Access to Justice and Legal Representation
Costs of litigation, especially in civil suits, are relatively high in Namibia. In order to have a successful civil suit, one has to have a private lawyer – in itself an expensive exercise. In assistance to litigants the courts have prescribed fees which may be recovered by the successful party.
Less privileged litigants may also apply for legal aid in terms of the Legal Aid Act, though such relief will only be given if a litigant earns a minimal income or is without any income. As a result we have the Legal Assistance Centre who renders assistance to litigants, free of charge in constitutional cases and cases of public interest. This Centre relies on donations and sponsors . The University of Namibia also has a Legal Aid Clinic which renders services free of charge and relies heavily on private legal practitioners who assist as part of their social responsibility.
In criminal cases, the State (indirectly the complainant) is represented by a public prosecutor who is paid by government. In the case of the accused, however, s/he has the right (according to Article 12(1) (e)) to be defended by a legal practitioner of his/her choice . However, this is not possible for accused persons who are less privileged and cannot afford a legal practitioner of their choice. Therefore, Article 95 of the Constitution generally provides for the promotion of the welfare of the people. Article 95(h) specifically provides for a –
Ø … 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 binding effect of the provisions of Article 95 was one of the issues that had to be determined by the Supreme Court of Namibia in the case of Government of the Republic of Namibia & Others v Mwilima & all other Accused in the Caprivi Treason Trial 2002 NR 235 (SC). The Supreme Court ruled that in so far as the services impinged on the fundamental rights of the individual as enshrined under Chapter 3 of the Constitution, the government was under a constitutional obligation to provide such services and the judiciary had the obligation to enforce and protect the fundamental rights of the individual as enshrined in the Constitution. In the case of State v Kau & Others 1995 NR 1 (SC), the Supreme Court ruled that the failure to inform appellants of their rights to legal representation is an irregularity.
Individuals do have the right to represent themselves in court.