Effects of Extremely Long Term Sentences in Namibia

This essay critically examines the effects of extremely long term sentences in Namibia with the help of case law. It discusses the factors that should be considered while imposing life imprisonment and the importance of parole.

Running head: ESSAY 0
constitution law
JUNE 21, 2018
STUDENT DETSAILS:

ESSAY 1
Introduction-
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 programme1.
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
1 Nikol Jackson, ‘Criminal policy in Namibia’ (Princeton University Press 2015)

ESSAY 2
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 scheme2.
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 Malumo3, 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.
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 doubtful4. 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 criminals5.
2 Center financial intelligence,’ Guidance note no 4 of 2015 on the term transaction as applied to accountable
and reporting institutions’ (Butterworth 2015)
3 (CC 32/2001) [2016] NAHCMD 43 (8 December 2015)
4 Criminal Procedure Act 2004
5 Andrew Hicks, ‘Extreme long sentence in Namibia’ (Oxford University Press 2014)

ESSAY 3
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 not6.
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
imprisonment7.
In case S v Ncube and others8, 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.
In case S v Kanguro9, 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
6 William Beinart, ‘social history & African environments’ (Oxford University Press 2018).
7 Robert Beatty, ‘Certainty of punishment in Sentence’ (Routledge 2017)
8 1987 (2) ZLR 246 (SC)
9 (CC 26/2010) [2011] NAHC 187

ESSAY 4
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 S10, 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 criminals11.
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
10(SA 7/2008, SA 8/2008) [2018] NASC 4 (06 February 2018)
11 CRIN (2017) <https://www.crin.org/en/library/legal-database/state-v-vries> accessed on 18 June 2018

ESSAY 5
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 recommended12.
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 Tcoeib13. 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 punishment14.
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
12 Wang Xiumei, ‘is life imprisonment without parole or commutation an effective anti-corruption measure for
china’ [2017] JACL 1.
131991 NR
14 Sanna Nurmikko Metsola, ‘Repression and long term political leadership’ [2018] Defence and peace
economics 20.

ESSAY 6
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.15
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-respect16.
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 night17.
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
15Jes Sarkin, ‘why establishing a credible and legitimate transitional justice model in conjunction with
democratic reforms is necessary for long term peace and stability in Uganda’ [2016] Southern African public
law 31.
16James Henry, ‘Reducing severe sentences’ [2015] Criminology & public policy 14.
17 Jessica Pratt, ‘New Zealand penal policy in twenty first century’ [2017] the Palgrave handbook of Australia
and New Zealand criminology 47.

ESSAY 7
apparels from house. The couple also overdrawn into store and parking slot of farm.
They made loot at the house of third plaintiff18.
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 punishment19.
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)20. 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 parole21.
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 conditions22. 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
18 Kim Miller,’ curriculum development around parenting strategies to prevent and respond to child sexual
abuse in Africa’ [2015] Journal of child sexual abuse 24.
19Lawernce Kazembe, and Isak Neema, ‘Drugs and drug control in Namibia’ [2016] Pan African issues in drugs
and drug control: An international perspective 78.
20 Stock Theft Act 1990 (Namibia)
21 Hans Hailsham, ‘The parole board’ (Butterworth 2018)
22 Criminal Procedure Act 2004

ESSAY 8
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 separation23.
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.
23 Ankur Kathuria, and Frank Porporino, ‘Implementing information technology for corrections in Africa: A
case example of Namibian Correctional Service automated offender management information system’ [2015]
Acta criminological: southern African journal of criminology 21.

ESSAY 9
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-
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.

ESSAY 10
Bibliography
Primary Sources
Statutes and statutory instruments
Stock Theft Act 1990 (Namibia)
Criminal Procedure Act, 2004
Secondary Sources
Books
Beatty, R, ‘Certainty of punishment in Sentence’ (Routledge 2017)
Beinart, W, ‘social history & African environments’ (Oxford University Press 2018).
Center financial intelligence,’ Guidance note no 4 of 2015 on the term transaction as applied
to accountable and reporting institutions’ (Butterworth 2015)

ESSAY 11
Hailsham, H, ‘The parole board’ (Butterworth 2018)
Hicks, AD, ‘Extreme long sentence in Namibia’ (Oxford University Press 2014)
Jackson, N, ‘Criminal policy in Namibia’ (Princeton University Press 2015)
Journal Articles
Henry, J, ‘Reducing severe sentences’ [2015] Criminology & public policy 14.
Kathuria, A, and Porporino, FJ, ‘Implementing information technology for corrections in
Africa: A case example of Namibian Correctional Service automated offender management
information system’ [2015] Acta criminological: southern African journal of criminology 21.
Kazembe, L, and Neema, I, ‘Drugs and drug control in Namibia’ [2016] Pan African issues in
drugs and drug control: An international perspective 78.
Miller, K,’ curriculum development around parenting strategies to prevent and respond to
child sexual abuse in Africa’ [2015] Journal of child sexual abuse 24.
Nurmikko Metsola, S, ‘Repression and long term political leadership’ [2018] Defence and
peace economics 20.
Pratt, J, ‘New Zealand penal policy in twenty first century’ [2017] the Palgrave handbook of
Australia and New Zealand criminology 47.
Sarkin, J, ‘why establishing a credible and legitimate transitional justice model in conjunction
with democratic reforms is necessary for long term peace and stability in Uganda’ [2016]
Southern African public law 31.
Xiumei, W, ‘is life imprisonment without parole or commutation an effective anti-corruption
measure for china’ [2017] JACL 1.
Websites and Blogs
CRIN (2017) <https://www.crin.org/en/library/legal-database/state-v-vries> accessed on 18
June 2018
.