Two brothers sentenced to life imprisonment in September 1998 for murder, robbery with aggravating circumstances and housebreaking with intent to steal and theft, are now asking the Windhoek High Court to release them on parole.
McKenzie and Wynand Adams want the High Court to order their release on full parole after having spent the last 23 years behind bars.
They argue that they have fulfilled all the requirements of parole to be heard and that there is an undue delay and/or deliberate protraction in their release on parole. They further want the court to order the minister of safety and security, the commissioner general of the Namibia Correctional Service ( NCS), the National Release Board, the officer in charge at the Windhoek Correctional Facility (WCF), the chairperson of the Institutional Committee at the WCF, the unit manager at Unit 2 at WCF and the case management officer assigned to them as applicants not to subject them to further arbitrary detention, in conflict with Article 11 of the Namibian Constitution. McKenzie argued that they were sentenced under the provisions of the 1959 Prison Act, which states that an inmate sentenced to life is eligible for parole after serving 10 years. However, he said, the prison authorities failed to place him and his fellow applicant on parole, resulting in the protraction of their detention.
After serving 23 years in detention, they have attended all the required risk intervention programmes at the WCF. But it now seems the NCS has turned a blind eye to the issue of their release from incarceration after having met all the requirements of parole, in that there is nothing done in terms of their release on parole as per requirements of the law. He continued that it seems that the NCS is determined to see them serve the full 25 years contained in the 2012 Act, which repealed the 1959 and 1998 Acts. As the 1998 Act made provision for parole for lifers, the provisions of the 1959 Act were in operation and applicable to them.
McKenzie stated that he and his co-applicant are gravely aggrieved by the inordinate injustice precipitated through the protraction of their release, and they have no hope of ever being released, as those responsible for their release are protracting.
Mkhululi Khupe, who is representing the respondents on instruction from the attorney general, argued that the application is premature, as they will become eligible for release on 10 September 2025. He submitted in court papers that the applicants were sentenced under the 1998 Act, and are not eligible for parole under the 1959 Act.
Furthermore, he said, the applicants are not eligible for parole under the 1998 Act as that Act excluded parole for offenders sentenced for scheduled offences for which they were convicted and sentenced.
“Section 97 (8) of the 1998 Act specifically excluded the applicants and similarly-placed offenders to an entitlement to a release on parole, except for juvenile offenders,” Khupe stated. However, he said the 2012 Act provided the applicants with the right to parole, but after serving 25 years of their life sentence. He then asked the court to dismiss the application, with no order as to costs.
The case will return to court on 16 November for a status hearing on the Legal Aid application for the applicants, as the lawyer appointed for them is conflicted. Windhoek High Court Judge Orben Sibeya presided.
– rrouth@nepc.com.na