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Obituary to knowledge: Namibia high court sets fire to justice

As any right-thinking person should be, I am left reeling and in a state of shock and disbelief over two unrelated events that have unfolded over the last few days that have both dealt extensive and even irreversible damage to the humanities, with each occurring less than 24 hours apart from one other.

The University of Cape Town’s library has been laid to waste by an out-of-control fire, incinerating a repository of irretrievable archives and knowledge, especially of indigenous peoples. Unique material, much of which was yet to be studied, used for the enrichment and advancement of our understanding of our own human lore and imaginative and cultural evolution — that has been passed down generationally for millennia — has disappeared from the face of the Earth. The loss to our heritage and context is immeasurable.

A day later, on 19 April, the high court in Namibia, similarly lit a match to a family when it failed to apply the law in favour of the best interests of children, the interests of justice and in the interests of the vulnerable human beings whose lives fall within its jurisdiction for protection and recourse against the abuse of power by the state as it is empowered and compelled to do by legislation and the Constitution of the Republic of Namibia. 

The court on Monday denied an urgent application by the applicants, Philip Lühl, a Namibian citizen, and his husband Guillermo Delgado to compel the minister of home affairs to issue emergency travel documents to their two babies who were born through surrogacy in South Africa. Namibia does not recognise their South African birth certificates (nor the marriage of their parents), which places it in breach of international law as well the bilateral obligations of reciprocity between States. 

The court, through a listing of various evasive arguments, held that such an order would amount to “judicial overreach”, which is what would occur when the judicial branch of government interferes in another branch of government’s purview, thereby violating the doctrine of the separation of powers between the different divisions of government, or organs of state. 

Accordingly Lühl and his daughters have been prohibited from entering Namibia and he is unable to reunite with his husband and two-year-old son who await them in Windhoek. 

The ineptly applied doctrine of the separation of powers has resulted in the gross injustice of the separation of a family. A particularly cruel consequence that flows from this injustice is that the babies – twin girls – were born 5 weeks ago and their their rights to the parental care of both their loving parents, let alone their loving parents’ desire to be together as a family with their new born twins, remain indefinitely suspended for as long as this injustice persists. The separation of powers has been abused to give effect to the separation of parents.

The high court of Namibia is the upper guardian of minor children, whose interests are meant to be of paramount concern. It has failed to fulfil its obligations under the law and to take cognisance of and give expression to its powers by granting the relief sought to a family in crisis, prevaricating and citing justifications that could easily have been made conditional to its judgment instead of being fatal to the application. 

It has failed to fulfill the vital role it serves within a healthy democracy to act as a necessary check on the balance of powers between organs of state; to prevent the abuse of power which the ministry of home affairs is already inured to. This failure of the court to act by blindly deferring to the executive raises serious doubts about its independence. This inaction can only be inferred to be one that safeguards the court’s own interests, rendering it the upper guardian of itself instead of that of children. 

This failure to act not only subverts the interests of justice but actively jeopardises the interests of Namibia’s children and its citizens, and is an abuse of power in the form of the non-use of its power. 

This display of “judicial underreach” has brought the high court as well as the functioning of the judiciary of Namibia to international attention and until this error in judgment is corrected through the competent and independent interpretation and application of the law, there can be no doubt that justice through the judiciary is placed beyond the reach of Namibians. 

On the contrary, the “judicial overreach” that the court went to such negligent lengths to avoid in its judgment has actually occurred. The judiciary has reached over the interests of justice, the interests of children, and of the very rule of law in order to put itself first. This is a travesty of justice. 

The images circulating in the media of the smouldering remains of the UCT library are by apt extension an accurate representation of the integrity and intellectual calibre of one of the highest public offices in the country. The high court of Namibia has used the torch it bore to set itself on fire instead of using it to shine a light where it was in most dire need of being shone. 

This act of arson against itself reveals a derelict and emaciated mound of inert matter where once our ideals as a species, Homo Sapiens (wise human), had been housed — within the learned minds of the torchbearers of democracy, the justices of our courts.   

If ever I had the occasion and motivation to be so deeply moved to write an obituary to knowledge, the occasion would be now and the motivation would be this. As a nation first and secondary as a species, these senseless tragedies should place us all in a state of mourning for the loss to and of our humanity as the interests of justice continue to burn.

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Michael Smolinsky
Michael Smolinsky has been a campaigner for marriage equality in South Africa and Namibia and has a keen interest in matters of social justice and human rights

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