Prosecutor general Martha Imalwa has called out a former judicial officer, who is accused of sexually violating two women he picked up in Windhoek, for delaying the case that has been on the court’s roll since 2015.

Imalwa said former magistrate Jaco Kennedy’s various applications are causing a delay in his criminal case – and as a result, prejudicial to the State, complainants and interest of justice. “The host of court applications and challenges, including this one, are in my view a deliberate and calculated strategy to obstruct, delay and derail the accused person’s criminal case,” said Imalwa. 

She made her stance clear in response to the application launched by Kennedy in which he is attacking parts of the Criminal Procedure Act 51 of 1977. 

Kennedy wants the High Court to declare Section 158A (1) and or (2) d of the Criminal Procedure Act as amended as unconstitutional. This particular section deals with vulnerable witnesses and the manner in which they must deliver their testimonies.

“The complainants are clearly suffering harm and prejudice due to the delay in the prosecution of the case. They cannot begin the healing process that is necessary after their ordeal for as long as the case remains pending,” said Imalwa.

According to court documents, Kennedy’s case has been on the court’s roll since 2015 and has been clouded with several bail applications and bail appeals both in the high and lower courts. 

After his case was transferred to the High Court for trial, the former judicial officer launched various applications and trials within a trial. The complainants are clearly suffering harm and prejudice due to the delay in the prosecution case. They cannot begin the healing process that is necessary after ordeals for as long as the case remains pending. 

Last month, his recusal application against state prosecutor Innocentia Nyoni was dismissed by the High Court.

Imalwa said Kennedy’s application has no merit because his application in which he opposed the complainants to testify in-camera was dismissed by the court. She said because he did not appeal that judgement, the ruling still stands. In his application, Kennedy is claiming that the particular section affects his right to cross-examine his accusers in open court.  He said the constitution states that one is innocent until proven guilty and the Criminal Procedure Act and any other law or court are permitted by the constitution to establish that indeed a crime was committed against the complainant after all evidence hasj been judicially examined. 

According to Kennedy, that presumption is undermined by Section 158A(3)(b).

“It includes, without affording an accused an opportunity to rebut, that once a complainant registers a sex crime complaint with the police, the section immediately presumes that the sex crime indeed took place and, on that basis, classifying the complainant as a vulnerable witness for criminal trial purposes,” said Kennedy.

Yesterday, Judge Herman Oosthuizen postponed the matter to 21 August for case management. Kennedy is being tried alongside his cousin Raymond Cloete. 

The former magistrate is charged with three counts of rape and charges of kidnapping, attempted murder, attempting to defeat or obstruct the course of justice, and alternatively hindering the duties of an authorised officer. 

Cloete is charged with two counts of rape and a count of kidnapping.

The State alleges that on 3 January 2015, Kennedy and Cloete attacked a woman between the Windhoek Central Hospital and Katutura Intermediate Hospital after offering her transport from Otjomuise to the Windhoek city centre. 

The State further alleges that Kennedy tried to murder the victim by assaulting and strangling her.  On the charge of attempting to defeat or obstruct the course of justice and alternatively hindering the duties of an authorised officer, the state is claiming Kennedy assaulted a police officer, who wanted to arrest him. He is further accused of authoring a statement in which the victim claimed she was not raped.

Kennedy has, however, denied the allegations.

However, the State’s first witness, police sergeant Lukas Kapolo, testified that on the date in question, he and his colleagues were directed to the scene by the security guard, who made the call to the police.

He said they found a silver VW Polo vehicle with a passenger door open and Kennedy emerged from the car with his trousers down to his knees.  As they were trying to apprehend him, a scuffle started. 

Kennedy was allegedly aggressive and had a knife.  The police allegedly only managed to apprehend Kennedy after several police officers arrived at the scene. 

Cloete also emerged from the vehicle. 

Kapolo narrated that a half-naked woman at the back of the car got out of the vehicle. Her skirt was lifted to her hips, while the lower half of her body was naked.

The State further alleges that while on bail on the first offence, he once again picked up a woman, who was waiting for a taxi, to take her to her workplace on the morning of 31 December 2015. 

He allegedly drove with her to a spot where he raped her. He was arrested at the end of January 2016. -mamakali@nepc.com.na