7 March 2018

Namibia: Lawyers Want Judge Off Murder Plot Trial

The defence lawyers involved in the trial of six people accused of taking part in a conspiracy to murder the husband of one of them in March 2015 now want the judge presiding over their case to step down from the matter.

Defence lawyer Milton Engelbrecht, supported by his defence colleagues, informed acting judge Johanna Salionga in the Windhoek High Court yesterday that he had instructions from his client, Annastancia Lubinda, to apply for the judge's recusal from the trial.

The announcement by Engelbrecht and his colleagues came a day after acting judge Salionga ruled that alleged confessions made by three of the six accused on trial before her may be used by the prosecution as evidence.

Engelbrecht said he was given the instruction to ask for the judge's recusal after he read her ruling, and had a consultation with Lubinda about it.

Fellow defence lawyer Trevor Brockerhoff, who is representing the second accused, David Matali, said he, too, had instructions to apply for the judge's recusal on the basis of bias and a conflict of interest.

Defence lawyers Tuna Nhinda, Meriam Kenaruzo and Natji Tjirera also gave notice that they intend to ask acting judge Salionga to step down from the trial, which started in November last year.

The recusal application is scheduled to be heard on 26 March.

The state is alleging that Lubinda (36), Matali (47), David Kondjara (36), Abiud Uazeua (37), Donald Hindjou (28) and Dollam Tjitjahuma (29) hatched a plot to murder Lubinda's husband, Peter Riscoh Muleke (36), and that they carried out their plan during the night of 29 to 30 March 2015 by killing Muleke in the Goreangab Dam area in Windhoek.

Muleke was allegedly stoned to death before his killers also stole his cellphone and its SIM card.

The six accused denied guilt on charges of murder, conspiracy to commit murder, and robbery with aggravating circumstances at the start of their trial four months ago.

Lubinda, Kondjara and Hindjou each made a self-incriminating statement in front of a magistrate shortly after their arrests at the beginning of April 2015.

With their defence lawyers disputing that their alleged confessions had been made freely and voluntarily, a side hearing to determine if the prosecution should be allowed to use the statements as evidence in the trial took place before acting judge Salionga delivered her ruling on Monday.

In her ruling, acting judge Salionga said it was highly unlikely that the senior and experienced magistrates who recorded the alleged confessions made by Lubinda, Kondjara and Hindjou did not explain their constitutional rights to them before they made their statements.

She also said claims by Lubinda, Kondjara and Hindjou that their rights were not explained to them before they made the statements recorded by the magistrates were improbable, and further found that their allegations that they had been assaulted before they were taken to make confessions were a fabrication.

Acting judge Salionga said she was satisfied that the alleged confessions had been made freely and voluntarily, that the three accused were in their sound and sober senses, and that they had not been unduly influenced to make the statements.

With the statements having been ruled admissible, the magistrate who recorded Lubinda's confession was due to be called to the witness stand to read the contents of her statement into the trial record yesterday. The defence lawyers' playing of the recusal card put the magistrate's testimony on hold, though.

The six accused are being kept in custody.

State advocate Marthino Olivier is prosecuting.

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