‘I don’t prosecute people, I prosecute crime’ - PG
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15 September 2017 Author   Sonja Smith
Advocate Martha Imalwa (MI) made history in 2004 when she became the first black and first woman in Namibia to hold the post of prosecutor general.
In this exclusive interview with the Windhoek Observer’s Sonja Smith (SS), Imalwa explains why there is no political interference in her job, her work with the ACC, her commitment to standing up for the law, and her fight against all odds over racism and scepticism about her capacity and abilities. Below is an excerpt of that interview:
SS:  You have been Namibia’s prosecutor general for the past 14 years. How has your journey been?
MI:  I always recall from the time I was appointed as the second prosecutor general in an independent Namibia and as the first black and also first woman in history to hold such a higher position in the legal fraternity.
When I started, in January 2004, the editor of the Windhoek Observer at the time was the late Hannes Smith, and I recall very well when one day he said to me that I am sitting in a hot seat. As years passed by, I realised what he told me was true.
My journey was tough given my history. At independence, some of us were the first black people to join the legal fraternity from exile. In my case, I was actually the very first black woman prosecutor who earned a promotion to the post of deputy prosecutor general, and it was not easy.
In 1998, my predecessor, the late Advocate Hans Heyman transferred me to the Windhoek High Court.  He did this to satisfy himself whether it was true that Imalwa can stand for what she believes in as a prosecutor. He informed me about that when I reported to his office on my first day in Windhoek.
As an example of the challenges I faced when I began working in Windhoek, I remember that at the high court, we normally had morning meetings for advocates. In these meetings, people would only speak Afrikaans, even though the official language of Namibia is English.  I don’t speak or understand Afrikaans and they knew it.  One day I stood up and said to my boss ‘is this meeting for all advocates in this office? He said yes.
Then I said, ‘but you are all communicating in a language that is foreign to some of us’ and he (Heyman) made the claim that all the people there didn’t know English, only Afrikaans.

I responded, ‘are you joking? Have any of you read the Namibian Constitution? The Constitution states that the official language of Namibia is English’. That moment I had even forgotten that I was speaking to my boss. I was so irritated.
I told him that I was not joking and that if it was true that none of the prosecutors could (or would) speak English, then I would take this matter up with the higher authorities. 
From that moment onwards, he started calling me ‘the patriot’, because I was straight forward. I am the type of person who believes in what I believe in. If I know what I am doing is not wrong, you have to convince me, otherwise I will resist you. 
After that meeting, the situation changed and people started speaking English only in those meetings.
After I assumed this post, Smith came up with an article in his paper that said: ‘look and see, the pale prosecutors with blonde hair will be leaving the prosecutor’s office one by one, and then, the PG’s office is going to fail’.  He wrote this because a black person had taken over the PG’s office. I never rebutted or acknowledged his negative (and wrong) prediction; I simply committed myself to work hard for justice in an independent Namibia. 
Initially, a number of prosecutors resigned, not only at the high court, but also at the magistrates’ offices countrywide.  They did not want to serve justice in a free Namibia; maybe they wanted to make the system fail or see what would happen without them.  Without a doubt, that was a tough situation as you need experienced people to assist you to run this office and serve the call of justice. But, while things were difficult, they were not impossible.
Those difficulties did not demoralise me. I took on the challenge I faced. Luckily, there were some of the most experienced prosecutors who are dedicated to their calling to serve the law and they did not reject the person who was heading the prosecution service in the country.  We all had a role to play in the justice system in Namibia, and they joined with me to do just that.
I decided to divide my advocates into sections and give them the responsibilities of the PG. I said to them this office is not for Imalwa, it is a prosecution team office and we need to work together. We should all own the office; I am not here to command you, but to lead you in our work together as a team. If the office fails to deliver, we fail together. That is what kept us going.
SS: What would you say are some of your successes and shortcomings as PG?
MI:  There are many proud achievements for this hardworking prosecutorial team.  To highlight only a few is a difficult choice. 
In 2006, I established specialised units to handle the work load.  The units are commercial, sexual and gender based violence, serious crimes where complex murder and robbery cases are being dealt with, anti-corruption, and in 2011, I added the asset forfeiture unit, a unit which is responsible for preserving and forfeiting assets which we regard as proceeds of crime.
I am proud of these and other major achievements for justice and the rule of law in Namibia.  This office does not outsource criminal work. The work is being done by this office; Namibia does its own work. That’s why I always tell my people (prosecutors) how proud I am and say to them that even if you are not respected, respect yourself for what you do. 
SS: You have three years to go before your second term comes to an end. Would you like to go for a third term?
MI:  My contract is not renewable after it comes to an end. Someone else has to take over to continue the work. I am a lawyer by profession, and lawyers don’t go sit and just eat ‘pap’ at the villages, so I will tell you what more of what I will be doing once the time comes.
SS: You have on numerous times referred back dockets to ACC for further investigation/clarity. Why does that happen; what is the problem?
MI: I don’t think there is a lack of skills at the ACC. You know no one is perfect at doing everything; even we sometimes, make mistakes.  So there will be mistakes by investigators, but we fix the errors and proceed as quickly as we can.
I consider prosecution to be an art. Because we are involved in the prosecution of crime, we know what evidence is required, we know what the offences are, and we know what is needed to take cases before the court. But the investigators may not always be of the same calibre as prosecutors; they know how to investigate, but they might not conclusively know what evidence is required for successful prosecution.
SS: The ACC has been accused of protecting leaders, or ‘the big fish’. Is this true?
MI: Their investigations are not bad, although the ACC needs some improvements, and this is not only for ACC, but all investigative agencies in the country. 
In my view, crime is changing and I think we, as a country, are losing a lot – we are not advancing our investigations and methods with the technology and mind-sets of the criminals. Most of the complex cases are not being thoroughly investigated because they require a different skill.
Corruption is very difficult and very sensitive, it is like using drugs, selling diamonds or buying them, it is normally done in secret…and I understand that it is very difficult for anyone to get information right away. But the way we investigate, also needs some changes in what we do.
SS: Namibia’s justice system has been accused of protecting ‘the big fish’. Do you think people are justified in saying that?
MI: Sometimes, people look at the accused’s position and not what they have done. Regarding the Ohangwena Governor, Usko Nghaamwa’s cases, I have seen them and I am aware of them. Some of those cases, we are protected in law because when I know the person, I can’t deal with their docket. I gave the cases to my senior advocates to deal with them, without me being involved.
SS: So the governor is your friend?
MI: Well, I have interacted with him when I was in charge of the northern regions, we used to sit in meetings and I was the head of prosecution in the regions.  It is appropriate to recuse yourself from the docket of a person who is an acquaintance in business or social settings.
His first case of culpable homicide was declined for prosecution and the second one is still not complete. The case involving the Minister of Safety and Security, Charles Namoloh, for culpable homicide and negligent driving, has been sent back to Ohangwena for further investigation. There was a preliminary decision made to prosecute him, then a presentation was made and new information emerged, and thereafter we referred it back for further investigations. You know we also have to be careful, we can be charged for malicious prosecution.  When new information arises, it must always be taken seriously.
The case involving the Minister of Basic Education and Culture, Katrina Hanse-Himarwa is still pending, I have requested statements. 
We belong to a profession; we have our integrity to protect. If there is evidence, we prosecute. If the public out there feels that they have reported this or that leader and the PG has declined to prosecute although there is evidence, they can apply for the  ‘nolle prosequi’ certificate (which requires me to re-evaluate the docket and give reasons why I made my decision and allowing private prosecution) and I will not hesitate. 
I don’t prosecute people, I prosecute crime. Therefore, if you are convinced that there is evidence in any matter, request for the certificate and launch your private prosecution.
The public should consider this:  should we just prosecute only because the other person is a leader? We must follow the evidence and act on where it leads.  You can only prosecute a person when the evidence indicates that this is a case I can prove. 
SS: On average, how many cases does your office handle per year and do you think you have the resources (personnel and financial) to address these cases?
MI: Our cases are divided among the courts we have in the country, we have districts courts and regional courts that form part of the magistrate’s court.
The magistrate’s courts around the country had 74,709 cases in 2016 that were handled.
The regional court had 2,114 cases. This includes new cases received in 2016 and those that were already on the court roll.
In the lower court, the new cases received are 19,058, while hold-over cases are 35, 651, it’s a large backlog. In these cases, you have those that are trial-ready and those where the investigation has not been concluded. Some are pending cases in the high court and regional courts.
There are other statistics as well and this information is available in our annual reports to Parliament or by asking at our public information offices.
You can see we have a huge backlog of old cases.
The problem we have is personnel. We have filled posts of 100 prosecutors the entire country. We don’t have enough personnel, the bench also does not have enough personnel, and even the investigators are not enough.  Nevertheless, we must cope, even with the lack of personnel – justice demands this.
There are lawyers in Namibia with no posts, even though we have great need for them.  But, now, because of the economic situation in the country, we cannot fill any vacancies. We hope that there will be improvements by next year.
 
 
 
 
 
 

WINDHOEK OBSERVER

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