20 June 2018

Namibia: Ex-Cop's Jail Term for Murder Cut On Appeal

A FORMER policeman who killed a young man in a street shooting in Windhoek nearly five years ago has received a reduction of three years from the 18-year prison term to which he was sentenced at the end of his trial last year.

Former police constable Linus Nzwana was correctly convicted of murder during his trial in the Windhoek Regional Court, judge Alfred Siboleka found in an appeal judgement delivered in the Windhoek High Court at the end of last week.

Judge Siboleka, with judge Nate Ndauendapo agreeing with his decision, dismissed Nzwana's appeal against his conviction, but upheld his appeal against his sentence, reducing it from an effective prison term of 18 years to 15 years.

Nzwana claimed during his trial that he was acting in self-defence when he shot a 22-year-old man, Martin Fiindje Joel, in the chest in the Shandumbala area of Katutura in Windhoek on 10 August 2013. The shot was fatal.

From the evidence placed before the court during Nzwana's trial, it was clear the prosecution proved beyond reasonable doubt that there was no attack or imminent attack by Joel on Nzwana, with the result that he could not have been acting in self-defence when he shot Joel, judge Siboleka remarked in the appeal judgement. The judge also said Nzwana had no justifiable reason to shoot and kill Joel in the circumstances in which they had an encounter on a street in Shandumbala.

When he testified in his defence during his trial, Nzwana told the court he tried to shoot at Joel's right arm or hand in an attempt to defend himself because it looked to him like Joel was about to hit him with a bottle that he had in his right hand. The shot that was fired struck Joel on the right side of his chest, though, ending his life.

Three other witnesses, who had been walking with Joel along the street where their and Nzwana's paths crossed, also told the court that Joel was carrying a bottle with him before he was shot. However, they disputed the claim that the fatal shot was fired after Joel had taken a swing at Nzwana with the bottle.

The witnesses testified that a bakkie approached them at speed from the front while they were walking along the street. As the bakkie passed them, Joel shouted "voetsek" towards the vehicle, which was then brought to a halt and reversed to where Joel was, the three witnesses said.

The witnesses also told the court that Nzwana got out of the bakkie, spoke to Joel, and went back to the vehicle, into which he leaned to take out a firearm, judge Siboleka recounted. The witnesses further said Joel was standing quietly with his arms folded across his chest when Nzwana approached him and shot him in the chest.

After firing the shot, Nzwana got back into the bakkie and drove away.

Judge Siboleka noted that Nzwana ignored the police's code of conduct by not firing any warning shots if he was threatened by Joel as claimed by him, and concluded that Joel did not attack or try to attack him before he fired the fatal shot. Given Nzwana's circumstances, though - he was a first-time offender at the age of 30, a breadwinner for his family, and the father of sons aged four and two at the time he was sentenced - the judges decided to change his sentence on appeal.

Nzwana was initially sentenced in April last year to 20 years' imprisonment, of which two years were suspended for five years. The two judges increased the suspended portion of the sentence to five years, leaving Nzwana with an effective sentence of 15 years' imprisonment.

Defence lawyer Boris Isaacks represented Nzwana in the appeal. Seredine Jacobs represented the state.

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