A Cuban doctor accused of raping a female colleague about three years ago is challenging a section of the Combating of Rape Act.

According to Dr Pedro Luis Viera, the section that contains the words “but is not limited to” is unconstitutional. He now wants the High Court to declare that section invalid and of no force in law and effect and to strike it from the Act.

He further wants the court to declare that insofar
as the prosecutor general based her decision to charge him on the basis of that section, her decision was unlawful and further declaring the section as unconstitutional. He argued this unduly places an unreasonable limitation to his rights contemplated
in Article 12 of the Namibian constitution.

In court papers drafted by his lawyer, Kadhila Amoomo, the applicant asked the court to strike the words “but it is not limited to” from the rest of the section and that costs of the application be borne by whomever opposes it. He cited the PG, the attorney general, the minister of justice and the government as respondents in the matter. At the time of writing the article, none of the respondents has indicated whether they will oppose the application or not.

In his founding affidavit, Viera says Section 2 (2) of the Act purports to provide the definition of coercive circumstances, which makes provision for the words “but it is not limited to”, which is vague and unclear. 

“The impact on a person charged under this section, which I submit, is a cornerstone of the entire statute is that it leaves a person charged thereunder unclear and incapable of knowing the full extent of the criminalised behaviour thereunder,” he claims. 

According to Viera, it is important for an accused person such as himself to know exactly the nature of the charges as well as the components of the criminalised behaviour forming part of the charges. 

He further said that it is also important to understand exactly the full size, extent and limits of the penal law which forms the subject matter of the charges so that, as an accused person, he does not find himself facing criminal behaviour to support limitless charges containing limitless conduct which has not been properly set out in the Act.

He further argues that when the law such as Section 2 (2) sets out serious charges, but still leaves the description of further and more coercive circumstances undefined and subject to the whims of anyone, it renders such a law vague and unclear as to its true import in the definition. In a nutshell, he said, the impugned portion of section 2(2) of the Combating of Rape Act 8 of 2000 facilitates an untenable situation in which he may, in the preparation of his defence, rely only on the conduct enumerated under Section 2 (1) and in the process leaving him vulnerable to be convicted on other coercive circumstances that he has no knowledge of simply because the definition of coercive circumstances therein accommodates and incorporates further criminal misconduct which is unclear.

“To make matters worse, I point out that at the end of my trial, the prosecution may relying on that limitless definition of coercive circumstances therein, get the opportunity to seek my conviction for such undisclosed, but nonetheless permitted or permissible unclear conduct that may constitute or fit the definition of coercive circumstances thereunder,” Viera stressed.        

Viera is currently out on bail.   

Windhoek High Court Judge Thomas Masuku set down the matter to 2 September for case management. – rrouth@nepc.com.na