Three judges of the apex court of Namibia upheld an appeal lodged by the prosecutor general against the judgment and sentences imposed on a former Katima Mulilo police officer.
High Court Judge Marlene Tommasi convicted Rafael Nawa Ilukena on charges of murder and assault by threat with diminished responsibility and kidnapping and sentenced him to an effective 16 years imprisonment on all charges.
Ilukena was indicted for the kidnapping of his wife’s lover, Christopher Chisanga, and subsequently murdering him on 20 July 2012. He faced an additional charge of assault by threat read with provisions of the Combating of Domestic Violence Act 4 of 2003.
According to the indictment, Ilukena searched for Chisanga after learning from his son that he was having an affair with his wife. Ilukena’s wife had confessed to having a sexual relationship with Chisanga.
Upon finding Chisanga, Ilukena handcuffed him and forcibly removed him from his house in New Cowboy and took him to his house in Chotto Compound. At the house, Ilukena locked himself, Chisanga and his wife in the house for about four hours before the police were tipped off.
When the police arrived at the house, Chisanga was found half naked, bruised and was declared dead upon arrival at the hospital. In her testimony, the wife told the court that Ilukena whipped Chisanga with a sjambok, kicked him with booted feet and trampled on him continuously for four hours.
Ilukena pleaded not guilty to all three charges arguing that Chisanga had consented to be detained, which the court rejected. Ilukena further told the court that he was suffering from stress, anger and was intoxicated when he committed the act.
The State appealed the judgment and claimed that it was not proven that Ilukena acted with diminished responsibility and that the sentences imposed were “shockingly” lenient for offences “so gruesomely perpetrated by a police officer.”
Judges of Appeal Sylvester Mainga, Dave Smuts and Theo Frank were all in agreement that Ilukena’s legal aid lawyer, Petrus Grusshaber was correct to concede that the two convictions coupled with diminished responsibility were wrong and that on the evidence presented should have been with direct intent.
“There is no evidence in the instant case that the accused at the time he committed the offences or before that, suffered from a mental illness or defect,” the judges stated.
They further said that although it is clear that while the accused was under the influence or had taken a few beers, he knew what he was doing when regard is had to the manner in which the crimes were executed, from the hunt of the deceased, his arrest and the torture that followed, accused had direct intent to murder the deceased and required intent on the threat in respect of his wife.
They subsequently set aside the High Court’s ruling and replaced it with a conviction of murder with direct intent and assault by threat. They further replaced the sentences with five years on the kidnapping conviction, 20 years on the murder conviction and three years on the assault conviction. It was however ordered that the sentence for assault run concurrently with the murder sentence.
The State was represented by Ruben Shileka.