Women and Justice: Court: High Court of Namibia

The accused conceived a child after incestuous sexual intercourse with her brother. After the child was born, the mother tied a scarf around its neck and buried it alive. At trial, she claimed that the child was strangled by its own umbilical cord and was already dead when she buried it. However, medical and forensic evidence showed that the child died from strangulation and suffocation due to the mother’s actions. She was convicted of murder.

The accused was an 18-year-old woman charged with the crime of abortion under the Abortion and Sterilization Act, 2 of 1975 (the “Act”). The Act outlaws abortion and prescribes no minimum sentence for the crime. The accused pleaded guilty and testified that she performed the abortion on herself, which terminated a two-month-long pregnancy. The Court sentenced her to pay N$3,000 or serve two years in prison. On review, the High Court found the sentence to be “completely” disproportionate to the crime. The Judge referred to the Old Authorities and stated that sentences for abortion should be less harsh in cases where a very young fetus is involved. The Judge also found that the accused personal circumstances and the particular circumstances of her trial, including the fact that she was a minor at the time, did not have counsel to represent her, and was not given the opportunity to explain her actions, warranted mitigation of the penalty. Finding that the lower court did not factor in any of these mitigating circumstances, the High Court reduced the sentence to N$300 or three months in prison, which he suspended on the condition that during that period the accused was not convicted of any abortion-related crime.

The accused was charged with assaulting and murdering a woman. At trial, the accused filed an application for his discharge at the close of the prosecution’s case, arguing that the prosecution failed to make a case requiring the accused to answer. According to prosecution evidence, after buying alcohol and drinking it with a group of women he did not know, including the deceased, an argument began because the accused stated that he could have sex with all the women. The driver stopped the car when the accused hit the deceased with a bottle. The accused continued to beat the woman outside of the car and the others drove away in fear for their lives to report the attack the police. Upon their return to the scene, they found and picked up the deceased, who was running down the road after escaping the accused. She later passed away from her injuries. At trial, prosecutors presented several eye-witnesses to testify against the accused, as well as direct and circumstantial evidence to support their case. The accused argued that the eye-witnesses had been intoxicated at the time of the assault and therefore their testimony was unreliable. He also argued that the prosecutors failed to meet their burden to convict him. However, the court agreed with the prosecution and refused to discharge the accused, finding that the prosecution’s evidence presented a prima facie case that the accused was legally obliged to answer.

The accused was convicted of culpable homicide for kicking his girlfriend to death, despite his claims that her death was caused by falling on a rock. In sentencing the accused to 10 years imprisonment, the court noted that violence against women is a serious problem in Namibia and that this should be taken into account in sentencing decisions as an aggravating factor.

The appellant and respondent are divorced parents of three children. At the time of the divorce, custody of the children was awarded to the respondent. The appellant then moved for an interim protection order, claiming that the respondent physically abused their minor children. A court granted the interim protection order on October 3, 2011, and awarded the appellant interim custody of the children, subject to visitation by the respondent, and ordered respondent to cease abusing the children. The Magistrate’s Court subsequently discharged the interim order on October 24, 2011, based on Section 12 of the Combating of Domestic Violence Act 4 of 2003, reasoning that the beatings were an isolated incident and were only meant to punish the children for bad behavior. The appellant challenged the discharge. The appellate court agreed with appellant and granted a final protection order effective through July 2013, which awarded the appellant custody of the children with visitation for the respondent on alternate weekends and holidays. In its decision, the appellate court stated the importance of rooting out the “evil that is domestic violence in order to give effect to the protection of the constitutional value of human dignity.”

The defendant, an 18-year-old uncle of the complainant, was criminally charged for housebreaking with intent to rape and raping his 12-year-old niece. The complainant alleged that the defendant, on three separate occasions, came to the complainant’s home and raped her. The complainant’s mother found out after take the complainant to a clinic, which confirmed that she was pregnant, and confronting the defendant through the headman, as tradition dictates. According to the defendant, the complainant invited him to her home and agreed to have sex with him for money, specifically N$6. Given the conflicting testimony, the High Court of Namibia (“High Court”) found that the prosecution failed to prove the housebreaking with the intent to rape and rape charges beyond a reasonable doubt. In explaining its reasonable doubt, the Court cited the facts that complainant did not mention until her cross-examination that her uncle in fact gave her money on the day of the first rape, that she did not wake her seven-year-old brother or otherwise raise an “alarm” when her uncle arrived at her hut at night, and that she continued to withhold information from her mother “after her mother created a secure environment and the accused failed to execute his threat” to beat the complainant if she told anyone. Still, the Court did not believe the defendant’s testimony that his niece was a “great temptress.” Instead of homebreaking with intent to rape and rape as charged by the State, the High Court convicted the defendant under section 14, sexual offences with youths, of the Immoral Practices Act, 21 of 1980, which carries a maximum penalty of 10 years imprisonment and/or a fine not exceeding N$40,000. The Court found that the State proved the three elements of that offense: the defendant (1) committed a sexual act with a child under the age of 16 (2) when he was more than three years older than her and (3) not married to her. Although the defendant claimed that he did not know the complainant’s age, the High Court held that, in order to avoid conviction, the defendant had the burden of proving that the complainant deceived him regarding her age. The defendant failed to provide such proof.