Namibia (formerly called South West Africa) is located along the coast of the Atlantic Ocean and borders South Africa, Angola, and Botswana. Its earliest inhabitants, dating back 20,000 years, were the San, hunter-gatherers who are one of the oldest indigenous tribes on the continent. The Portuguese explored the region in the late 15th century. Almost two hundred years later, Afrikaner traders arrived, followed by the British and Germans. In 1884, Germany declared South West Africa a colonial territory and imposed a campaign of systematic repression and violence as well as the mass expropriation of land. The Germans ordered the enslavement and extermination of indigenous peoples including the Nama and the Herero; almost 80% of the Herero were killed.
During World War I, the Afrikaner government of South Africa invaded the country, drove out the Germans, and encouraged White Afrikaners to build settlements. A 1920 mandate from the League of Nations recognized South Africa’s administrative authority over the region; although most Germans left the country, the grazing lands they appropriated were not returned to indigenous communities but instead were granted to White ranchers. With profits from abundant mineral deposits, diamonds, fishing, and cattle, the country’s economy prospered, but its Black inhabitants remained impoverished. Opposition to South African rule spread, leading to intermittent, sometimes violent protests and the creation of Black political parties, including the South West Africa People's Organization (SWAPO).
Although a legal case filed in the United Nations World Court contesting South Africa’s occupation was dismissed in 1966, the following year a UN resolution called for South Africa to leave the country. In 1968, the UN recognized the country under its new name, Namibia, and the following year declared South Africa’s presence illegal. Arguing that it was not bound the UN declaration, South Africa continued to deploy forces to suppress SWAPO and the growing opposition guerilla movement. However, South Africa struggled to maintain control, facing a faltering economy, the mounting expenses of its occupation, and its costly involvement in Angola’s civil war. A peace settlement was reached in 1988 and Namibia declared independence in 1990.
Legal System
Namibia has a hybrid legal system that incorporates English common law procedural rules (including adversarial court proceedings), elements of the Roman Dutch tradition, and customary law. Sources of law include the constitution, Acts of Parliament, case law, common law, customary law, and international law. Under Namibia’s Constitution, international law may be applied directly by the courts without legislative incorporation. However international law is subject to the constitution and acts of parliament.
The Courts
Namibia has a three-tier court system: the Supreme Court, High Court, and lower courts.
Supreme Court
The Supreme Court hears appeals from the High Court, cases referred for review by the Attorney General, and other matters authorized by Parliament. The Court also has original jurisdiction over challenges to the outcome of a presidential election.
Article 79 of the Constitution provides for a Chief Justice and “such additional judges as the President, acting on the recommendation of the Judicial Services Commission, may determine.” At least three justices are required to hear a case but the Chief Justice has authority to require a larger (odd) number to review a particular case.
The judicial appointment process in Namibia allows for some flexibility, enabling the appointment of temporary judges to meet short-term or pressing needs. The President may assign a High Court judge to serve on the Supreme Court on an ad hoc basis for a set period of time or to handle an important case involving constitutional questions and fundamental rights. The same authority exists for temporary appointments to the High Court. Namibia’s judiciary has, on limited occasions, used foreign judges to serve on the Supreme Court in a temporary capacity for a fixed term.
High Court
The High Court has original jurisdiction to hear civil and criminal cases as well as appeals from the lower courts. It also reviews proceedings below if there is an allegation that corruption or bias affected the judicial process. The High Court serves as an admiralty court, labor court, and electoral court, and it has a special process to fast-track commercial disputes.
Criminal defendants have an automatic right of appeal to the High Court from a conviction or sentence issued by a lower court. However, if the prosecution intends to file an appeal, it must seek leave from a single judge of the High Court. For civil cases, there is an appeal of right by either litigant. Most civil and criminal trials and civil appeals are heard by a single judge; criminal appeals are typically heard by two judges. The Court President has discretion to set the number of judges to hear a case.
The size of the High Court is not fixed. The number of judges is set by the President based upon the recommendation of the Judicial Services Commission. There are currently two divisions of the High Court. One sits in the capital city of Windhoek and the other in Oshakati.
Lower Courts
There are three lower courts: magistrates’ courts, labour courts, and customary courts.
Magistrate Courts
Magistrates’ Courts hear the less serious civil and criminal matters that constitute the majority of litigation in Namibia. They are located throughout the country and are divided into six regional divisions. There are different categories of magistrates: Chief, Deputy Chief, Divisional, Regional, District, and Additional. Additional Magistrates may hear cases in the district court or other lower courts. Magistrate court judgments are appealed to the High Court.
Labour Courts
The Labour Courts, staffed by magistrates, preside over labor disputes. The majority of labor cases are first sent for mediation or settlement.
Community Courts
Community Courts hear cases involving the customary law of the area in which they are located. Legal issues include inheritance, disputes over debt, and other civil matters that fall under customary law. Community courts are required to maintain written records of all proceedings. Appeals are taken to the magistrates’ court and may ultimately be reviewed by the High Court.
Judicial Services Commission
The Judicial Services Commission (JSC) is tasked with overseeing the process for appointing and removing judges, the Ombudsman, and the Prosecutor-General. Its members include the Chief Justice, Deputy Chief Justice, Attorney General, and two members of the bar. The JSC also provides recommendations related to judicial compensation and benefits and oversees judicial conduct and discipline.
Judicial Selection and Tenure
Supreme Court justices are appointed by the President upon the recommendation of the Judicial Services Commission (JSC). Candidates must have previous experience as a judge in Namibia or another country with a similar legal system or have practiced as an advocate or worked as a full-time legal practitioner for at least ten years.
High Court judges are also appointed by the President upon recommendation by the JSC. Recommendations for judgeships may be submitted by the Law Society of Namibia, other law-related organizations, the Chief Justice, and the High Court President. Candidates must have a law degree and previous experience as a judge or five years of experience as an advocate, legal practitioner, or magistrate. The selection process for High Court judges includes an interview by the JSC and, beginning in 2023, this interview process is open to the public.
Magistrates are appointed by the Minister of Justice upon the recommendation of the Magistrates Commission. Candidates must have a recognized qualification in law. To be appointed as a permanent magistrate, the candidate must be a citizen of Namibia.
The Magistrates Commission sets the qualifications, salary, and conditions of service for all magistrates, including promotions, transfer, and discipline. It is also tasked with protecting the interests of the magistracy, preparing its budget, setting training recommendations, issuing a code of conduct, and investigating complaints of misconduct and disability. Members of the Commission include a High Court judge, the Chief Magistrate, one Divisional or Regional Magistrate, a Ministry of Justice staff member, a teacher, one individual chosen by the Public Service Commission and another by the Attorney General. Candidates for appointment to the Commission must have ten years of work experience including some time at the management level.
Community court judges are appointed (and may be removed) by the Minister of Justice upon the recommendation of local traditional authorities. Candidates must be a person of good standing in the community and familiar with the region’s customary law.
All judges and magistrates in Namibia serve until the mandatory retirement age of 65, but the President has discretion to extend a judge’s tenure to the age of 70.
Judicial Conduct and Discipline
A complaint against a judicial officer is initiated by filing a sworn statement with the office of the Chief Justice setting forth a factual basis. Allegations of misconduct or incapacity are investigated by a special tribunal created by the Judicial Services Commission; the tribunal is made up of a chair and two current or former judges. Its proceedings are confidential. The tribunal has authority to dismiss the complaint or forward to the President a recommendation for sanction (reprimand, counseling, issuing an apology) or removal.
Judicial Administration
Namibia’s Office of the Judiciary is an independent judicial branch entity responsible for overseeing the administrative needs of the court system. Before it was established in 2015, the executive branch, through the Ministry of Justice, was responsible for judicial administration. The Office of the Judiciary is staffed by judicial officers and civil servants who are appointed by the Prime Minister upon the recommendation of the Chief Justice. Its responsibilities include managing the judiciary’s budget appropriations, setting policy for court information technology, and establishing professional requirements for court administrative personnel.
Alternative Dispute Resolution
In 2014, a new law was introduced authorizing court-connected mediation in the High Court. Pursuant to High Court rules, judges may, at any time, either by their own initiative or at the request of a party, refer the proceedings or any issues in dispute for alternative dispute resolution. Mediation is mandatory for certain categories of cases designated by the Court’s President, including claims involving insurance, medical or professional negligence, building contracts, and divorce.
Legal Aid
Namibia’s constitution provides for a “legal system seeking to promote justice on the basis of equal opportunity by providing free legal aid in defined cases with due regard to the resources of the State.” The Supreme Court has interpreted this provision as suggesting an affirmative duty to inform individuals of their right to representation and offer legal services. The Legal Aid Act codifies this responsibility. The Legal Aid Directorate, an office under the Ministry of Justice, was created to implement these constitutional and statutory provisions. It offers legal representation to people in police custody, indigent criminal defendants, and civil legal aid to the poor and to vulnerable groups. Another legal aid provider is the Legal Assistance Centre, a public interest law firm that offers legal representation in cases that implicate constitutional rights and the public interest. The Centre relies on private donations. The Legal Aid Clinic at the University of Namibia also provides representation to the indigent, using both students and private practitioners.
The Ombudsman
The Ombudsman is a constitutionally created independent government official tasked with promoting fairness, accountability, and transparency in the public sector. This official is appointed by the President based upon recommendations from the Judicial Services Commission. The 1990 Ombudsman Act defines its mandate broadly to include investigating alleged violations of fundamental rights or freedoms, corruption, discourtesy, and conduct by a government official “which would properly be regarded as unlawful, oppressive or unfair in a democratic society.” The ombudsman may also investigate the conduct of public entities (the police force, Public Services Commission, etc.), practices by individuals and private institutions that violate fundamental rights, as well as allegations of environmental exploitation and public corruption.
Complaints may be submitted online, by mail, phone, or in person. If efforts to resolve the issue informally are not successful, the Ombudsman’s office will undertake an investigation and may issue a report with findings and recommendations. The Ombudsman’s office also has a Children’s Advocate that represents the interests of children in the country though investigations and monitoring.
Anti-Corruption Commission
The Anti-Corruption Commission is an independent entity created by legislation in 2003. It has investigative authority to combat corruption and is tasked with implementing measures to prevent corruption in the public and private sector. The Commission advises entities on strategies to safeguard against corruption. As part of the Commission’s public education mandate, it partners with media outlets (including social media) to inform citizens about the impact of corruption and their rights as victims of corruption schemes. Every July 11, Africa Anti-Corruption Day, the Commission participates in public outreach activities throughout Namibia.