Police pay for transphobic attack

14 November 2021 | Justice

Windhoek • [email protected]

A police officer’s transphobic attack and unlawful arrest of a Namibian transgender woman five years ago, is costing the Namibian police N$50 000.
On Friday, High Court judge Esi Schimming-Chase said the court found that Mercedez von Cloete “was clearly wrongfully and unlawfully arrested and assaulted by Constable Kavari”.
The judge said “the insult to the plaintiff who was humiliated and discriminated against because she is a transwoman” was a significant factor in her consideration of damages.
“Police officers are obligated by law to protect all members of Namibian society, regardless of their gender,” the judge said.
She added that the Constable Kavari, who could not be traced by his bosses to provide testimony during the trial, had demonstrated behaviour that was a “disappointing and egregious violation of his professional duties to the public. In fact, that he was not even present to testify remained an elephant in the room”.
Von Cloete sued the Namibian police after she was assaulted, harassed and unlawfully arrested by Kavari on 6 July 2017, at a fast food outlet in Windhoek.
Shortly after the ruling was given, Von Cloete said the outcome “made me a little bit more hopeful and optimistic that justice does exist in Namibia and that it is possible to seek recourse through the legal system, and that the truth will always prevail.”
With regards to the trauma of the event, Von Cloete said that “anyone who has been subjected to cruel and unfair treatment should not be afraid to take the necessary steps to also get their day in court. I am absolutely ecstatic.”

Victim blaming
The police argued during trial that Von Cloete had provoked Kavari, an argument roundly dismissed by Schimming-Chase in her ruling on Friday.
The judge said “one can only imagine the effect on the psyche of being picked up by plainclothes police, threatened to be arrested, unlawfully arrested, then beaten and insulted and thereafter dropped off for the police officer to then continue on his merry way as if nothing serious had occurred.”
Schimming-Chase emphasised that after Von Cloete was assaulted before her arrest, she was again assaulted when she arrived at the police station, as shown in video footage presented at the trial.
“The police officer had the responsibility to act in a trained and professional manner. Instead, he assaulted a member of the public like was a right.”
Von Cloete sued the police with the help of the Legal Assistance Centre in 2018. During the trial, she was represented by Unomwinjo Katjipuka-Sibolile from Nixon Marcus Public Law Office.
Katjipuka-Sibolile argued at trail that the attack and unlawful arrest constituted a hate crime, warning that media reports showed a worrying increase of transphobic attacks in Namibia.
The state earlier this year argued damages should not exceed N$10 000, after admitting the assault and unlawful arrest took place.

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