Child rape trial nears crucial point

THE High Court trial of alleged child rapist and murderer Lesley Kukame is heading for a key ruling in early December.

Former security guard Kukame is set to hear on December 3 whether a collection of statements in which he is claimed to have confessed his guilt will be admitted as evidence in his trial in the High Court in Windhoek. The ruling that Judge Kato van Niekerk is scheduled to give in three weeks’ time might determine the outcome of the trial in which Kukame (27) is accused of abducting, raping and killing a three-and-a-half-year-old girl in Katutura in early 2005.Kukame pleaded not guilty to counts of murder, rape and abduction, alternatively kidnapping, when his trial started before Judge Van Niekerk on September 24.He is accused of abducting or kidnapping the child from a house in Independence Avenue in Katutura between February 7 and 10 2005.He is further accused of sodomising and strangling or suffocating the child in a service room attached to the disused Katutura Cinema Hall, which is next to the house from where the girl vanished, during the same period.Kukame was stationed at the Katutura Cinema Hall, where the girl’s body was found on February 10 2005, as a security guard during the days that she disappeared.Most of his trial so far has been devoted to the hearing of a trial within a trial in which Judge Van Niekerk will have to decide if allegedly self-incriminating statements that Kukame made in the two days after his arrest on the evening of February 10 2005 may be used as evidence against him.The trial within a trial resulted from an objection from Kukame’s defence lawyer, Ivo dos Santos, against State advocate Dominic Lisulo introducing evidence about the contents of the statements that were made by Kukame.Dos Santos told the Judge that these statements were not made freely and voluntarily, were made under undue influence, and that Kukame’s constitutional rights were breached with him specifically being denied the right to a fair trial, as he was not given an opportunity to consult a lawyer before he made the statements.In the 36 hours after his arrest, Kukame made admissions to Detective Warrant Officer Geoffrey Scott, admissions and a statement – written by Kukame in his own handwriting – to former Police Detective Chief Inspector Nelius Becker, a confession to Chief Inspector Peter Oelofse, and showed points at the alleged crime scene to another Police officer, Chief Inspector Ivan Amwela, Dos Santos pointed out to Judge Van Niekerk when he addressed her Thursday and Friday last week on the ruling that is to be made in four weeks’ time.All of these allegedly self-incriminating statements should not be admitted as evidence against Kukame Dos Santos argued.He argued that threats and an assault that Kukame claims to have suffered when he was first questioned by Scott and other Police officers on the evening after his arrest were still having a fearful effect on Kukame up to two days later.Kukame claims he was handcuffed in a way that left him in a contorted posture, with one arm having to reach over his shoulder so that his wrists could be cuffed to each other in a painful position behind his back.The only reasonable explanation he could think of for this method of handcuffing and the rough and violent treatment Kukame said he received from Police officers when he was interrogated, was that it was meant to intimidate, degrade, humiliate and cause pain to Kukame, Dos Santos said.It was meant to torture Kukame and induce him to confess, Dos Santos argued.He told Judge Van Niekerk: “The actions of the Police were intimidatory to an extreme extent.”With Namibia’s Constitution prohibiting torture and the use of evidence obtained as a result of torture, statements that Kukame made in the wake of this alleged torture, while the shadow of this treatment was still hanging over him, should be excluded from the trial, Dos Santos argued.Before he made the alleged confession to Oelofse, Kukame answered “yes” when he was asked whether he wanted legal representation.Kukame however also said that he still wanted to make a statement when Oelofse continued to question him before taking down the alleged confession.Dos Santos argued that Oelofse was supposed to have stopped the process immediately after Kukame said he wanted to have legal representation, and that the failure to first give Kukame a chance to get legal representation amounted to a violation of his right to a fair trial.Lisulo argued that with the alleged confession made to Oelofse, Kukame had waived his right to legal representation by electing to still make a statement after he had been informed of his rights.With the alleged confession that he made after being questioned by Becker, Kukame had also been adequately advised of his rights, and he opted not to exercise these rights, Lisulo argued.He told the Judge that it was the prosecution’s case that Kukame had not been assaulted as claimed by him.Even if he had been assaulted, Lisulo added, he could not see how that assault would have influenced him to still make self-incriminating statements to Becker, Oelofse and Amwela a day to two days later and after someone like Oelofse had for instance informed Kukame that he had nothing to fear and that if he wanted he could be given protection.Even if evidence had been obtained unconstitutionally, the court still had a discretion whether to allow that evidence to be admitted in the trial or not, Lisulo argued.”Fairness is a double-edged sword,” he told the Judge, saying that just like an accused person had the right to a fair trial, an accused person who is demonstrably guilty should not be allowed to escape being convicted just because evidence had been obtained irregularly against the accused.Kukame has been in custody since February 10 2005, and remains in the same position until his case returns to court.The ruling that Judge Kato van Niekerk is scheduled to give in three weeks’ time might determine the outcome of the trial in which Kukame (27) is accused of abducting, raping and killing a three-and-a-half-year-old girl in Katutura in early 2005.Kukame pleaded not guilty to counts of murder, rape and abduction, alternatively kidnapping, when his trial started before Judge Van Niekerk on September 24.He is accused of abducting or kidnapping the child from a house in Independence Avenue in Katutura between February 7 and 10 2005.He is further accused of sodomising and strangling or suffocating the child in a service room attached to the disused Katutura Cinema Hall, which is next to the house from where the girl vanished, during the same period.Kukame was stationed at the Katutura Cinema Hall, where the girl’s body was found on February 10 2005, as a security guard during the days that she disappeared.Most of his trial so far has been devoted to the hearing of a trial within a trial in which Judge Van Niekerk will have to decide if allegedly self-incriminating statements that Kukame made in the two days after his arrest on the evening of February 10 2005 may be used as evidence against him.The trial within a trial resulted from an objection from Kukame’s defence lawyer, Ivo dos Santos, against State advocate Dominic Lisulo introducing evidence about the contents of the statements that were made by Kukame.Dos Santos told the Judge that these statements were not made freely and voluntarily, were made under undue influence, and that Kukame’s constitutional rights were breached with him specifically being denied the right to a fair trial, as he was not given an opportunity to consult a lawyer before he made the statements.In the 36 hours after his arrest, Kukame made admissions to Detective Warrant Officer Geoffrey Scott, admissions and a statement – written by Kukame in his own handwriting – to former Police Detective Chief Inspector Nelius Becker, a confession to Chief Inspector Peter Oelofse, and showed points at the alleged crime scene to another Police officer, Chief Inspector Ivan Amwela, Dos Santos pointed out to Judge Van Niekerk when he addressed her Thursday and Friday last week on the ruling that is to be made in four w
eeks’ time.All of these allegedly self-incriminating statements should not be admitted as evidence against Kukame Dos Santos argued.He argued that threats and an assault that Kukame claims to have suffered when he was first questioned by Scott and other Police officers on the evening after his arrest were still having a fearful effect on Kukame up to two days later.Kukame claims he was handcuffed in a way that left him in a contorted posture, with one arm having to reach over his shoulder so that his wrists could be cuffed to each other in a painful position behind his back.The only reasonable explanation he could think of for this method of handcuffing and the rough and violent treatment Kukame said he received from Police officers when he was interrogated, was that it was meant to intimidate, degrade, humiliate and cause pain to Kukame, Dos Santos said.It was meant to torture Kukame and induce him to confess, Dos Santos argued.He told Judge Van Niekerk: “The actions of the Police were intimidatory to an extreme extent.”With Namibia’s Constitution prohibiting torture and the use of evidence obtained as a result of torture, statements that Kukame made in the wake of this alleged torture, while the shadow of this treatment was still hanging over him, should be excluded from the trial, Dos Santos argued.Before he made the alleged confession to Oelofse, Kukame answered “yes” when he was asked whether he wanted legal representation.Kukame however also said that he still wanted to make a statement when Oelofse continued to question him before taking down the alleged confession.Dos Santos argued that Oelofse was supposed to have stopped the process immediately after Kukame said he wanted to have legal representation, and that the failure to first give Kukame a chance to get legal representation amounted to a violation of his right to a fair trial.Lisulo argued that with the alleged confession made to Oelofse, Kukame had waived his right to legal representation by electing to still make a statement after he had been informed of his rights.With the alleged confession that he made after being questioned by Becker, Kukame had also been adequately advised of his rights, and he opted not to exercise these rights, Lisulo argued.He told the Judge that it was the prosecution’s case that Kukame had not been assaulted as claimed by him.Even if he had been assaulted, Lisulo added, he could not see how that assault would have influenced him to still make self-incriminating statements to Becker, Oelofse and Amwela a day to two days later and after someone like Oelofse had for instance informed Kukame that he had nothing to fear and that if he wanted he could be given protection.Even if evidence had been obtained unconstitutionally, the court still had a discretion whether to allow that evidence to be admitted in the trial or not, Lisulo argued.”Fairness is a double-edged sword,” he told the Judge, saying that just like an accused person had the right to a fair trial, an accused person who is demonstrably guilty should not be allowed to escape being convicted just because evidence had been obtained irregularly against the accused.Kukame has been in custody since February 10 2005, and remains in the same position until his case returns to court.