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Tuesday 20 August 2019
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Who is bail-worthy?

On May 19 in Katutura’s Ombili area in a road rage altercation, Commissioner for Refugees Likius Valombola shot student activist Helao Ndjaba twice on the forehead, resulting in Ndjaba fighting for his life in the Intensive Care Unit for a few days. On Monday, 28 June Ndjaba succumbed to his injuries caused at the hand of Valombola. Valombola, after fleeing the scene was arrested and later released. He was rearrested on 23 in Opuwo following an outcry by both the public and the family. Upon handing down bail, Magistrate Alweendo stated that no strong evidence existed to warrant Valombola’s continued incarceration and granted bail at N$ 15 000.
Sakeus Kablou Amateta was recently gunned down by the Namibian Police for allegedly resisting arrest. The Police stated that the deceased was considered armed and dangerous as he had numerous cases pending such as 9 cases of armed robbery, 2 cases of attempted murder and one case of housebreak. Still, Amateta was granted bail. This and many other cases provide credence to the public’s complaints where first-time and habitual offenders are granted bail. Namibians continue to ask who truly deserves bail and whether merits are followed to grant those implicated with crime, bail.
The outrage has been brewing following many such examples whereby alleged perpetrators of crime whether for rape, murder or assault are released on bail by the courts. In many cases, the out-on-bail criminals commit the same crime that got them arrested in the first place.
Whenever accused persons are hauled before court for their first appearance, members of the affected communities attend the proceedings to show their anger and frustration with messages of support for the victim, often with placards showing disgust directed at the accused, like: ‘no bail,’ ‘sies man’ and like recently ‘#Justice For Helao.’
What is even more infuriating is how cases where vulnerable people are involved are treated harshly by the judiciary. Last year in Rundu, Natalia Ngoma, 34, was arrested for stealing oranges worth N$6 which she gave to her baby child of less than a year old to eat. Ngoma escaped custody and was later rearrested. Contrastingly, unlike a seemingly connected Valombola, Ngoma was denied bail.
Recently, Fisheries and Marine Resources Deputy Sylvia Makgone in Parliament took a swipe at the system saying it is currently failing society and those who are responsible should perhaps come out to educate society on how things work.
“All I know is that society is frustrated with habitual criminals getting arrested today and going out on bail tomorrow. These are things society does not understand and these need to be addressed. If it is not addressed, it will just be a matter of time before we see society taking the law into their own hands,” she said.
It is paramount that magistrates have a thorough knowledge and understanding of all the legal principles and considerations involved in a bail application. This is because magistrates form the interface through which they engage with the public.
A vast majority of cases are dealt with in the Magistrates’ Courts and it is at that level that the public come into contact with the judicial system for the first time. As such, citizens’ trust in the judicial system becomes the only thing left.
“We can take the recent case of the student who was shot and died. There should be some sense of sensitivity when it comes to some of these cases.
Just as the accused has the right to a fair trial, the other person also had the right to life. This is a person’s life we are talking about and we need to respect the family mourning their loved one. You do not want to have lost your beloved and have the accused walking free. It may seem too emotional but many people will only understand when they found themselves in the situation,” said Makgone.
At a workshop for magistrates particularly on the bail subject held last year in Windhoek, Chief Justice Peter Shivute expressed concern on the matter saying there is a need to strike a balance. At the same time, Shivute stresses the importance of having the citizens faith in the judicial system restored.
The Namibian Constitution makes provision for a right to a fair trial as enshrined in Article 12.  This is a comprehensive right which includes the right or opportunity to prepare for the trial.  It also includes the right not to be punished before being convicted by a court of law. The right to personal liberty is also protected in terms of Article 7 of the Namibian Constitution.
“The right to a fair trial must be considered together with the right to liberty. An accused person who does not pose a danger to the public or the administration of justice should not be incarcerated unnecessarily before conviction. Such an accused person must be afforded the opportunity, as much as possible, to mobilise resources to prepare for the trial, including engaging a legal practitioner of his or her choice,” highlighted Shivute.
The reality in our country is that securing attendance at Court, in criminal cases at the moment, is largely done through arrest and pre-trial detention, Shivute highlighted. He said this is done to ensure that the accused person indeed stands trial and does not abscond.
The other consideration is that the accused does not interfere with witnesses or pose a danger to the society at large. Bail is thus a procedural device to balance the competing rights.
He further adds; “pre-trial incarceration may amount to punishment before conviction, even if it is not intended to punish.
Therefore the norm is that an accused person needs to enjoy the right to liberty, unless that cannot be done because of the dangers of absconding, interference with witnesses or the interests of society, before he or she is convicted.”
Shivute said due to the fact that many in society are not familiar with the finer points of the law, coupled with the fact that courts are bound by legal principles and rules of law, sight is often lost of the basic purposes of bail namely, that where it is not necessary to keep the accused detained pending finalisation of his or her case, he or she may be released on bail.
In determining whether or not to grant bail, the court is required to balance competing interests. On the one hand, the court must not unnecessarily keep an accused in detention who might later be found not guilty for lack of evidence, while on the other hand, due consideration must be given to the risk of harm posed to the community if such person were to be released, or if he or she reoffends or fails to appear before the court if not held in custody.
“The court thus has to balance the individual liberties of the accused against the interests of the victim, the effectiveness of the administration of justice, and the safety of the wider public,” Shivute continued.
Be that as it may, while society may not have a glimpse of the often abstract considerations taken to account in the granting or denial of bail to the accused, Shivute maintained that the balance must seek to realize the rights of both parties in a case.
“Our responsibility towards society is not only to protect the rights of the accused, but we have a broad responsibility to ensure that the rights of the victim are also safeguarded and that the trust in the judicial system is maintained. This will ensure that people are not taking the law into their own hands.”

 

 

2018 – Commissioner for Refugees Likius Valombola charged with murder over a shooting incident that claimed the life of Windhoek resident Helao Ndjaba was granted bail, at least in the interim, of N$15 000.

2018 – Jamee Kahuure allegedly fatally stabs and kills her friend Denice Toudy Willemse after they had an argument. Appeared in the Windhoek Magistrate’s Court in Katutura before Magistrate Bernedine Kubersky and was denied bail.

2017 – Rundu-Natalia Ngoma, 34, who was re-arrested last Thursday for escaping from lawful custody after she was taken in for stealing orange juice worth N$6, which she gave her baby of less than a year old to drink in Shoprite was denied bail in the Rundu Magistrate Court on Monday.

2014 – The former stock theft unit commander of the Namibian Police in the Erongo Region, Warrant-Officer Desmond Kamoruao, in the Karibib Magistrate’s Court  on a charge of  stock theft and  defeating the course of justice. He was denied bail.




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