Windhoek
High Court. Judge Shafimana Uitele yesterday reserved his ruling on an application the Minister of Safety and Security, the Prosecutor General and the government brought for the dismissal of a claim for more than N$36 million.
Rodwell Kasika Mukendwa, 75, is suing the government for “wrongful and unlawful and negligent violation or infringement of the Constitutional rights of the plaintiff, which were perpetrated by the defendants or their employees.”
According to the particulars of claim submitted by Mukendwa’s lawyer, Profysen Muluti, his client’s fundamental constitutional rights guaranteed under articles 7, 8, 11, 12, 13, 16, 19 and 21 were infringed upon and his trial was unduly delayed, contrary to Article 12 of the Constitution, which guarantees a trial within a reasonable period.
He was acquitted on charges of high treason 13 years after he was first arrested on August 26, 1999 – about three weeks after an unsuccessful attempt to secede then Caprivi Region (now Zambezi) from the rest of Namibia.
His legal team, led by Andrew Corbett SC, says the prosecution team knew for seven years since November, 2005 that they had no evidence against Mukendwa, but continued to incarcerate him until his unopposed release on a Section 174 application in August 2012, 13 years after his arrest.
Mukendwa wants the respondents to compensate him for loss of income and pain and suffering. He listed his losses as lost of income from his employment as a foreman at Namib Mills in Katima Mulilo with a monthly salary of N$2 160, with an annual 10% increment.
He was also involved in farming that earned him about N$571 000 and it is claimed he further suffered damages in the amount of N$23.6-million due to humiliation and degradation, injury to his self-esteem and reputation, contumelia (rough treatment), deprivation of his freedom (including freedom of movement), discomfort and inconvenience suffered.
Mukendwa also claimed N$700 000 for loss off his pension, plus a further N$340 000 for loss of income due to his continued
incarceration, as well as loss of income from his farming activities with a combined value of N$11.9 million.
All total Mukendwa claims he suffered losses of N$36,6 million as a result of his “unlawful arrest and malicious prosecution”.
The government, represented by Advocate Nassier Cassim SC, assisted by Sisa Namandje instructed by the Government Attorney opposes the lawsuit and claims Mukendwa was arrested and detained on information obtained that he was involved in the planning of the attack and transported rebels.
Cassim said the plaintiff failed to prove his detention was the result of malicious prosecution. He said “no iota of evidence” was produced during the trial to prove this, maintaining that the State had no obligation to assist the plaintiff, as he was legally represented and it was their responsibility to apply for his release on a stay of prosecution application.
Corbett countered that the State must have known after November, 2005 that they have no evidence against Mukendwa and should have secure his release, but failed to do so and instead caused him to stay seven years in prison for no reason at all, except sheer malice.
On the claim of an undue delay in commencing with the trial, the defendants claim the trial commenced within a reasonable time and the delays were caused by unforeseen circumstances, such as the death of one of the prosecuting team and critical injuries to another two prosecutors due to a motor vehicle accident ten years ago, as well as accidents in which witnesses and police officers involved in the investigation of the case were killed or injured, and numerous applications from both the defence and the prosecution during the trial, which required a considerable amount of time to be dealt with.
Judge Uitele said he will deliver his ruling on September 13 and in case of an order that the respondents must answer the claims, a date will be set for the continuation of the trail.