A former magistrate, who is now facing rape charges in a Windhoek court, has given notice he intends to challenge the constitutionality of a section in the Criminal Procedure Act that protects vulnerable witnesses.

The section in question makes provision for a complainant in a sexual offence that he or she may be shielded from their alleged attacker and can testify via closed-circuit television from another room.

While he did not give details of the challenge to be lodged, Jaco Kennedy’s lawyer Boris Isaacks pointed out his client has the right to face his accusers face-to-face when they testify against him. 

Deputy prosecutor general Innocencia Nyoni indicated she will oppose the application.

Isaacks also informed the judge Kennedy has undergone psychiatric treatment and was prescribed medication that made him incapable of giving proper instructions.

He, thus, asked the court to vacate the dates set down for the matter, as he is currently busy with rehabilitation and needs time to receive further assistance at a private psychiatric hospital in Windhoek.

Nyoni expressed her disgust in the manner the application was brought about at the eleventh hour. 

She stopped short of accusing Kennedy of delaying tactics, saying it was a well-known fact that she wanted to have the two complainants give their testimony during this session of the trial.

Acting Judge Kobus Miller, who is presiding over the trial, said while he is not bound by the manner in which the prosecution is to handle its case, he is bound to hear the application, and asked whether the State has no other witnesses prepared. 

He then postponed the matter to 7 March next year to run until 18 March.   

Kennedy is charged with two rape counts, of which the first reportedly took place between the Katutura and Windhoek Central hospitals – and another in the Otjomuise area while he was out on bail on the first rape count.

In the first incident, Kennedy is charged alongside his cousin Ray Cloete (31) for allegedly raping a 43-year-old woman they had offered a lift in January 2015 between the Windhoek Central Hospital and Katutura state hospital. 

It is alleged the two took turns to rape the woman, who had a four-month-old baby with her. 

A security guard, who was stationed in the vicinity, witnessed the rape and informed the police. 

According to the police officers who arrived at the scene, they found Kennedy half-dressed, on top of the complainant – and Cloete naked.

Kennedy, however, denied he had intercourse with the complainant, but he did say he and Cloete had a sexual conversation with her, and he gave her N$200 to have sex with them.

Kennedy and Cloete were granted bail of N$3 000 in the magistrate’s court on that charge. 

Kennedy was re-arrested for allegedly raping a 20-year-old woman in the early morning hours of 31 December 2017.

He is disputing the allegation, saying he never gave anyone a lift anywhere on that morning nor does he know the complainant.

The complainant, however, testified in opposition to bail in the magistrate’s court that Kennedy raped her after he offered her a lift to her workplace.

- rrouth@nepc.com.na