WINDHOEK – Julius Dausab, the truck driver from Otjiwarongo who faces a double murder charge, overcame a big hurdle in his quest for redemption in the Windhoek High Court yesterday.
Judge Alfred Siboleka ruled the ‘admissions’ Dausab made to the police officers during his arrest in Otjiwarongo as inadmissible. “Any explanation about what happened regarding the charges the accused is facing, that he may have explained to any person, including the police officers of Otjiwarongo at the time he was in their custody cannot be admitted as evidence against him on this matter,” Judge Siboleka ordered. The 44-year old Dausab is facing a double murder charge for killing his late girlfriend Paulina Kenamuni (28) and her mother Elfrieda Kenamuni (44) by shooting them with a hunting rifle, in the Ovitoto area in June 2009. Judge Siboleka said the three police officers namely Chief Inspector Kharuxab, Detecive Constable April and Detective Constable Namaseb had a legal obligation to make sure that the rights were properly explained to the undefended accused in a language that he understood before he started telling them what happened regarding the allegations he is facing, which they conceded they didn’t do.
“This shortcoming is fatal as it militates against the accused’s constitutional right to a fair trial enshrined in Article 12 (f) of the Constitution.”
“The fact that at the time of the accused’s arrests at Jimmy’s place he was already aware of his rights from his previous arrests cannot remedy the damage caused by such a failure,” he added. According to Judge Siboleka a person suspected of the commission of an offence whether formally charged for it or not has to be assisted by an attorney. This, he said, is a basic right upon which the effective exercise of other rights and the envoking of various remedies hinges. He therefore ordered as inadmissible the statements Dausab made to the three police officers , as well as the statement made to his employer either verbally or telephonically, while in custody at Kharuxab’s office awaiting to be handed over to the Okahandja police.
The judge however dismissed claims by Dausab that he was beaten by the police officers. “I am reluctant to accept that inside Inspector Kharuxab’s office the accused’s hands were handcuffed behind his shoulders and the three officers started to beat him up by stepping [on him], kicking him while lying down handcuffed. In my view if this happened the accused would have been very seriously injured.” He further said that from the evidence before court he is unable to find any good reason why Dausab did not proceed the lay a charge of assault against the three officers given the fact that charge offices are open night and day. The reason he forwarded that the officers warned him not to say anything is unacceptable and is outright rejected, the judge said. According to Judge Siboleka, more surprising even is why the accused did not seek medical help for the alleged brutal assault.
By Roland Routh