WINDHOEK – A rape conviction and an 35-year prison sentence imposed on two young men from the Zambezi Region was set aside in the Windhoek High Court on appeal this week.
The two, Nalumino Hastin Nawa and Sibuku Sibuku were convicted in September 2006 for the rape of a female below the age of 14, while the two were only three years older. Judge President Petrus Damaseb and Judge Naomi Shivute agreed that there are too many unexplained questions that throw doubt on the reliability of the two main state witnesses, the complainant and her grandfather. According to the Judge President who wrote the judgment, the trial court if it properly directed itself, could not reasonably have come to the conclusion that the complainant’s allegations of rape were proved beyond a reasonable doubt.
However, the Judge President found there was never any mention of either the age of the complainant or that of the accused persons. According to the judgment it is beyond comprehension how the accused could have indicated to the magistrate that they understood the charges. “It is anyone’s guess how these confusing and misleading charges were translated into the native tongue of the accused, even less if they understood it,” the judges concluded. According to the judgment the charges were framed to mislead. “From reading the charges one cannot tell whether the accused knew they were facing a possible minimum sentence of 10 years or a possible minimum 15 years sentence,” the judges said. “The respective charges start off by giving the impression that the date when the offence occurred is unknown, only to proceed to name a specific date (19 September 2006) on which the alleged offence occurred. The charge next lulls the accused into believing that he had sex with a girl of a stated age and that he was of a specified age at the time the alleged offence occurred – only to fail to give the ages of either the alleged victim or the accused – while at the same time suggesting that the age of the complainant and those of the accused are material to the outcome of the case,” the judges ruled. Judge President Damaseb further opined that he would have squashed the convictions and sentences already on account of the ‘bad’ charges and the trial court’s failure to assist the accused to properly understand the charges they faced and the potential defences open to them. He says it is the duty of a presiding officer to assist an undefended accused whenever he needs assistance in the presentation of his or her case and should protect the accused from being cross-examined unfairly. “Cross-examination is a right under our adversarial process, a right owed to both pauper and prince,” said Judge President Damaseb, adding, “given that it is a right, where an accused is unrepresented, it imposes an obligation on the presiding officer to assist the accused to exercise it meaningfully. The Judge President further stressed that the role of cross-examination is so important that it cannot be downplayed or treated in a perfunctory manner. The two accused were represented by Advocate Raymond Heathcote SC.
By Roland Routh