Namibia’s legal and human rights landscape is under scrutiny. In recent weeks, Namibia has been thrust into a fervent debate over human rights and the criminal justice system, spurred on by the high-profile case of the Fishrot accused. 

This controversy has highlighted pressing questions about the intersection of legal principles and human rights, especially regarding bail applications and medical parole for inmates. 

As these issues come under scrutiny, it is essential to delve into the broader implications for Namibia’s legal framework and the rights of those detained within its correctional system.

The Fishrot case, involving prominent figures accused of corruption related to Namibia’s fishing industry, has ignited a wave of public indignation. The scale of the alleged corruption and its impact on coastal communities have understandably led to widespread frustration. 

Many Namibians view the bail applications by the accused with suspicion, questioning whether granting them bail is appropriate given the gravity of the allegations against them. This public sentiment, however, must be weighed against established legal principles that underpin the country’s justice system.

Right to bail

The right to bail is a fundamental aspect of the Namibian legal system. Section 60 of the Criminal Procedure Act 51 of 1977 provides that any accused person, who has not yet been convicted, has the right to apply for bail while awaiting trial. This right is enshrined to ensure that individuals are not subjected to prolonged detention without the opportunity for release, provided the court deems it just. The court’s role in granting or denying bail is to balance several critical factors. 

These include the length of detention already served, the seriousness of the alleged offence, and the potential risk that the accused might flee or interfere with evidence or witnesses. 

The decision to grant an accused bail is not automatic but rather a judicial assessment of whether such release would undermine public safety or impede the administration of justice.

In the context of the Fishrot case, the court must navigate these complexities, considering both the public’s perception and the legal standards that govern granting of bail. While the public’s outrage is palpable, it is imperative that the judicial process remains fair and impartial, adhering to the principles of justice that protect the rights of all individuals, regardless of the charges against them.

Mwilima’s case

The case of Geofrey Mwilima has brought to light additional concerns about the treatment of inmates. Mwilima, who is reported to be suffering from serious health issues, remains in custody despite the deteriorating state of his health. This situation has drawn criticism from opposition political leader McHenry Venaani, who has condemned the government’s handling of Mwilima’s case as both inhumane and harmful to his well-being.

Mwilima’s plight underscores a broader conflict between ensuring public safety and upholding humane treatment within the correctional system. Namibia’s legal and ethical responsibilities extend beyond mere detention; they encompass the obligation to treat inmates with dignity and address their medical needs. This balance is crucial in maintaining the integrity of the correctional system while safeguarding the fundamental rights of those in custody.

Medical parole 

Namibia’s legal framework does accommodate the possibility of medical parole, a provision that allows for the release of inmates on medical grounds under specific criteria. This mechanism is intended to address cases where continuing incarceration could result in severe health repercussions or where the inmate’s condition renders further detention unnecessary.

The application of medical parole, however, is not without controversy. There have been allegations of selective application and political interference, which can undermine the credibility and fairness of the system. Ensuring that medical parole is applied equitably and transparently is essential for maintaining public trust and upholding human rights.

Article 32(3)(d) of the Namibian Constitution is particularly relevant in this discussion. This constitutional provision grants the President the authority to “grant pardons, reprieves, and commutations of sentences.” This power provides a critical mechanism for addressing exceptional cases where conventional legal remedies may be insufficient, including instances involving medical necessity.

In the context of the Mwilima case and similar situations, this provision could serve as a tool for addressing the unique needs of individuals who may require medical parole or other forms of relief due to extraordinary circumstances. It is essential for the exercise of this presidential power to be guided by principles of fairness and justice, ensuring that decisions are made based on merit rather than political considerations.

Statutory frameworks

The Correctional Service Act 9 of 2012 section 109 and the Police Act provide additional frameworks for the treatment of inmates and detainees. Section 109 of the Correctional Service Act 9 of 2012 mandates that the health and welfare of prisoners be addressed, ensuring they are treated humanely and in accordance with their medical needs. This provision aligns with broader human rights obligations and underscores the state’s duty to uphold the dignity and health of those incarcerated.

The Correctional Service Act 9 of 2012, particularly Section 109(a) and (b), further outlines the standards for the treatment of detainees and the conditions of detention. This Act demands compliance with constitutional and international human rights norms, safeguarding against inhumane treatment and ensuring the rights of individuals in police custody are respected.

Similarly, the Police Act establishes guidelines for the humane treatment of detainees, ensuring their rights are protected throughout the detention process. These statutory provisions are crucial in maintaining the integrity of the justice system and ensuring all individuals, regardless of their legal status, are treated with respect and dignity.

The ongoing debate over granting bail and medical parole highlights a broader examination of human rights within Namibia. While the right to bail is not absolute, it must be balanced against considerations of public safety and the effective functioning of the judicial system. 

Similarly, the application of medical parole and other exceptional measures must be handled with fairness and transparency to uphold the principles of justice.

As Namibia navigates these complex legal and ethical issues, it is essential for both the public and policy makers to engage in informed discussions. The Fishrot case and the treatment of inmates like Mwilima reveal the challenges of reconciling competing interests in the pursuit of a just and equitable legal system. By upholding the principles of justice and humanity, Namibia can continue to strengthen its legal and human rights frameworks, ensuring that all individuals are treated with the dignity and respect they deserve. *Brian Ngutjinazo is an LLB student at the University of Namibia. He writes in his personal capacity.