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Convict serving life loses appeal for pardon

2018-12-19  Roland Routh

Convict serving life loses appeal for pardon

Roland Routh

WINDHOEK - Immanuel Tjikunga who is serving a life sentence in the Windhoek Correctional Facility for convictions on May 03, 1995 on robbery and murder has lost a half-baked bid to be released on parole after he served 23 years of his life sentence.

He lodged an application in the Windhoek High Court to compel the prison authority to give adherence to a Supreme Court decision in August 2016 that all prisoners sentenced to life imprisonment before the repeal of the Prison Act by the Correctional Services Act in 2012 is eligible for parole after 20 years. 

He further asked the High Court to hold the prison authorities in contempt of court for failure to comply with the August 2016 ruling of the Supreme Court and to compel them to specify a clear and specific time and date when he will be released from prison. He also asked the High Court to give an order declaring his “indefinite” detention as tantamount to inhumane, cruel and degrading treatment in conflict with the Namibian Constitution.

Judge Thomas Masuku, who heard the application, said that while under the old Act under which he was sentenced, Tjikunga would have been eligible for parole after serving a minimum of 10 years, it is worth noting that the Act was repealed and replaced by the Correctional Services Act of 2012 and thus the old Act is no longer applicable in Namibia. Tjikunga, who appeared in person, argued that according to the old Act, he was eligible for parole after serving 10 years, but the prison authority turned a blind eye to his situation. Again in 2015, when after he served 20 years, in his opinion the minimum period prescribed for inmates serving life sentences, he became eligible for parole, but once again the prison authorities failed him. During 2014, he and several other lifers lodged an application in the Supreme Court asking for clarity on the issue of lifers, after the new Correctional Services Act came into play. 

The Supreme Court directed that inmates sentenced before the new Act came into operation the provisions of the old Act are still applicable to them. Tjikunga argued that the prison authorities did not heed this directive of the Supreme Court and never considered him for parole. 

Prison authorities on the other hand, however, disputed this and said Tjikunga was in fact placed on parole which he admitted in his submissions, but said he was only considered. 

According to Judge Masuku, the question he had to determined was whether Tjikunga was placed on consideration for parole or not. He said the prison authorities argued they had given effect to the rights Tjikunga enjoys especially the right to be considered for parole. However, the judge said, it must be stated that parole in itself is not a right, but a privilege extended to deserving individuals, taking into account certain criteria such as the behaviour of the applicant during his incarceration. Judge Masuku said that from the papers and submissions made, it is clear that the possibility of parole for Tjikunga is present and he is not detained indefinitely as he alleges. He went on to say that as was pointed out by the prison authority, the fact that Tjikunga is eligible for parole does not mean that he must be released. “The applicant was considered for possible release on parole but it was concluded that further interventions were required and that he was not ready to take up his position to be integrated into society,” Judge Masuku stated before he dismissed the application and concluded by encouraging Tjikunga to continue submitting himself to the rehabilitation and other programmes run by the correctional facility until he is considered fit for release. He made no order as to costs. The prison authority was represented by N Kandovazu of the Government Attorneys.          

2018-12-19  Roland Routh

Tags: Khomas
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