8 September 2017

Namibia: Judge Reins in 'Police Outlaws and Sheriffs of Doom'

Photo: Pixabay
Judge's gavel.
column

Some judges, whether they are writing about grave rule of law issues, divorce or patents, have such a distinctive style that you know the author immediately. Judge Thomas Masuku is one of these.

Fired as a judge in Swaziland, an outrage that breached judicial independence not to mention his own rights, he is now a member of the Namibian Bench.

He has just delivered judgment in a case against two police officers from the serious crime unit in Windhoek that illustrates both his distinctive style and his tough line on police brutality. Swaziland's loss is the gain of both Namibia and human rights on the continent.

The story concerns Benhardt Lazarus, hapless former owner of a 'house of merriment', as the judge put it. Until he was effectively driven out of business by the police, Lazarus ran the 'Havana Bar', a Windhoek shebeen. Then, on the morning of 29 October, 2014, he discovered a break-in. Money was missing. A lock to the jukebox was broken and the cash cleaned out of the device. A jackpot machine, owned by a client with whom he shared the profits, had disappeared.

He reported the theft to an officer of the serious crime unit, Sergeant Freddy Nghilinganya, who then went round to the bar with a colleague, Detective Sackey Kokule, to take his statement. From then on, Lazarus was harassed by the two men. They threatened him over the phone and claimed he was responsible for the break-in. But, as the judge put it, 'Worse was still in the pipeline!'

Not long afterwards they arrived at work, and in full view of patrons, staff and neighbours, they arrested and handcuffed him, without a warrant, took him to a police station and left him there, in the cells, for three days. Then they collected him and took him to his home which they proceeded to ransack, again without a warrant.

As Judge Masuku observed, 'there was more in the police storehouse'. The pattern continued, with these two police officers repeatedly threatening him, then arresting him for a few days. In all he was arrested and kept in cells on three occasions. On another occasion, as he tried to run away from the two men, they fired four shots at him - in the streets.

Summing up the feelings of Lazarus after the shooting, the judge commented: 'It was his evidence that he was completely petrified at the latest instalment of police action. His fear and resentment of the duet grew in leaps and bounds. He began to harbor feelings that were not in all the circumstances unreasonable, that they could even send him to the celestial jurisdiction.'

On another occasion, Lazarus' brother went to speak to the two officers, to ask to ask why they were hounding him. 'Unbelievably,' said the judge, 'the ... brother was given similar treatment! He was arrested and placed in handcuffs by the said officers and was kept manacled for the whole day.'

Then there was his car. The police impounded it - for no reason given and without a warrant - for 30 weeks. They took the vehicle when Lazarus was on his way to buy stock. Now the N$27 000 intended for the purchases is missing from the vehicle.

Finally, his attorney wrote to the inspector-general of the Namibian police, claiming damages for wrongful arrest and detention, but the very next day the 'notorious two officers' went to his bar and again arrested and held him for several days.

When the case came to court earlier this year, the police denied none of the key facts alleged by Lazarus so the judge said his claims about harassment and multiple arrest had to stand.

He added: 'I have never dealt with or even read a case involving police and liberty of an individual that has been so depraved.' They regarded the 'liberty and dignity' of Lazarus as 'trifling, as they traveled on an ego trip to show that they were above and beyond any level of accountability and that (he) was a pawn and they could do with him as they pleased'.

The only inference to be drawn from the third arrest of Lazarus, immediately after his lawyer informed the authorities of his claim for the ongoing illegal arrests and detention, is that they hoped to pressure him into withdrawing his intended legal action.

He called it 'despicable conduct', 'irresponsible behavior', adding: 'The police must be reined in and should not be allowed to behave like outlaws and sheriffs of doom in the Wild West.' Listing all the affronts committed by the two officers and the infringements to Lazarus's constitutional rights, the judge awarded him N$300 000 in damages, a further N$90 000 in loss of profit, and ordered that he be given back the N$27 000 missing from his car.

But the best was yet to come. He could have granted costs on a punitive scale, he said, 'to drive home the unacceptable and iniquitous actions of the police officer in this matter'. Though, 'sadly', Lazarus had not applied for such costs, this was not the end of the matter. It would be irresponsible of the court to allow the two 'to go home scot free'.

Given their 'depraved conduct', the court called on them to show cause why punitive costs should not be awarded - 'considering that the issue of costs is within the discretion of the court' - and why they should not personally pay these costs. 'It would be unconscionable to allow tax-payers to foot the entire bill of the officers' ego trip.'

Government employees 'must from now on know that if they act in a manner that is despicable and contrary to what they were employed to do, the message will be sent home that officers who behave in such a fashion will have to pay a personal price and will not have the public purse pay a reward for their indiscretions'. In addition to the pending costs order, the inspector-general should take any further action against the pair that he thought fit. In particular, action should be considered in relation to the N$27 000 'gone missing' from Lazarus's car: 'This money remains unaccounted for and the finding that the officers appropriated it is unmistakable.'

So, the two disgraced officers must file their response by 27 September, showing why they should not be held personally responsible for punitive costs. The court also stipulated that all their legal costs related to this issue, as well as representation on 4 October when the matter will be heard, are for their own account.

What possible defence will they have to their hounding of Lazarus? The 'disappeared' N$27 000? The manacling of his brother? The gunshots in the street? I can't wait to find out.

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