Windhoek — Bail for the two remaining suspects in a double murder case was refused yesterday by Judge Nate Ndauendapo because "it will not be in the interest of justice."
The accused, Rafael Kahinatjo (47) and Gabriel Uazeua (35) launched a fresh bail application after it was established that the main accused in their trial, 32-year-old Ebson Tumbireeko, also known as Daniel Kavari, is hiding in Angola.
Timbureeko escaped from custody in February 2010 and has since evaded the police resulting in various postponements of the trial, while he continues to evade re-arrest. Kahinatjo and Uazeua have so far spent three years and eight months in jail following their arrest in April 2009.
Their defence counsel, Lucia Hamutenya, told the court it is grossly unfair to her clients to "rot" in jail, while the State "is slow in their conduct to re-arrest Timbureeko". She maintained her clients' right to a fair trial within a reasonable period is seriously being infringed upon.
She told Judge Ndauendapo that the State cannot be allowed to benefit from their own ineptitude to bring the matter to a conclusion. While she accepts that the charges are very serious, Hamutenya argued that this case has "peculiar circumstances".
She argued that a balance should be found between the State's fear that the accused will abscond and interfere with witnesses and the accused persons' right to liberty.
The defence lawyer also took issue with a statement by the investigating officer that Kahinatjo was arrested at or near a border of Namibia, when in fact he was arrested a mere 50km from Windhoek at Auas Poort near the Groot Aub settlement.
Hamutenya noted most workers in Namibia go where employment is and said her clients are migratory workers, but that means that they could only report to a different police station if granted bail with conditions. She argued that the interest of justice is not only about the State and society at large, but also about the accused on the premise that an accused is innocent until proven guilty.
State Prosecutor, Ethel Ndlovu, in opposing bail argued that nothing has changed from the previous time the accused applied for bail. The fact that information has surfaced that Timbureeko is in Angola was not deliberately withheld from the court and the defence to continue detaining the accused.
She told the court that a treaty exists between Namibia and Angola for the extradition of accused persons, but that the country applying for the extradition has to know the whereabouts of the said accused person. She further told the court that the accused are charged with vicious offences and that the seriousness of their crimes far outweigh their right to liberty.
According to Ndlovu, major progress has been made in the tracing of Timbureeko. The three men face two counts of murder, one count of conspiracy to rob, three counts of housebreaking with intent to rob and robbery and two counts of possessing a firearm and ammunition without a licence.
They are accused of murdering elderly farming couple Jan Hendrik (Jannie) Kruger, aged 80, and his wife 73-year-old Johanna Jacoba (Toets) Kruger at their farm - Farm Parry - in the Omaruru area during the night of March 12 to 13, 2009.
It is further alleged that the couple's farmhouse was then ransacked and goods including two firearms and a briefcase were stolen from them.
In a previous court appearance Ndlovu, told the court that the prosecution would have to drop the murder and robbery charges against Kahinatjo and Uazeua if their trial is separated from that of Tumbireeko.
On December 05, Judge Ndauendapo told the prosecution that he was fully aware of the seriousness of the charges and that he is granting the State a final postponement to locate Timbureeko.
Judge Ndauendapo gave the State until April 05 next year and ordered that if Tumbireeko is still not before court then the prosecution will have one of two choices, either proceed with its case against the other two men, or withdraw the charges against them.