Iuze Mukube
Windhoek High Court Judge Claudia Claasen last Thursday recused herself from the trial of a man accused of shooting his colleague point-blank to the head with a gun while transporting a cash-transit vehicle back to Windhoek.
Theodor Shipanga, the accused, faces a charge of murder, robbery with aggravating circumstances and defeating and obstructing the course of justice.
The basis of the recusal by the judge is that she was presented with evidence not yet before court in a psychiatric report of the accused.
The information that was included into the report by a State psychiatrist did not comply with the compilation as required by sections of the Criminal Procedure Act.
Secondly, Claasen had no prior knowledge of the information included in the report as it was not presented in court yet, which presented conflictions to the judge.
“The revelation of evidence from the State’s case, which had not been presented in the trial, caused an ethical dilemma for the court which, as a trial judge, is supposed to approach the trial with an impartial and unencumbered mind,” she stated.
She added that the information caused a rather unfortunate and uncommon situation and as a consequence, it compromised her position as she is now privy to facts which are still in dispute.
“Being privy to the mountain of evidence has caused a great level of discomfort to the court to continue with the trial and it may have a bearing on the reasonable suspicion of bias or impartiality of the trial court.”
The accused’s position when the judge disclosed the situation to him is that it will not be fair to him if she was to continue presiding over the matter.
It was against this background that the judge recused herself from the matter.
What remains for consideration is the psychiatric report which has prompted the recusal of this court, stated Claasen before ordering that the report be referred back to be compiled correctly with the provisions of section 79(4) of the CPA. The matter was referred to the mentions roll to today.
The report was requested on account that “continuous illogical and belligerent ranting was observed from the accused during most of the court sessions.”
In various court sessions, Shipanga had accused the judge of infringing on his constitutional rights for proceeding with the matter without his mental evaluation being on the record.
After the report was available, he claimed that the report was done without his consent, thereby violating his rights, and that he rejected the report in its entirety.