power are failing to act within the confines of the law or rather failing to interpret the law properly.
You name them, the election case of 2009, Omaruru councilors dragging government to court in 2013, permanent secretaries Erastus Negonga and Jospeph Iita taking Government to court, NHE being dragged to court, Arandis Power also trying its luck in court against Government and many more.
Although Government has won many of these cases, the fact that it is being dragged to court so often says a lot about the state of Governance in this country.
The courts have become the ex-officio Government if one may say so.
The mere fact that so many of Government decisions continues to be challenged in court should raise alarm bells in the heads of those running the affairs of Government that something is wrong. We cannot expect the courts that have not been elected to govern to take-over the job of those given the mandate by the populace to run the affairs of the State.
In hindsight, the very fact that aggrieved parties see a glimmer of hope to win in court against Government spells trouble because decisions taken by Government and other public agencies should be definitive by nature and block any room for a challenge.
Tempering with the Constitution is something that has also featured prominently in this country. The Constitution is a sacred instrument that should not be tempered with at any cost-unless of course there is reasonable grounds to do so.
The Constitution which is the Supreme Law of this country is very explicit when it comes to outlining what is permissible and what not, but at times it seems we choose not to play by the rules.
Another issue which has come under scrutiny in recent days is the manner in which the law is interpreted.
Legal experts have long argued that it is sensible to state in a contract which set of laws will govern it. Otherwise, if the contract terms become relevant later in a dispute between the parties, there will be a risk of a wasteful preliminary battle about which set of laws should be used to interpret the parties’ obligations.
Others have suggested that it is a particularly important issue in an international context, where a contract may be connected with several places. For example, the parties may be in different countries and the place for performance may be a third country. In such cases there are several legal systems with potential relevance to the contract, making it all the more necessary to decide expressly what system of law will govern.
A governing law clause does this by setting out expressly the parties’ choice of the law that will apply. It is inevitable that contracts will produce disputes from time to time. How will those disputes be handled?
Sometimes parties choose to resolve disputes by arbitration, in which case they include an arbitration clause in their contract. On other occasions, however, parties are happy to rely on the courts to handle any disputes.
Many multinationals continue to scramble for state contracts in Namibia, this tells us that our laws must be up to date to address international challenges that might arise. We should not wait until trouble befalls us before we act.
A case worth mentioning is that of the citizenship fight between Government and a Dutch family. It cannot be right that Government spends millions yearly on offices such as that of the Attorney General and Law Reform and Development Commission yet the country first has to lose in court before we realise that some of our laws are not with, but against us.
In conclusion, it is worthwhile to mention that the independent nature of our courts is paramount. The separation of powers that exists in Government should continue unhindered because we have become dependent on courts to step in when those tasked to rule are failing to do so.

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