- April 18, 2022
- |Law Everyday
THE ROLE OF PUBLIC INTEREST IN THE ADMINISTRATION OF JUSTICE
A law student once quipped, ‘if I do not know the answer to a question, my answer is always that it is, or not, in the public interest.’ It seems that ‘public interest’ or ‘public opinion’ solved every question that required him to ponder about, and he would walk out of the exam room with peace of mind. ‘Public interest/opinion’ is one of the most used phrases in the legal world, but the meaning thereof is the most elusive. But those two words play a significant role in the administration of justice in that your rights may be reinforced or limited by their application.
Public interest is used thirteen times in the Constitution, the following being relevant:
1. A person or their home may be searched if such search is justified in the public interest – Article 13(2)(b);
2. The State may expropriate property in the public interest – Article 16(2);
3. Rights to vote and to be elected to public office may only be abrogated, suspended on impugned upon on grounds of public interest – Article 17(3);
4. Children may be allowed to leave school on considerations pertaining to public interest – Article 20(3);
5. Where persons are detained by virtue of a state of emergency or state of national defense, they shall be afforded opportunity to make representations as may be desirable or expedient in the circumstances, having regard to public interest;
6. After a President has left office, a civil or criminal Court shall only have jurisdiction to entertain proceedings against him or her if parliament resolves that any such proceedings are justified in the public interest – Article 31(3);
Public interest litigation is court action that seeks to secure human and constitutional rights, particularly where the rights violations affect socio-economically disadvantaged or marginalized individuals or groups. It can be used to challenge legislation, arbitrary state action, or failures or omissions on the part of the state to meet obligations such as the provision of adequate health care and education. Public interest litigation has also been used to address actions by private individuals that have public implications, such as ethnic or gender-based discrimination. It often takes place in conjunction with broader social and political actions, such as public
protests, lobbying, or other forms of advocacy (Legal Assistance Center, Pro Bono Publication 68). In the Frank case (2001), the Supreme Court referred to what was said in State v Vries (1996) in regard to public opinion thus:
“In my respectful view the value of public opinion will differ from case to case, from fundamental right to fundamental right and from issue to issue. In some cases, public opinion should receive very little weight, in others it should receive considerable weight. It is not a question of substituting public opinion for that of the Court. It is the Courts that will always evaluate the public opinion. The Court will decide whether the purported public opinion is an informed opinion based on reason and true facts; whether it is artificially induced or instigated by agitators seeking a political power base; whether it constitutes a mere ‘amorphous ebb and flow of public opinion’ or whether it points to a permanent trend, a change in the structure and culture of society…The Court therefore is not deprived of its role to take the final decision whether or not public opinion, as in the case of other sources, constitutes objective evidence of community values…”
As per Dausab v State (2009), there should be a meaningful and active inquiry into the considerations of public interest. In S v Katale (2 September 2022), the High Court stated that ‘the persistent demand for more severe sentences to be imposed on offenders for specific crimes should not blind a Court. Public expectation is not synonymous with the public interest. Courts serve the interests of society and should not be insensitive to or ignorant of general feelings and expectations, but court may not blindly adhere to that.’
In Nghipunya v The Minister of Justice (14 October 2022) these words used in the Criminal Procedure Act were subjected to a constitutional challenge, and this led to a split judgment. In this case, the accused applied for an order declaring section 61 of the Criminal Procedure Act, 51 of 1977 as amended by section 3 of the Criminal Procedure Amendment Act, 5 of 1991 unconstitutional, on the grounds that the words ‘in the interest of the public’ and ‘the administration of justice’ are unintelligible and incapable of being properly interpreted, resulting in an accused who applies for bail having to face an insurmountable hurdle in order to be granted bail. It was argued that the provision was void for vagueness and impermissibly infringed on the applicant’s constitutional rights to liberty, to a fair trial, and to be presumed innocent.
The majority dismissed the application while the minority upheld it. In dismissing the application, the majority held that the words ‘in the interest of the public’ are not easy to interpret but Namibian jurisprudence has provided guidelines that can be followed. The minority on the other hand, held that the words ‘the interests of the public’ are not defined and are vague as not to give sufficient guidance for legal debate, therefore rendering them unconstitutional for vagueness. Even though the majority rule applied in this case, the debate which I believe has been brewing for a long time rage on. What really constitutes public interest is the question. According to Konga (2019), there is no settled definition of what constitutes public interest in Namibia. I think public interest means a lot of things. What is clear is that public interest plays a significant role in the administration of justice and the Courts have provided some guidelines. But is it enough? Because the law must be clear and devoid of ambiguity, lest it is unconstitutional for vagueness as per Masuku J (minority) in Nghipunya.
Fedden Mainga Mukwata – Legal Pundit