WINDHOEK - The Department of Legal Aid yesterday detonated a massive legal bomb in the Windhoek High Court when its representative informed Judge Christi Liebenberg that it will no longer provide legal services to American murder accused Marcus Thomas.
According to legal aid, Thomas already had seven legal representatives, some of whom he either fired or withdrew from his case for various reasons.
The last one who was on record for Thomas, Khadila Amoomo, had to withdraw because of a conflict of interest as he is also representing one of the witnesses for the State.
The other two appointed by legal aid, Gilroy Kasper and Henry Shimutwikeni, had to decline the appointment as they had no opening in their diaries for the whole of this year.
Judge Liebenberg wants the trial to resume after several delays caused by an application for mental observation by Thomas after he allegedly suffered from a head injury caused by a botched escape attempt.
Several legal practitioners New Era spoke to about the issue of legal aid’s refusal to provide Thomas with further legal representation had different opinions on the matter.
While all agreed it is not an absolute right to be provided with a State-funded legal representative, some are of the opinion that in the present instance it is imperative for the administration of justice and the principle of fair trial that Thomas is represented.
According to one lawyer who wished to remain anonymous, Article 95 of the Namibian Constitution makes provision for a “legal system seeking to promote justice on the basis of equal opportunity by providing free legal aid in defined cases with due regard to the resources of the State”, which makes it obligatory for the State to furnish free legal aid in cases where an accused cannot afford it. Another argued the State may, in instances where an accused abused the system to delay the trial unnecessarily, refuse to provide legal aid.
According to the website of the Supreme Court: “In criminal cases, the State (indirectly the complainant) is represented by a public prosecutor who is paid by government. In the case of the accused, however, s/he has the right (according to Article 12(1) (e)) to be defended by a legal practitioner of his/her choice. However, this is not possible for accused persons who are less privileged and cannot afford a legal practitioner of their choice. Therefore, Article 95 of the Constitution generally provides for the promotion of the welfare of the people.
Article 95(h) specifically provides for – a legal system seeking to promote justice on the basis of equal opportunity by providing free legal aid in defined cases with due regard to the resources of the State. The binding effect of the provisions of Article 95 was one of the issues that had to be determined by the Supreme Court of Namibia in the case of Government of the Republic of Namibia & Others v Mwilima & all other Accused in the Caprivi Treason Trial 2002 NR 235 (SC).”
The Supreme Court ruled that in so far as the services impinged on the fundamental rights of the individual as enshrined under Chapter 3 of the Constitution, the government was under a constitutional obligation to provide such services and the judiciary had the obligation to enforce and protect the fundamental rights of the individual as enshrined in the Constitution.
Judge Liebenberg remanded the matter to today to give Thomas another chance to convince legal aid to provide him with legal representation.
Thomas and fellow American, Kevin Townsend, are facing one count of murder, one count of robbery with aggravating circumstances, three counts of contravening the Ammunitions Act and one count of defeating or obstructing or attempting to defeat or obstruct the course of justice. New Era Reporter
2018-07-31 09:18:23 | 2 years ago