As much as all the aspects of justice we have discussed so far are interesting and comforting we know that the poorer you are the more difficult it is to get justice. It is that simple. Human rights activists have long since recognised this and have been agitating for change. So, as much as things are not perfect, there has been improvement.
An improvement is that in most constitutional democracies we now have a right to legal representation, meaning that we cannot be deprived of having a lawyer represent us. It is a right that a government cannot take a way or amend even if the majority want this. Article 12 of the Namibian Constitution provides: – a person shall be entitled to be defended by a legal practitioner of their choice.
Still the legal profession has acquired a problematical reputation and there are more bad jokes about us than of any other profession. Lawyers are often seen as artful, avaricious, cunning and generally self-serving. In my view the hard evidence shows that the legal profession is no more deviant than other professional groups but has done more to advance the interests of humanity. Here I would like to clear up some misunderstandings about lawyers. A lawyer is there to make up lies to help.
This is a very popular misconception. It is a matter of very grave misconduct for any lawyer to make up a case and/or lies, in order to help the client. The lawyer can only take what the client says is the truth and do his/her best with that. So if you are charged with murder and tell your lawyer that you did indeed kill the victim your lawyer cannot take the stance in Court that you did not kill.
However, your lawyer is still allowed to insist that the State prove its case against you because, under the Constitution, you are innocent until guilt is proved. You are not obliged to admit guilt. So the lawyer can cross-examine witnesses who claim to have seen you do this to test if they can be relied on.
What he cannot so is to put any question that amounts to a denial that you killed. It follows that it is not necessary for a lawyer to believe the client. It is actually dangerous for a lawyer to just believe his/her client. The smart lawyer knows that humans will lie, even to their lawyers, and if and when they are caught out in that lie they risk being condemned even though innocent. There is the very famous case of Timothy Evans, one of the last person to be hanged in the United Kingdom. His problem was that, although he was innocent, he was a very bad witness and told many lies. I have mooted the possibility that this may also have been a problem as regards Oscar Pistorius.
I always just looked at ALL the facts and evidence to see what the Court could be induced to accept that was in the best interests of my client. This includes destroying the credibility of a rape victim by way of cross-examination and leading controverting evidence, provided that the lawyer NEVER submits anything that he/she KNOWS is a lie. So Hillary was doing her job. It would have actually been gross misconduct on her part not to have done that job to the very best of her ability.
When I joined the Courts in racist Rhodesia in 1962, I was utterly amazed at how White lawyers and Advocates fought with commitment, passion and conscientiousness on behalf of Black clients, such as the father of the freedom struggle Joshua Nkomo, even though they were against the end of White minority rule.This must be contrasted with the stance taken by Namibian lawyers who refused to act for Caprivi secessionists because they were of the view that secession was “unconstitutional”.
Personally I was appalled at this stance. As said, the lawyer is not required to believe in or subscribe to the stance of the client. It is a principle of justice that the worse the case of a human being the MORE that person needs to be represented. People have a right to challenge the legitimacy of the State. That is exactly what underpinned all the freedom struggles in this region.
I cannot help adverting to the Senior Advocate who wept in Court when representing President Zuma in the infamous “Spear Case”.
Had I been presiding I would have had the Advocate charged for unprofessional conduct.
A lawyer has no business to be weeping in Court. His emotional attachment to the issues served to put the interests of his client at risk just as a surgeon who operates on his own child would.
In ending we can agree that it is critically important that the poor, in particular, be guaranteed competent representation. So what is happening about my suggestion that the Dennis Robinson model be adopted in Namibia??