Legal Opinion On Inordinately Long Fixed Terms Of Imprisonment In Namibia

Please provide a detailed legal opinion on the question whether inordinately long fixed terms of imprisonment which could extend beyond life expectancy of an offender, constitute cruel, inhuman or degrading treatment or punishment in conflict with article 8 of Namibian constitution which entrenches the right to human dignity, with special reference to Zedikias Gaingob and others v The State (Supreme Court of Namibia, 6^th February 2018) 

-Critically look at judgement, thorough legal opinion to criticize judgement.

Namibia Prison Services and Judiciary

Namibia is party to the United Nations Standard Minimum Rules for the prisoner’s treatment. The correctional services and mission statement for division of prisons have been adopted by the Namibia. According to this the Namibian prison services are major part of judiciary. It gives contribution to the security of society by giving safe and secure custody of criminals in accordance of general standards when supporting them in reintegration programme. 

The life time imprisonment will leave the criminal without genuine expectation of being released from sentence. It will lead to harsh, degrading and heartless punishment. At the time of deciding the sentence of life time imprisonment the court should consider the various essential factors because it is too difficult to spent life in the imprisonment. The life time imprisonment should be given only in case of serious offence. It is also required by parole board to observe behaviour of prisoner and give second chance to the criminal to enter into society.

In this essay, extremely long term sentence and its effects are discussed and critically examined with the help of case law.

Long term imprisonment in Namibia and its effect-

It has been administrated by Supreme Court of Namibia that substantially long period of sentence without the expectations of release are unauthorised or unconstitutional. In its place of long term jail, the punishment of life time imprisonment is thought to be the cruellest and unsympathetic punishment a court can give to the criminal. The deputy prosecutor general Dominic Lisulo also had the same opinion that life time imprisonment was most difficult punishment in Namibia a court should enforce on criminals. Dominic Lisulo further gave consent to a punishment that eliminated the expectations a prisoner might have had of being released on some day would not be correct. It was genuinely expected by the Namibian society that courts had to enforce punishment that would secure society from offenders who commit most terrible crimes. It was argued by the Lisulo that if there was an issue with punishment, that issue concerns with the parole scheme.

The judgement of life time imprisonment is an important decision. At the time of imposing the sentence of life time imprisonment, the court should consider the various relevant factors or component. In case State v Malumo, it was stated that in respect of crimes of disloyalty, murder and attempt to murder the court should consider purpose of punishment such as revenge, restrictions, preventions and reintegration. Each component contained a definite weight. All components should not be contained equal weight. The period of sentence of life time imprisonment should be measured along with components such as inhumanity and culpability. 

Effects of Long-Term Imprisonment in Namibia

The purpose of particular term of imprisonment cannot be accomplished according to particular factually applicable standard. There can be range of improbability in which ideas as to accurate prison term could genuinely fluctuate. It is a right of state to give punishment those persons who by way of illegal conduct deliberately attempt to overthrow the government by force as to endanger the protection of state and make efforts to change constitutional framework of the state. The various provisions state that the punishment of life imprisonment proposed in the Criminal Procedure Act, 2004 is something doubtful. One should be very hopeful to accept that there will not be issues where it will not be confusing to prisoners and the public. It is because the punishment of life time imprisonment for the fifteen years or for the balance of normal life of criminals. 

The interest of society means natural resentment of the member of society in relation to commission of particular crime and their hope in relation of sentence. It is not necessary to consider the views of society. It is essential to consider the opinion of the well-versed, sensible, law abiding and balanced members of the society. The purpose of the punishment is not to fulfil the view or opinion of public but to serve public interest. In respect of some danger crime the own circumstances of the criminal by themselves will essentially retreat in the background. For the valid consideration, pertinence should be genuine. Criminals should take the court into their confidence. It should be considered by the court that whether criminal feels sorry or not.

The age of the criminals should be taken into effect when imposing the sentence of life term imprisonment. It is an important factor. The grade of involvement in the crime should also be considered by the court while deciding the punishment for the criminal. It is also required by the court to consider moral culpability of offender. These factors are required to be considered by the court carefully so that court can justify the sentence of life time imprisonment.

In case S v Ncube and others, the question was whether the specific form of punishment approved by law can appropriately be considered to be cruel or degrading includes the exercise of important decision by the court. The value judgement is required to be express and recognise in respect of being had to modern norms, hopes, feeling and the understandings of people of Namibia as stated in national organisations and constitutions.

Relevant Factors in Imposing Life Sentences

In case S v Kanguro, to decide the proper punishment under the circumstances, the mental and emotional condition is main factor to be considered. The state of mind of criminal is essential and critical factor to decide the moral culpability and guilt of offender. The grade of moral culpability is required to be stated in the punishment enforced on the criminal. 

In Zedikias Gaingob and 3 others v S, Gaingob, Haufiku, Kheibeb and Urikhob had been sentenced of having robbed and killed an old couple in night at farm in district Okahandja in April, 2000. Gaingob, Haufiku, Kheibeb were sentenced to imprisonment for the period of 67 years. On the other hand, Urikhob was sentenced to an imprisonment for 64 years. They are sentenced to long term imprisonment for the two counts of murder. One count was for housebreaking with the intention of robbery. Two counts were housebreaking with intention to steal and theft.

In this appeal issue was that whether extremely long period of sentence that could extend beyond the life expectation of a criminal, establish cruel, harsh, corrupting treatment or punishment in contravention with Article 8 of the Namibian Constitution that establishes the right to human self-respect.

The Attorney-General filed an affidavit in which it was contended by him that when punishment is pointed at restriction, prevention and rehabilitation, any punishment or term of sentence which takes away all expectations of release from a criminal, should be contrary to values and aims of the Namibian Constitution. The life time imprisonment is most severe procedure of punishment a court can enforce on defendant. The act provides for rehabilitation programmes to disclose the requirements of criminals to render contribution to successful re-integration and mechanism for release of criminals.

As per the section 115, the complainants will be eligible for parole after considering the two third of respective term. In case of Zedikia Gaingob, Erenstein Haufiku, Salmon Kheibeb, this will be after 44 years and half years and in case of Nicodemus Urikhob, this will be after 42 and half years. On the other hand, section 117 states that in case of criminals sentenced to life time imprisonment, the most difficult and severe sentence and eligibility for parole will be arise after 25 years. It was held by the court that parole does not provide automatically. It is required by the National Release Board to be satisfied with requirements of parole as well as before release on parole can be recommended.

Critique of Zedikias Gaingob and Others v The State Judgment

The expectations of release on parole after 25 years if the necessities of parole are met means that life time sentence in Namibia does not trespass criminal’s right to self-respect protected under Article 8 as held in S v Tcoeib. It was held by the court that critics have defined informal life sentences where obligation of extremely long period of imprisonment of criminal till they die in jail, removing all possible expectation of released during life period is unfamiliar to a cultured legal system and conflicting with criminal’s rights to human self-respect protected. In the absence of genuine expectation of release for the criminal sentenced to extremely long period of sentence will be according with approach of the court in Tcoeib and other standards offend against right to human self-respect, security from cruel and degrading punishment.

As per the judgement the actual sentences of 67 years in this matter mean that Zedikia Gaingob, Erenstein Haufiku, Salmon Kheibeb will be eligible for parole after the forty four and half years. The actual sentences of 64 years in this matter mean that Nicodemus Urikhob will be eligible for forty two and half years. It was held further that imprisonment in this case means informal life imprisonment enforced upon the complainants as they have no accurate view of release in respect of involvement in the society again during the life time. The plaintiff will be eligible over the eighty years for the Zedika Gaingob, sixty nine and half years in the matter of Erenstein Haufiku, seventy seven and half years in the matter of Salmon Kheibeb and sixty six and half years in the matter of Nicodemus Urikhob.

Appeal Judgement-

1. The main question for the appeal is that whether extremely long period of sentence which could deny a criminal of the expectation of release during the long life will create painful, vicious or humiliating treatment or punishment in contention of Article 8 of the Namibian Constitution which establishes the right to human self-respect.
2. On 8 February 2002, the high court imprisoned these four plaintiffs on one count of housebreaking with intention of robbery with aggravating conditions and two counts of housebreaking with purpose of robbery and steal.
3. The murder sufferers were a couple Mrs and Mr Adrian. They were cruelly murdered on farm in remote area of Okahandja. Three plaintiffs had attempted to break in at their farm house a few days before the fateful night. The couple was warned. The Warning shots were fired. The couple came back with other complainant a few nights later when elderly couple had retired for the night.
4. The plaintiffs overdrawn in the house but failed to enter into bedroom in which Mrs and Mr Adrian were sleeping. The plaintiff triggered the dogs to bark. This encouraged the couple. When investigations were required by Mr Adrian, then Adrian was beaten with droppers. After this Mrs Adrian was beaten and locked in the room. They died in the room. The plaintiffs made off with box of money, weapon and apparels from house. The couple also overdrawn into store and parking slot of farm. They made loot at the house of third plaintiff.
5. The plaintiffs were represented in the trial. The plaintiffs chosen to not to present evidence or request any witness to provide evidence on the behalf of plaintiff in mitigation of punishment.

The judgement given by Smuts JA is acceptable. It is required to be understand in the framework of the punishment of life imprisonment only. Secondly it is required to speak to deal with punishments that pursue to avoid legal mechanism permitting persons sentenced to life imprisonment to relate for release on parole after serving the legally approved term. There cannot be long period for sentence than one for life time. It means the criminal is required to pass the remaining life in the jail. This is not easy to spend whole life in the jail. The provision related to minimum compulsory sentence is given under Stock Theft Act 1990 (Namibia). It is cleared from the Tcoeib that this is considered as most difficult punishment that can be enforced. The various provisions have been made by the act for releasing the criminal on parole.

Legal Precedents in Namibia Regarding Life Sentences

There are various meanings of life time imprisonment in the Criminal Procedure Act 2004 such as life time imprisonment without the concept of release the criminal on parole and life time imprisonment with the concept of release after the criminal has served twenty five, twenty or twenty five depending on the conditions. It has been observed that life time imprisonment without the concept of release the criminal on parole is cruel and heartless. It interrupts the article 8 of the Namibian constitution. It is also the matter of argument that section 309(3) of the Criminal Procedure Act, 2004 states that the compulsory life imprisonment is unconstitutional because it conflicts with article 78 of the Namibian Constitution which assurances the principle of doctrine of power’s separation.

 It is recommended that the Criminal Procedure Act, 2004 should be altered before it is endorsed to eliminate the life time imprisonment without the concept of release. The Prison Act is required to be amended to particularly given for the regime governing the release of criminals punished to life time imprisonment. The court is essentially saying that sentence of life imprisonment without the concept of parole or reduction of punishment as anticipated in the related provisions of the Criminal Procedure Act 2004, interrupts the right to human self-respect, is unconstitutional. 

As per my opinion, the life imprisonment is maximum sentence to be imposed on criminal for criminal offence. It should be applied only to serious crimes or offences such as murder. The life imprisonment should not be used in less serious offences and non-violent crimes because treatment of prisoners serving life time imprisonment is worse than those people for remaining custodial population and more likely to fall below human rights standards. The prisoners serving the life time imprisonment should be eligible for the similar rights as other prisoners. All prisoners including the prisoners serving the life time imprisonment should have rights to parole. For example, all the prisoners serving life time imprisonment should be offered rehabilitative actions and treatment in accordance with personal requirements. The situations for releasing the prisoner from prison should be determined by the risk they describe to the society instead of politically driven issues. The person sentenced to life time imprisonment should have right to appeal so that they can seek pardon or commutation of punishment.

The life time imprisonment without the option of parole should not be considered for the any type of criminal. The elimination of chances of release not only amount to cruelty and humiliating treatment but also disagree the criminal a significant opportunity for reintegration is in the contravention of international human rights. The humans are not commodities to which price tag may attached. The humans are persons with inborn worth. They are required to be treated as ends in themselves, never as means to finish.

Conclusion

Conclusion

Simply it is cleared from above discussion that it is not possible for the court to observe the criminals on the continuous basis to evaluate whether the criminals have been reintegrated. The court cannot see all time that criminals are ready or not to enter into the society again despite not serving the full imprisonment. It is possible for custodial authorities to deal the criminals and position of criminals on the daily basis. The imprisonment for life time without expectation of release before death renders imprisonment cruel and deprive such offender of self-respect cannot be seen in segregation.  It is recommended that releasing the criminal on parole must be seen in respect of application of life time imprisonment only. If any offender sentenced to the imprisonment does not fulfil the requirements of parole then such offender must spent his whole life in the prison. One may die during the life time imprisonment. So it is required to consider the various recommendations at the time of declaring the sentence of life time imprisonment. The life time imprisonment should be given only in case of most difficult crime. The parole board should be satisfied that the criminal serving a life time imprisonment would not re-crime. It should be satisfied that the criminal would lead a healthy, valuable, bust and the active life before take the decision of granting parole to the prisoner.

Statutes and statutory instruments

Stock Theft Act 1990 (Namibia)   

Criminal Procedure Act, 2004

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