With the handing down of two judgements dealing with a key part of the Constitution's provision of the right to a fair trial - the right to be tried within a reasonable time - the Supreme Court last week clarified a legal debate which has been going on in the High Court since the early 1990s.

A succession of judges who have dealt with the issue were unable to agree on the meaning of the Constitution's guarantee of the right to a speedy trial.

Different benches of the High Court have ruled either that this meant that an aggrieved person could be granted a permanent stay of prosecution, or that such a permanent stay was not possible under Namibian law.

With last week's pronouncements from the Supreme Court, Acting Judge of Appeal Bryan O'Linn settled the issue in two extensive judgements.

He ruled that a permanent stay of prosecution would indeed be one of the options available to see to it that the right to be tried within a reasonable time is respected and carried out. Chief Justice Johan Strydom and Acting Judge of Appeal Fred Chomba concurred with his two judgements.

The rulings came in the appeal cases of former transport operator Pieter Johan Myburgh, who has been convicted in the High Court on charges of fraud, and former development aid worker Margaret Malama-Kean, who faces fraud charges related to the alleged misappropriation of some N$2,8 million from a non-governmental organisation, CD Namibia, at Oshakati.

Both Myburgh and Malama-Kean appealed to the Supreme Court after they had failed in previous courts with applications to have the prosecutions against themselves stopped permanently.

The Supreme Court, too, refused to grant either of them a permanent stay of prosecution. In the process the court nevertheless cleared up the question of whether a permanent stay of prosecution is an option where an accused person claims he or she will not be able to receive a fair trial because it has been delayed for too long.

The Constitution is somewhat ambiguous on this score, merely stating that a trial "shall take place within a reasonable time, failing which the accused shall be released".

Acting Judge O'Linn pointed out that Namibia's Constitution is unique in its inclusion of a mandatory remedy - "shall be released" - in the event of a trial not taking place within a reasonable time.

The trick lies in what the Constitution-makers meant with that "released".
Courts will first have to make the difficult enquiry of determining if a trial started within a reasonable time or not.

This will depend on facts such as the length of the delay before the start of a trial, the reasons for the delay and whether an accused person or the prosecution is responsible for it, and what prejudice this entailed for an accused person, so that the meaning of "reasonable" will have to be determined according to the facts of each individual case, Acting Appeal Judge O'Linn indicated.

"Released," he ruled, clearly includes the "extreme, radical and exceptional remedy" of a permanent stay of prosecution as an option, but this will certainly have to be reserved for only "the most exceptional and extreme cases of unreasonable delay". It will also be a remedy that only the High Court, and not lower courts, will be able to offer, he added.

In other circumstances an accused will be able to receive a release in the form of for example a release from custody, a release from bail conditions, or being acquitted after pleading to a charge but before a trial had been concluded.

What form the release would take will depend on the degree of prejudice an accused person has suffered because of the delay in a trial, and on the jurisdiction of the court considering the issue, Acting Judge of Appeal O'Linn stated.

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