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CHAPTER 9
The Administration of Justice
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Article
78 - The Judiciary |
| (1) |
The judicial power
shall be vested in the Courts of Namibia, which shall consist
of: |
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(a) |
a Supreme Court of Namibia; |
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(b) |
a High Court of Namibia; |
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(c) |
Lower Courts of Namibia. |
| (2) |
The Courts shall
be independent and subject only to this Constitution and the
law. |
| (3) |
No member of the
Cabinet or the Legislature or any other person shall interfere
with Judges or judicial officers in the exercise of their judicial
functions, and all organs of the State shall accord such assistance
as the Courts may require to protect their independence, dignity
and effectiveness, subject to the terms of this Constitution
or any other law. |
| (4) |
The Supreme Court
and the High Court shall have the inherent jurisdiction which
vested in the Supreme Court of South-West Africa immediately
prior to the date of Independence, including the power to regulate
their own procedures and to make court rules for that purpose. |
Article
79 - The Supreme Court |
| (1) |
The Supreme Court
shall consist of a Chief Justice and such additional Judges as
the President, acting on the recommendation of the Judicial Service
Commission, may determine. |
| (2) |
The Supreme Court shall be presided
over by the Chief Justice and shall hear and adjudicate upon appeals emanating
from the High Court, including appeals which involve the interpretation,
implementation and upholding of this Constitution and the fundamental
rights and freedoms guaranteed thereunder. The Supreme Court shall also
deal with matters referred to it for decision by the Attorney-General
under this Constitution, and with such other matters as may be authorised
by Act of Parliament. |
| (3) |
Three (3) Judges
shall constitute a quorum of the Supreme Court when it hears
appeals or deals with matters referred to it by the Attorney-General
under this Constitution: provided that provision may be made
by Act of Parliament for a lesser quorum in circumstances in
which a Judge seized of an appeal dies or becomes unable to act
at any time prior to judgment. |
| (4) |
The jurisdiction
of the Supreme Court with regard to appeals shall be determined
by Act of Parliament. |
Article
80 - The High Court |
| (1) |
The High Court shall
consist of a Judge-President and such additional Judges as the
President, acting on the recommendation of the Judicial Service
Commission, may determine. |
| (2) |
The High Court shall
have original jurisdiction to hear and adjudicate upon all civil
disputes and criminal prosecutions, including cases which involve
the interpretation, implementation and upholding of this Constitution
and the fundamental rights and freedoms guaranteed thereunder.
The High Court shall also have jurisdiction to hear and adjudicate
upon appeals from Lower Courts. |
| (3) |
The jurisdiction
of the High Court with regard to appeals shall be determined
by Act of Parliament. |
Article
81 - Binding Nature of Decisions of the Supreme Court |
| A decision of the
Supreme Court shall be binding on all other Courts of Namibia
and all persons in Namibia unless it is reversed by the Supreme
Court itself, or is contradicted by an Act of Parliament lawfully
enacted. |
Article
82 - Appointment of Judges |
| (1) |
All appointments
of Judges to the Supreme Court and the High Court shall be made
by the President on the recommendation of the Judicial Service
Commission and upon appointment Judges shall make an oath or
affirmation of office in the terms set out in Schedule 1 hereof. |
| (2) |
At the request of
the Chief Justice the President may appoint Acting Judges of
the Supreme Court to fill casual vacancies in the Court from
time to time, or as ad hoc appointments to sit in cases involving
constitutional issues or the guarantee of fundamental rights
and freedoms, if in the opinion of the Chief Justice it is desirable
that such persons should be appointed to hear such cases by reason
of their special knowledge of or expertise in such matters. |
| (3) |
At the request of
the Judge-President, the President may appoint Acting Judges
of the High Court from time to time to fill casual vacancies
in the Court, or to enable the Court to deal expeditiously with
its work. |
| (4) |
All Judges, except
Acting Judges, appointed under this Constitution shall hold office
until the age of sixty-five (65) but the President shall be entitled
to extend the retiring age of any Judge to seventy (70). It shall
also be possible by Act of Parliament to make provision for retirement
at ages higher than those specified in this Article. |
Article
- 83 Lower Courts |
| (1) |
Lower Courts shall
be established by Act of Parliament and shall have the jurisdiction
and adopt the procedures prescribed by such Act and regulations
made thereunder. |
| (2) |
Lower Courts shall
be presided over by Magistrates or other judicial officers appointed
in accordance with procedures prescribed by Act of Parliament. |
Article
- 84 Removal of Judges from Office |
| (1) |
A Judge may be removed
from office before the expiry of his or her tenure only by the
President acting on the recommendation of the Judicial Service
Commission. |
| (2) |
Judges may only
be removed from office on the ground of mental incapacity or
for gross misconduct, and in accordance with the provisions of
Sub-Article (3) hereof. |
| (3) |
The Judicial Service
Commission shall investigate whether or not a Judge should be
removed from office on such grounds, and if it decides that the
Judge should be removed, it shall inform the President of its
recommendation. |
| (4) |
If the deliberations
of the Judicial Service Commission pursuant to this Article involve
the conduct of a member of the Judicial Service Commission, such
Judge shall not participate in the deliberations and the President
shall appoint another Judge to fill such vacancy. |
| (5) |
While investigations
are being carried out into the necessity of the removal of a
Judge in terms of this Article, the President may, on the recommendation
of the Judicial Service Commission and, pending the outcome of
such investigations and recommendation, suspend the Judge from
office. |
Article
85 - The Judicial Service Commission |
| (1) |
There shall be a
Judicial Service Commission consisting of the Chief Justice,
a Judge appointed by the President, the Attorney-General and
two members of the legal profession nominated in accordance with
the provisions of an Act of Parliament by the professional organisation
or organisations representing the interests of the legal profession
in Namibia. |
| (2) |
The Judicial Service
Commission shall perform such functions as are prescribed for
it by this Constitution or any other law. |
| (3) |
The Judicial Service
Commission shall be entitled to make such rules and regulations
for the purposes of regulating its procedures and functions as
are not inconsistent with this Constitution or any other law. |
| (4) |
Any casual vacancy
in the Judicial Service Commission may be filled by the Chief
Justice or in his or her absence by the Judge appointed by the
President. |
Article
86 - The Attorney-General |
| There shall be an
Attorney-General appointed by the President in accordance with
the provisions of Article 32(3)(i)(cc) hereof. |
Article
87 - Powers and Functions of the Attorney-General |
| The powers and functions
of the Attorney-General shall be: |
| (a) |
to exercise the
final responsibility for the office of the Prosecutor-General; |
| (b) |
to be the principal
legal adviser to the President and Government; |
| (c) |
to take all action
necessary for the protection and upholding of the Constitution; |
| (d) |
to perform all such
functions and duties as may be assigned to the Attorney-General
by Act of Parliament. |
Article
88 - The Prosecutor-General |
| (1) |
There shall be a Prosecutor-General
appointed by the President on the recommendation of the Judicial Service
Commission. No person shall be eligible for appointment as Prosecutor-General
unless such person: |
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(a) |
possesses legal qualifications
that would entitle him or her to practise in all the Courts of
Namibia; |
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(b) |
is, by virtue of his or her
experience, conscientiousness and integrity a fit and proper
person to be entrusted with the responsibilities of the office
of Prosecutor-General. |
| (2) |
The powers and functions
of the Prosecutor-General shall be: |
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(a) |
to prosecute, subject to the
provisions of this Constitution, in the name of the Republic
of Namibia in criminal proceedings; |
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(b) |
to prosecute and defend appeals
in criminal proceedings in the High Court and the Supreme Court; |
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(c) |
to perform all functions relating
to the exercise of such powers; |
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(d) |
to delegate to other officials,
subject to his or her control and direction, authority to conduct
criminal proceedings in any Court; |
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(e) |
to perform all such other functions
as may be assigned to him or her in terms of any other law. |