Supreme Court overturns cop’s immunity
JANA-MARI SMITH
WINDHOEK
A police officer who was granted immunity from prosecution on corruption and blackmail charges saw that decision reversed by the Supreme Court this week.
On Wednesday, Deputy Chief Justice Petrus Damaseb said the appeal brought by the prosecutor-general (PG) was successful.
Judge Sylvester Mainga and Judge Hosea Angula agreed with the decision to dismiss the stay of prosecution granted by the High Court to police office Marien Ngoubabi Namoloh last year.
Damaseb said once a criminal charge has been withdrawn, as it was against Namoloh in 2014, “there is nothing to stay”.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 facing charges, immunity is not possible in law.
Eleven long years
The Supreme Court judgment stems from an arrest made 11 years ago.
Warrant Officer Namoloh was arrested on 26 June 2009 alongside 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.
After the case failed to go to trial in the Magistrate’s Court over the next six years, the prosecutor-general (PG) provisionally withdrew the charges after a magistrate refused to grant the State another postponement.
Unconstitutional
Namoloh was reinstated as a police officer, but later told a High Court judge that he faced discrimination because of the looming threat of fresh charges being brought against him.
In 2017, he approached the High Court, asking for a permanent stay in prosecution.
“Nine years have 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,” he argued before the High Court.
Immunity
In January 2019, ten years after his arrest, and five years after the withdrawal of the case by the PG, High Court Judge Harold Geier granted Namoloh immunity from prosecution on these charges.
Geier criticised the PG’s office for the “the lackadaisical prosecution” that resulted in the police officer’s lengthy suspension.
Geier said the delays “resulted in a situation where a police officer, suspected of corruption and extortion, was allowed to continue to work … without the serious charges pending against him being reinstated for determination by a court of law.”
He said the State had failed dismally in this regard.
Not unreasonable
The PG appealed the judgment in the Supreme Court, denying any dereliction of duty in pursuing the prosecution.
The PG said her office was still determined to prosecute Namoloh.
She denied that there had been an unreasonable delay in the prosecution and maintained that because Namoloh is a police officer, there was greater public interest in him being prosecuted.
Legal fine print
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 found 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.
WINDHOEK
A police officer who was granted immunity from prosecution on corruption and blackmail charges saw that decision reversed by the Supreme Court this week.
On Wednesday, Deputy Chief Justice Petrus Damaseb said the appeal brought by the prosecutor-general (PG) was successful.
Judge Sylvester Mainga and Judge Hosea Angula agreed with the decision to dismiss the stay of prosecution granted by the High Court to police office Marien Ngoubabi Namoloh last year.
Damaseb said 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 facing charges, immunity is not possible in law.
Eleven long years
The Supreme Court judgment stems from an arrest made 11 years ago.
Warrant Officer Namoloh was arrested on 26 June 2009 alongside 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.
After the case failed to go to trial in the Magistrate’s Court over the next six years, the prosecutor-general (PG) provisionally withdrew the charges after a magistrate refused to grant the State another postponement.
Unconstitutional
Namoloh was reinstated as a police officer, but later told a High Court judge that he faced discrimination because of the looming threat of fresh charges being brought against him.
In 2017, he approached the High Court, asking for a permanent stay in prosecution.
“Nine years have 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,” he argued before the High Court.
Immunity
In January 2019, ten years after his arrest, and five years after the withdrawal of the case by the PG, High Court Judge Harold Geier granted Namoloh immunity from prosecution on these charges.
Geier criticised the PG’s office for the “the lackadaisical prosecution” that resulted in the police officer’s lengthy suspension.
Geier said the delays “resulted in a situation where a police officer, suspected of corruption and extortion, was allowed to continue to work … without the serious charges pending against him being reinstated for determination by a court of law.”
He said the State had failed dismally in this regard.
Not unreasonable
The PG appealed the judgment in the Supreme Court, denying any dereliction of duty in pursuing the prosecution.
The PG said her office was still determined to prosecute Namoloh.
She denied that there had been an unreasonable delay in the prosecution and maintained that because Namoloh is a police officer, there was greater public interest in him being prosecuted.
Legal fine print
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 found 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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