Immunity dismissed by Supreme Court

20 August 2020 | Crime

Windhoek • [email protected]

A police officer who was granted immunity last year from further prosecution on corruption and blackmail charges dating back nine years, saw that decision reversed and dismissed this week by the Supreme Court.
On Wednesday, Deputy Chief Justice Petrus Damaseb said the appeal brought by the Prosecutor General (PG) asking that the stay from prosecution granted to police office Marien Ngoubabi Namoloh by a High Court judge last year, be dismissed, was successful.
Judge Sylvestor Mainga and Judge Hosea Angula agreed with the decision to dismiss the stay of prosecution.
Damaseb said that once a criminal charge has been withdrawn, as it was against Namoloh in 2014, “there is nothing to stay”.
He explained that as the person is no longer an accused facing charges that could in law be granted a permanent stay from prosecution, immunity is not possible by law.
The Supreme Court judgment is related to an arrest that took place 11 years ago.

Eleven long years
Namibian police Warrant Officer Namoloh was arrested on 26 June 2009 along with four other police officers on allegations of corruption and extortion of two Tanzanian nationals. They were released on N$7 000 bail and Namoloh was suspended from the police force.
After the case failed to go to trial in the Magistrate’s Court over the next six years following numerous postponements, the PG provisionally withdrew the charges after a magistrate refused to grant another postponement to the state.
Namoloh was reinstated as a police officer, but later told a High Court judge he faced discrimination as a result of the looming threat of fresh charges being brought against him by the PG’s office.
In 2017, he approached the High Court, asking that the court grant him a permanent stay in prosecution as a result of the long delay in bringing new charges against him. He said he was bypassed in promotions, as one example of the backlash of the “provisional withdrawal” of the charges he had faced.
He also said that he spent thousands of dollars in legal representation and argued that “continuation of my trial hereafter will be unfair and will be incompatible with fair trial provisions under Art 12 of the Constitution”.
He told the High Court that “nine years had passed since the opening of the police docket. This conflicts with my right to a trial within a reasonable time guaranteed in terms of the Constitution.”

In January 2019, ten years after his arrest, and five years after the withdrawal of the case by the PG in 2014, High Court Judge Harold Geier granted him immunity from prosecution arising from the allegations in 2009. Geier in his judgment criticised the PG’s office for the “the lackadaisical prosecution” that resulted in the police officer’s lengthy suspension, and his reinstatement in 2014 after the numerous delays in the case.
Geier added that because of the delays and eventual withdrawal of the charges, this “resulted in a situation where a police officer, suspected of corruption and extortion, was allowed to continue to work - now already for some further four and a half years - without the serious charges pending against him being re-instated for determination by a court of law.”
He said the “State has failed dismally in this regard”.
The PG at the time denied any dereliction of duty in pursuing the prosecution, arguing that the delay was as a result that the “complainants are foreign nationals and as such could not attend every proceeding even if their presence at court could be secured at that stage”.
The court heard the state meanwhile had “all the evidence” and that all witnesses had been traced and could be present once a trial began.
The PG also underlined that the office was still determined to prosecute Namoloh.
She denied that there was an unreasonable delay in the prosecution and maintained that because Namoloh is a police officer, there was a greater public interest in him being prosecuted.

Legal fine print
The PG’s office appealed the judgment in the Supreme Court and the judgment delivered on Wednesday concluded that because the charges had been withdrawn, Namoloh was no longer an accused and could therefore not be granted a permanent stay of prosecution.
Damaseb dismissed the High Court order.
He agreed with the legal arguments brought by the PG’s lawyer Louis Botes that granting non-accused persons immunity from future prosecution would potentially open the “floodgates”.
“The floodgates concern is not a fanciful one and holds palpable dangers of the overall criminal justice system being overburdened by applications for permanent stay once there is a withdrawal of charges by the PG.”
Damaseb however in his judgement underlined that Namoloh had not acted frivolously when he lodged his High Court case, and for that reason ordered that each party will pay their own costs in the case.

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