THE constitutionality of jail terms that exceed the expected lifespan of long-term prison inmates will be weighed up by five judges of the Supreme Court following an appeal hearing yesterday.
Two of the three lawyers whose oral arguments were heard by a five-judge bench of the Supreme Court yesterday agreed that prison terms longer than the life expectancy of sentenced offenders, leaving them with no hope of eventually being released from jail, were unconstitutional in Namibia.
Instead of such long jail terms, a sentence of life imprisonment is supposed to be the harshest sentence a court can impose on an offender, and would in terms of the law still leave a sentenced person with the hope of being considered for release on parole after having served 25 years, South African senior counsel Piet van Wyk, representing the attorney general, and legal counsel Werner Boesak, representing four long-term prison inmates appealing against their sentences, agreed in their arguments.
Deputy prosecutor general Dominic Lisulo, who represented the state, also agreed that life imprisonment was the most severe sentence a court in Namibia should impose. Lisulo further agreed a sentence that removed all hope a prisoner might have had of being released one day would not be appropriate, but added that in the case at hand, the state had no problem with the sentences against which the four inmates were appealing.
Namibian society had a legitimate expectation that the courts had to impose sentences that would protect society from criminals who commit the most heinous of crimes,
Lisulo argued. If there was a problem with the sentences, that problem lay with the parole system, he added.
The four appellants in the matter were sentenced to effective prison terms of 67 years and 64 years at the end of their trial in the Windhoek High Court in February 2002, after they had been convicted of having robbed and murdered an elderly couple at a farm in the Okahandja district in April 2000.
The trial judge described the deadly night-time attack which the four had carried out on 79-year-old farmer Wilhelm Adrian and his 77-year-old wife, Ottilie Adrian, as "heartless and horrific" before he sentenced Gaingob, Haufiku and Kheibeb to an effective 67 years' imprisonment each, while Urikhob was sentenced to 64 years in prison.
In terms of Namibia's Correctional Service Act of 2012 and a regulation published under that law, someone sentenced to life imprisonment after 15 August 1999, which was when the previous Prisons Act came into force, would be eligible for release on parole or probation after serving at least 25 years in prison without committing or being convicted of any crime or offence during that period.
Someone not sentenced to life imprisonment, but instead given a jail term of 20 years or longer, would in terms of the law become eligible for release on parole or probation after having served two-thirds of their sentence.
Boesak noted that the effect of that part of the law was that Gaingob, Haufiku and Kheibeb would become eligible for parole only after 44-and-a-half years in prison, while Urikhob would have to wait for 42-and-a-half years before he might be released on parole.
It was inherently unfair that an offender sentenced to such a long period of imprisonment would have to wait longer to be eligible for parole than someone sentenced to life imprisonment, Boesak argued.
The prison authorities are also not in favour of extra-long prison terms, because these had the effect of being a barrier to the rehabilitation of long-term prisoners, Namibian Correctional Service commissioner general Raphael Hamunyela indicated in a letter submitted to the court.
"Sentences should be of such a nature that a sentenced offender still has hope for life after release from the correctional facility," Hamunyela stated.
Chief Justice Peter Shivute, appeal judges Dave Smuts and Elton Hoff, and acting judges of appeal Theo Frank and Yvonne Mokgoro reserved their judgement after hearing arguments on the appeal.