Ex-magistrate wants to fight rape charge from home

The State and the defence have closed their arguments in a High Court appeal by a former magistrate to be granted bail for alleged rape, after the Windhoek Magistrate’s Court in Katutura had initially refused to free him.
Judge Alfred Siboleka, who presided over the matter at the Windhoek Central Prison, reserved judgement until 8 July.
In her arguments, Deputy Prosecutor-General Innocencia Nyoni said that certain people had tried to convince by telephone and SMS that former magistrate Jaco Kennedy is going through a rehabilitation process, and that he must be given bail to continue with his treatment.
She said these people had tried to interfere.
Kennedy is currently languishing in custody, after the magistrate’s court refused to grant him bail on 18 February.
He allegedly committed the rape he was denied bail for, while out on bail on another rape charge.
In the second incident, he allegedly raped a young woman in his car in December 2015, after offering her a lift to her workplace.
Consideration for complainant’s safety, the interest of society and the interest in the administration of justice formed the basis of the court’s decision to deny him bail.
He was further denied bail on the grounds that the State has a strong case against him, that the defence did not call witnesses to dispute the State’s version and that he might interfere with investigations.


Magistrate Bernedine Kubersky said in February during her bail ruling that Kennedy had not provided evidence proving he is the sole breadwinner.
Kennedy had also alleged that on the day of the incident, his wife had the keys of his Mercedes Benz, but did not call her to testify, so she could confirm this.
Judge Siboleka observed yesterday that the defence had argued that there was no penetration, and that this is one of the requirements to prove rape.
Nyoni said that it is one of the requirements, but added that the legal definition of penetration is that a penis, finger or object must be proven to have been inserted in the woman’s private parts, mouth or anus.
She argued that there are other acts that qualify as rape, which were present in this case. “The victim screamed and pleaded with the accused to use a condom,” she said, adding that the complainant testified during the accused’s bail application that she was undressed and that he was laying on top of her.
The prosecution said the magistrate was entitled to take into account the seriousness of the charges Kennedy faces, and although he is not yet convicted, there was sufficient
evidence.
“The applicant has a high propensity to commit similar crimes and I urge the court not to grant him bail,” Nyoni submitted.
Defence counsel Boris Isaack argued that the State must present prima facie evidence and the court must pronounce itself on merits.
He maintained that there is no prima facie evidence of rape, but only evidence that can possibly lead to an indecent assault charge.
He said further there are earlier allegations of rape against the applicant, and while he was on bail, he allegedly committed a similar offence.
Isaack, however, said his client had not yet been convicted.

FRED GOEIEMAN