WINDHOEK - Three judges of the Supreme Court last week issued an order for Windhoek High Court Judge Dinnah Usiku to allow State Advocate Cliff Lutibezi to cross-examine a witness they consulted with, but in the end did not call, but who was called by the defense.
Judge Usiku denied Lutibezi the opportunity to cross-examine Raymond Röhm after he testified for the defense in the trial of three City Police cops on trial for the murder of Mandela Ramakhutla who was just 17-years at the time of his death. The cops, Johannes Sheetekela Werner, 33, Kleopas Shikalepo Kapalanga, 31, and Elia Nakale, 36, are charged with kidnapping Ramakhutla and continuously assaulting the 17-year-old while driving around with him handcuffed in April 2013, thereby causing his death eight days later in Katutura hospital.
They denied charges of murder, kidnapping and defeating the course of justice or attempting to do so at the start of their trial in June 2016.
Judge Usiku denied Lutibezi the chance to question Röhm after Kadhila Amoomo, the defense counsel for Nakale objected as Lutibezi had already extensively consulted with the witness and deciding not to use him and as such is in a privileged position.
Usiku at the time agreed with the defense counsel and barred the state from cross-examining the witness.
Lutibezi then lodged an application to cross-examine the witness which was also refused on the premises that Usiku already ruled on the issue and cannot revisit her ruling.
The state then sought the indulgence of Namibia’s highest court to give clarity on the matter on a special review.
Acting Judge of Appeal Theo Frank who wrote the judgment in agreement with Deputy Chief Justice Petrus Damaseb and Judge of Appeal Elton Hoff set aside the ruling of Judge Usiku and ordered that Röhm must be called back for cross-examination by the prosecution.
He said the failure of the High Court to allow the prosecutor to address her prior to making the rulings amounted to an irregularity on her part.
According to Judge Hoff, there is no restriction in law to a prosecutor cross-examining State witnesses made available to the defense after the closure of the State’s case because the prosecutor consulted with such witness in preparation for the case.
The failure to allow such cross-examination amounted to an irregularity, the judge stated. The trial will now resume on April 26, for Lutibezi to cross-examine Röhm.
Boris Isaacks represents Werner, Willem Visser acts for Kapalanga and Kadhila Amoomo is on record for Nakale, all private instructions through the City of Windhoek and all three accused persons are free on bail.