Lawsuits against police, NDF pile up

24 June 2020 | Crime

Windhoek • [email protected]

One of the latest lawsuits brought by a Namibian citizen who claims she was brutally assaulted by soldiers during Operation Hornkranz in April last year, is also tackling the lawfulness of deploying soldiers to police citizens alongside the police during times of peace.
Luise Taakambadhala Mwanyangapo, a Namibian civil society worker and 2018 Mandela Washington Fellow, in February this year filed a civil suit against the country’s defence and police authorities asking for monetary damages totalling just over half a million Namibia dollars.
The damages are for pain and suffering, the overall wrongfulness of the assault, and for the cost of medical treatment, loss of valuables during the assault and the cost of a missed flight as a result of the attack. In addition, her civil claim is taking aim at Section 5 of the Defence Act of 2002, which her legal team argue governs the lawful deployment of soldiers to assist the police.
They argue that it is unconstitutional and in contravention of Article 115 of the constitution, which limits the functions of the defence force to the defence of the territory and national interests of Namibia, to deploy soldiers unless a state of emergency or national defence existed, and martial law proclaimed.
The court papers note that law enforcement authorities invoked Section 5 of the defence act when soldiers were deployed to assist the police during Operation Hornkranz, but that no state of emergency existed, or other reason to deploy soldiers lawfully.

Mwanyangapo’s assault made news headlines in April 2019, after a group of soldiers, in full view of police officers, were accused of attacking her and hitting her with a sjambok or baton at Van Wyk’s Bar in Katutura on 27 April.
Mwanyangapo’s court papers state that she was attacked without provocation. At one stage, soldiers kicked her, causing her to fall onto the ground, where the abuse continued. When she attempted to get up, she was beaten with a sjambok or baton, the court papers state.
A photo of her severely bruised and lacerated face was made public at the time and showed the extent of injuries she sustained.
In legal papers sent to the police in the wake of the assault, her legal team wrote that the police “stood by idly” and refused or failed to intervene and stop the brutal and illegal assault of their client.
As a result of the attack, she was hospitalised and treated for a deep laceration on her forehead, an abrasion on her back and bruising over her nasal bridge and left shoulder.

Lethal force
In November 2019 the Legal Assistance Centre published a report titled ‘Use of force by law enforcement officials in Namibia’. The report underlined that while the joint police and army crime operations had received praise from some quarters, and police often operated in difficult circumstances, criticism had swelled against the joint police and army crime operations following multiple reports of abuse by the relevant armed forces.
During Operation Kalahari Desert, two civilians died from lethal force used by soldiers, who were both later arrested and charged with murder.
The LAC further reported that the problem of excessive force by law enforcement was not confined to these special crime-fighting operations.
Between 2010 and mid-2016, it was reported that 118 shooting incidents involving police officers were investigated by Nampol’s Internal Investigative Unit. All of these cases resulted in criminal charges, including 34 charges of murder and 84 charges of attempted murder.
“This points to an endemic problem,” the report notes.
The report further investigates the need for possible law reform to ensure that Namibian security forces are guided by internationally acceptable standards in the use of force during their work.
Namibia Media Holdings to date has reported on more than a dozen civil lawsuits instituted by persons who claim to have been the victims of excessive force during Operations Hornkranz and Kalahari Desert.
These cases, brought with the assistance of either the LAC or lawyer Norman Tjombe, amount to total damages from the security forces of more than N$5 million to date.
Unomwinjo Katjipuka-Sibolile of Nixon Marcus Public Law Office is working on behalf of Mwanyangapo, while government lawyer Mathias Kashindi is acting on behalf of the defendants.
On Friday last week, the case was referred to mediation for the first week of September and postponed for case planning conference for 14 September before High Court judge Herman Oosthuizen.