Government fights court ruling on legal aid

The Namibian government has lodged an appeal against a High Court ruling that it provides free legal representation to 128 high treason suspects. The suspects, all charged in connection with their involvement in secessionist activities, won their case against the government on Friday morning, when three judges ruled unanimously that the Director of Legal Aid provide the men with representation. The Namibian reported on Monday that hours after the judgment, the government lodged its appeal to the Supreme Court. The report quoted government attorney Vicki Erenstein ya Toivo as saying that the state would still prefer to see the suspects - in custody for almost two years - go on trial on 4 February 2002 with legal representation. Nonetheless, she said: "It is our view that there is no right to legal aid in the constitution. The state is under no obligation to provide legal aid. That is why we have Article 95." Part of Article 95, which sets out principles of state policy but can not be enforced by the courts, states that the government must adopt policies aimed at "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". Zen Mnakapa, senior spokesman for Namibia's National Society for Human Rights (NSHR) told IRIN on Monday that the government had "the primary responsibility to ensure justice for all". "Our positions is that these people must be afforded a fair trial and a fair trial can only take place if they are represented legally. As far as we are concerned, the Namibian constitution, in Article 12, says that in regard to fundamental rights for everyone, every person is entitled to a fair trial. These people are innocent until proven guilty in an independent, competent and impartial court of law," he said. "With regards to Article 95 of the constitution ... it is clearly stipulated that the state shall afford everyone with legal representation, but there is a qualification that says that this depends on the availability of state resources. We think that in principle the government is under obligation to make sure these 128 people be accorded such legal assistance. "That does not mean other institutions willing to lend a helping hand cannot do so, but I must emphasise that it is the primary duty of the government of the day to provide such assistance to everyone, including these people," Mnakapa added. Delivering the ruling on Friday, Acting Judge Harold Levy was quoted as saying that any person before a Namibian court was entitled to a fair and proper trial, and that essential to a fair trial was the right to be legally represented. He said the constitution did not intend that laws could be made which would entitle the legal aid director to refuse legal aid in a case of treason. The court was informed that the ministry of justice's budget would not allow the ministry to fund the suspects' defence. About one month ago the ministry called on international and national donors to assist the government. The International Bar Association has since been in consultation with local associations are they are looking as possible alternatives, including fundraising. Acting Judge Levy said in the ruling that it was not the government's resources which had to be considered in the case. Instead, there was no evidence before the court that the resources of the state would not allow the granting of legal aid to the 128 suspects. Mnakapa pointed to the government's million-dollar bail-out recently of the ailing Air Namibia as an example that the government had funds at its disposal.