Three inmates serving unusually long prison terms they received at the end of trials in the High Court are now awaiting a Supreme Court decision on their appeals against their sentences.
Oral arguments on the appeals of prison inmates Tuhafeni Kutamudi, Fillemon Nkandi and Elifas Ndalusha were heard by acting judges of appeal Theo Frank, Hosea Angula and Rita Makarau in the Supreme Court in Windhoek last Thursday.
The court reserved its judgement at the end of the hearing.
Kutamudi is serving a sentence of 85 years’ imprisonment, which he received at the end of his trial in the Windhoek High Court in July 2005.
He was sentenced after he had been convicted of three murders, committed when he stabbed three people to death at a village in the Ohangwena region in September 2002.
Nkandi was sentenced to an effective prison term of 70 years at the conclusion of his trial in the Oshakati High Court in June 2020.
He had used a shotgun to murder two people – a 61-year-old woman and her 29-year-old son – at a village in the Oshigambo area of the Oshikoto region in March 2012.
Ndalusha was part of a group of four men who robbed and killed an off-duty police officer at a gambling house and bar in Windhoek in May 2002.
He was sentenced in the Windhoek High Court to an effective prison term of 44 years in December 2005.
The three inmates’ appeals against their sentences were heard as a consequence of a judgement in which the Supreme Court ruled in February 2018 that prison terms exceeding the expected lifespan of an offender are not constitutional.
In that judgement, the court found that prison terms that would leave the sentenced offender without a realistic hope of ever being released from prison amount to cruel, degrading and inhuman punishment and infringe on the prisoner’s constitutional right to human dignity.
Kutamudi’s lawyer, Mbanga Siyomunji, argued during the hearing of the three appeals that two of the sentences imposed on Kutamudi should be ordered to run concurrently with his sentence on the first count of murder, which is 30 years’ imprisonment.
That would leave Kutamudi with an effective prison term of 30 years.
Nkandi’s lawyer, Grace Mugaviri, noted that he was 46 years old when he was sentenced to the effective prison term of 70 years that he is currently serving.
She suggested that he be sentenced to life imprisonment on each of the two murder charges on which he was convicted.
In terms of the current law, an offender sentenced to life imprisonment becomes eligible to be considered for release on parole after spending 25 years in prison.
All of the crimes of which Ndalusha was convicted were committed in one transaction, his lawyer, Salomon Kanyemba, argued.
He proposed the appeals court should order that the sentences which Ndalusha received on two charges of robbery with aggravating circumstances and a charge of defeating the course of justice should run concurrently with his 30-year prison term on a charge of murder.
That would leave Ndalusha with an effective sentence of 30 years’ imprisonment, which Kanyemba also suggested should be backdated to come into operation from the time of his arrest in 2002, rather than his sentencing in 2005.
South African senior counsel William Mokhare, who represented the state assisted by Veiko Alexander, said the state has no problem with the court’s previous ruling that a prison term exceeding the natural lifespan of an offender would be unconstitutional.
Under Namibian law, the most severe sentence a court may impose is one of life imprisonment, Mokhare noted.
That is a sentence that should not be shied away from when it is warranted, he remarked.
The principle when sentencing an offender should be that the person should not be given a prison term going beyond their expected remaining lifespan, Mokhare argued.
However, what that lifespan would be would differ depending on the age of an offender, and a court would in some instances be justified to impose sentences longer than the effective minimum period of 25 years’ imprisonment to which a life term of imprisonment equates, he said.
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