Prosecutor General Martha Imalwa says the constitutionality challenge against sections of the Combating of Rape Act by a Cuban doctor accused of raping a female colleague has no merit.
Rape accused Dr Pedro Luis Viera (57) had filed an application with the High Court, seeking an order declaring the section that contains the words “but is not limited to” as unconstitutional, invalid, and of no force in law and effect. He further wants the court to struck the disputed wording from the Act.
According to him, Section 2 (2) of the Act purports to provide the definition of coercive circumstances, which makes provision for the words “but it is not limited to”, which is vague and unclear.
However, Imalwa in her replying affidavit said the Act is to combat rape in all its different manifestations, displaying itself as an abuse of power, through sex, to degrade and violate the victim’s dignity.
“In order to effectively combat the scourge of rape in our society, the legislature deemed it fit to provide for a broad and non-exhaustive list of what constitutes cohesive circumstances,” explained Imalwa.
She added a closed list of cohesive circumstances that risks perpetrators evading punishment, thus the court has been given the power to determine, on a case-by-case basis, whether a specific fact and circumstance amount to coercive circumstances within the context of the
law.
“It should be abundantly clear that I hold the view that the application and especially the challenge to Section 2(2) is wholly without merit and should be dismissed,” said Imalwa.
Viera, who is currently on a N$10 000 bail bond, is yet to go on trial on two counts of rape, a count of assault by threat, theft and malicious damage to property.
The prosecution is alleging that on 5 December 2018, Viera raped a fellow doctor with whom he was working in
Windhoek.
According to the police, the victim informed them that Viera followed her to the doctor’s quarters, where he questioned her about the reasons why she refused to have a relationship with him.
Thereafter, Viera sexually assaulted the victim and instructed her to bathe.
His constitutionality challenge will be heard on 28 June 2022 as ordered yesterday by Judge Naomi Shivute.
-mamakali@nepc.com.na