WINDHOEK – The call to declare a state of emergency over crimes of passion holds no water, so is the mounting call for the death penalty. “No court or tribunal has the power to impose a sentence of death. The Constitution further prohibits executions in Namibia,” said President Hifikepunye Pohamba referring to Article 6 of the Namibian Constitution, that says the right to life shall be respected and protected.
Regarding a state of emergency, constitutional expert Professor Nico Horn says imposing a state of emergency would be out of place as a state of emergency applies to matters of national disaster, where the state of national defence is at stake or where there is a public emergency threatening the life of a nation.
“To institute a state of emergency, the rule must apply generally to the safety, future and stability of a nation, which in the case of gender-based violence, it is a threat to moral values which do not form part of Article 26,” said Horn who is the Dean of the Faculty of Law at the University of Namibia.
He explained that Article 26 does not apply to “issues of moral decay as they are not cases of a political nature or would not bring chaos to threaten the life of a nation”.
The National Council’s women’s caucus and the Women’s Action for Development (WAD) have called on the President to declare a state of emergency in respect of gender-based violence.
Horn said that certain amendments to the Criminal Procedure Act could be passed to bring in stiffer sentences or no bail for certain offences.
The law professor mentioned as an example cases where women report GBV cases or ask for restraining orders against their partners only to withdraw the case and go back to the abusive partner. “You cannot make a law that they should not go back to them (abusive partners),” he said, adding that it is a matter of policing and education.
Reacting to WAD’s demand to make the unavailability of police vehicles pronounced a crime, Horn said that the complainants could sue the State, but the burden of proof lies with them to prove that the police had bad intentions.
He also ruled out WAD’s insistence that perpetrators of GBV be subjected to hard labour as that boils down to the provisions of Article 8 of the Namibian Constitution where the dignity of all persons shall be inviolable (not changeable) and guaranteed.
By Magreth Nunuhe