‘THE UNIQUE CONSTITUTIONAL POSITION OF THE PROSECUTOR-GENERAL OF NAMIBIA, ‘AND “THE EFFECT OF THE INDEPENDENCE OF THE OFFICE (ON THE FUNCTIONING OF THE PROSECUTING AUTHORITY IN RELATIONSHIP WITH THE (MINISTRY OF JUSTICE AND THE ATTORNEY-GENERAL oy JOHANNES NICOLAAS HORN UNIVERSITY OF SOUTH AFRICA MARCH 2000 “THE UNIQUE CONSTITUTIONAL POSITION OF THE PROSECUTOR-GENERAL (OF NAMIGIA AND THE EFFECT OF THE INDEPENDENCE OF THE OFFICE ON ‘THE FUNCTIONING OF THE PROSECUTING AUTHORITY IN RELATIONSHIP. [WITH THE MINISTRY OF JUSTICE AND THE ATTORNEY-GENERAL bv JOHANNES NICOLAAS HORN F the requirement For the degree oF submitted in part fuihimer (MASTER OF LAWS at tne UNIVERSITY OF SOUTH AFRICA ‘SUPERVISOR: PROF. D VAN WYK MARCH 2000cunoter me [ABRIEF HISTORY OF THE INDEPENDENCE OF THE [NAMIBIAN INDEPENDENCE AND THE NEW ‘THE COURTS’ APPROACH OF 2.2. THE COURTS AND THE EXISTING LAWS 74 Background tothe confit 172 The cate ofthe Attomey.ceners 7.3. The Argument ofthe Prosecutor-cenerat ‘Te 1yooMeNT ‘THE ONGOING ISSUE OF INDEPENDENCE: PROSECUTOR-CENERAL PUBLIC SERVANTS? [ARIEF COMPARISON BETWEEN SOUTH AFRICA etLocue Pace 2 2 Ps 1A BRIEF WISTORY OF THE INDEPENDENCE OF THE PROSECUTING AUTHORITY IN NAMI When South africa took over the acministration oF South West Arica In 4978 the prevaing south african common law was made appiicabe in Soutn west africa From then on the greatest majrity of soutn african ‘acts were also made appricable to Soutn West africa In 1919 South rca «estabished tnedan Court of soutn west aficaas tnejudicial authority for territory, with te Appelate Bvsion of te Supreme Court oF south ‘Africa as tne Final Court of Appeal. Carpenter: 1981, 23, ror tothe formation of tne Union of South aftca, the prosecution _autnorty, atleast nTransuaal, vestee absolute inthe attomney-Cenera (Gatingham v Attorney-ceneral and others 1909 TS 572 on 573), wien the formation ofthe Union of Sautn Arica, section 1390 the South africa Act of 1909 confirms the independence ofthe prosecuting authorities. Prosecutions in South west africa were inthe nanas ofthe Attorney: ‘Ceneralof soutn west africa, Lkenis South African counterpart the south ‘West african attorney General was Independent and free from poll ‘oversight The Administrator oF South West Afrcalssues Prociamation Sof 1918 tomake the criminal Procedure and Evidence Act of 1917 effective in ‘te Protectorate of south West africa, with minor special concitions The Administrators Proclamation 20 of 1819 repealed Proclamation 50f 1918, but confirmed tne indepenaence of the Attorney-General. Only the tte was changes to Crown Prosecutor. ‘Thus, initia ene rosecuting authorities oth In Soutn africa anc South west africa nad absolute autonomy and were free From political ‘control. However, n 1826 tne ways parted. The south African criminal and ‘Magistrates CourtsProcedureAmenament act 39of f26amendedsection189 of the South Arica Act and sections 71 and of the Crimi rocecure and evidence Ret of 1817. Seetons 1 and 18 paced the _ttorney-Generas unde he controtana drecvons ofthe minster. ‘The 826 act as not made applicable in soucn Wes afi ano the attorney General of South west remsines Ingependent and fee oF Inaepandence of the Prosecutorceneral the Criminal Proceaure ‘orainance,orenance so 1985 repentee Procamation 500 855. St, ‘ne Soutn west AEnan epssation ald not folow tre South Arcan ‘ame of tne, but mainte the independence of the attorney ‘cones. Insouth africa te tren of potical contol was Hm estabshed by the Cenaral Law Rmengment Act, REE A OF 7955. Te prosacuiNg autnonty became part of tne autnorty ara power ofthe minister of Juste The minster had ene legal oh to tke over the role ofthe ttorneycenera and slistor generals at his own aicrotion. The 1855 foerultion found its way into the criminal Pracedue Act of 855, wen ‘Te consequence ofa these Gevelopments was that te atnorty ‘ne power of te atorney-ceneal i south West fica was much wer ‘an tose of ris counterparts in south africa (on 22 Jay 1977 the Attorney ceneal of the tertory fost ns ‘autonomy when the new criminal Proceaure Act 51 OF 877 CPA, was ‘mae appicane in Soutn West Arica. section 2) of te aia Act mado 0 mescaceresoenesnat, sujet to tne ays retng to {ne puote sence, appent n espect of te area of unsleton of €2cn prowncia auson an attorey- @ @ ‘General wh, on benai ofthe state ana subject cote rovisions of eis act (@_ shat nave autnonty to prosecute, n tne name ot ‘the Repubic in criminal proceeaings in any court In the area in respect of wnicn ne nas been appointed any person n respect of any otencein regard to which any court inthe saa area nas Junsciction: ana (may perform al functions rating to tne ‘exercise oF uch authority. ‘he autnonty conferred upon an Attorney ceneral ‘under suesection (1) shal include the authorty to prosecute in any court any appeal asing from any Criminal proceedings within tne area of jursaction of te Attrmey-cenera concerned. ‘The winter may, subject to the faws relating to the pubic service, In respect of each are for which ant ‘Atomey-General nas Been appointed, appoint one or _more deputy attorneys genera, wo may, subject r0 ‘the contro! ana atretions of tne Attorney-cenerat concerned, do anytning which may awtuly be done by the attorney conera. Whenever i becomes necessary that an acting ‘attorney-ceneral be appointed, the Minster may _anpoine any competent officer i the pubic service to ‘act as Attorney General for the period For wnich such appointment may be necessary. ‘an Attorney-General shat exercise ns auttorty and _eroom nis functions under this At or under anyoter