By Mbatjiua Ngavirue
WINDHOEK
Police officers who allow rape victims to withdraw charges might be found guilty of “compounding” and could face prosecution, says Prosecutor-General Olivia Martha Imalwa.
Imalwa said this in response to an enquiry on whether withdrawing rape cases with police, which is common practice in Okakarara, is legal.
“If police officers are withdrawing rape cases on their own, then we have a serious problem that needs investigating.
“This comes as a surprise to me. Who gives them such power?” she asked.
In Okakarara, rape victims frequently go to the police to request the withdrawal of rape charges they would have made against a perpetrator.
The victims are apparently often pressurised by parents or other family members to seek material or financial compensation instead.
Community members raised the problem during a recent visit to Okakarara by Parliament’s Standing Committee on Human Resources, Social and Community Development.
Olga Tjurutue of Women’s Action for Development told MPs of a case in which the parents of a 16-year-old rape victim negotiated payment of four goats as compensation.
It subsequently emerged the young girl became infected with HIV because of the rape.
For the price of four goats, this young girl now has a potential death sentence hanging over her head for the rest of what may prove to be a short life.
Second in command at Okakarara, Sergeant Daniel van Wyk, argued that there was little the police could do when victims decided to drop rape charges.
He said on average, the police received reports of one or two rape cases a month in Okakarara.
The cases were usually part of a dispute between two people who either had an existing or past relationship.
He confirmed that victims usually withdrew their case after parents persuaded them to take the matter to a traditional court for arbitration.
In other cases, the two families negotiated compensation privately.
Van Wyk said gender-based violence in Okakarara mostly involved assault by youngsters – usually a boyfriend beating up a girlfriend.
Most cases also resulted from either alcohol or drug abuse.
Speaking on behalf of Chief Uaakutjo Kambazembi, Secretary to the Kambazembi Royal House, Mujazu Uurika, defended the role of the traditional authority.
Uurika said the traditional authority never asked people to withdraw police cases, but that the people involved chose to withdraw the cases.
Tjurutue said she had a serious problem with the withdrawal of rape cases – apart from the fact that it also created problems for the police.
“People are being paid to withdraw cases but the perpetrators can then go and re-offend.”
She appealed to parliamentarians to introduce a law in parliament that would prevent people from withdrawing rape cases.
As it turns out, Prosecutor-General Imalwa says such laws already exist.
She pointed out that criminal cases, such as rape, are not only crimes against individuals but also crimes against the State and society.
The Namibian Constitution gives prosecutor-generals the sole authority to decide whether or not to prosecute criminal cases – except where they delegate their powers to one of their officials.
The powers of the police are limited to investigating and, if needed, taking a withdrawal statement from the victim.
They then have to attach the withdrawal statement to the docket, but must still proceed with finalising the investigation.
The police must then forward the docket to the district prosecutor.
“However, not even a district prosecutor has the power to decide to withdraw serious cases, including rape cases.”
The district prosecutor simply summarises the evidence in the docket and then sends the docket through to the Control Prosecutors Office, which for Okakarara is in Otjiwarongo.
In some areas, the control prosecutor and district prosecutor are the same person.
The Prosecutor-General has delegated her power to decide whether to send a case for trial in the Regional or High Court to control prosecutors.
With all cases serious enough to warrant trial in the High Court, control prosecutors automatically send them to the Prosecutor-General in Windhoek.
Imalwa, however, said that where there is a withdrawal statement in a rape case not even control prosecutors could withdraw cases on their own accord.
Only the Prosecutor-General in Windhoek can make that decision, or one of her senior officers delegated to make such decisions.
This, however, does not prevent the victims from pursuing compensation in a civil court.
She said the Supreme Court of Namibia stated the law in this regard very clearly in Malan McKean vs State.
McKean tried to argue that since the rape victim had decided to withdraw the case, the State had no right to prosecute, but the court ruled in favour of the State.