Court frees boy prisoner

THE High Court yesterday ordered the immediate release of a 12-year-old boy who became Namibia’s youngest sentenced prison inmate after receiving a six-month jail term for housebreaking and theft at Karasburg in October.

In a review judgement handed down by Judge Elton Hoff, Acting Judge Claus Hinrichsen set aside the boy’s conviction and sentence and ordered his immediate release from detention. Judge Hoff agreed with Acting Judge Hinrichsen’s decision, which was based on the principle that a child as young as the boy is presumed not to be criminally liable, especially where he had been involved in a crime while under the influence and instructions of a much older person.The boy was sentenced to six months’ imprisonment on October 19, after he had been convicted in the Karasburg Magistrate’s Court on a charge of housebreaking with intent to steal and theft.Evidently coming from a very difficult domestic background – his mother has died, his father is disabled, and the boy had been exhibiting behavioural problems, the court was informed in brief reports from his school and a Karas regional school counsellor – a recommendation was made, and followed by the Magistrate, that the boy should be sent to the Elizabeth Nepemba Juvenile Rehabilitation Centre near Rundu.LACK OF FACILITIES Events that followed, though, have exposed the dire lack of proper rehabilitation facilities and programmes for juvenile offenders in Namibia.Following his sentencing, the boy was first kept at Keetmanshoop Prison before he was transferred to Hardap Prison near Mariental two weeks ago.The prison authorities have indicated that Elizabeth Nepemba Juvenile Rehabilitation Centre is not yet fully operational and that the Prison Service first wanted to have the boy under the observation of a social worker at Hardap Prison before deciding what was to be done with him for the remainder of his jail term.The prison authorities reported that on Thursday last week, the boy was found making preparations for a suspected suicide bid by putting his prison bed upright against a wall and tying a torn strip of blanket to the top end of the bed, apparently intending to hang himself.After this event, he was transferred to Mariental State Hospital – and not the hospital unit of Hardap Prison as was mistakenly reported in The Namibian on Tuesday – to be kept under medical observation.The boy was returned to Hardap Prison, where he has been kept separate from adult and other juvenile prisoners, on Tuesday this week, the Namibian Prison Service’s Deputy Commissioner Tuhafeni Hangula said yesterday.Hangula added that the boy was released into the care of The Bridge, a Mariental-based organisation doing prisoner rehabilitation work, yesterday.CONFUSION OVER AGE In the review judgement given in the High Court yesterday, Acting Judge Hinrichsen noted that there had been some discrepancies concerning the boy’s age during his trial.While the boy himself and his father told the court that he was 14, both the school counsellor who submitted a report to the court and the boy’s school reported to the court that he was 12 years old.Acting Judge Hinrichsen stated that on the issue of his age, the boy would enjoy the benefit of the doubt, and for the purposes of the judgement he would be treated as a 12-year-old.Namibian law still follows a principle that a child under the age of seven cannot be held criminally liable.A child between seven and 14 is presumed not to be criminally accountable, but this presumption can be rebutted, the Acting Judge noted.Acting Judge Hinrichsen further noted that during his trial, Magistrate M Dube remarked that the boy had appeared in the same court on two previous occasions, and that the charges that he faced then were withdrawn on each occasion on the understanding that he was young and that his father was disabled and unable to provide for him.In fact, with this latest case, Acting Judge Hinrichsen added, the boy’s father supported the recommendation that his son should be sent to a prison school – “not permanently but enough to change him”, the father stated.In this case there were strong indications that the presumption of innocence may have been rebutted, Acting Judge Hinrichsen stated.Magistrate Dube rightly referred to the influential role that an older co-accused may have played in the break-in, and dealt with this issue in a caring manner, the Acting Judge commented.A 38-year-old man, Johannes Basson, was accused on the same charge as the boy, and was eventually sentenced to three years’ imprisonment.The Magistrate concluded that the plan to break into a shop at Karasburg early on the morning of August 18 was in all likelihood devised by Basson and that he took advantage of the boy by using him to take part in the burglary.Magistrate Dube correctly dealt with the issue of the much older co-accused, but did not correctly apply the law on that score, Acting Judge Hinrichsen stated.If the law was applied correctly, he indicated, it led to the conclusion that because of the influence an older person had over this child, the boy still could not be held criminally responsible.The boy was arrested on August 18.He was kept in Police custody until his trial was finalised and he was sent to prison.By the time of his release yesterday, he had spent almost 118 days behind bars.Judge Hoff agreed with Acting Judge Hinrichsen’s decision, which was based on the principle that a child as young as the boy is presumed not to be criminally liable, especially where he had been involved in a crime while under the influence and instructions of a much older person.The boy was sentenced to six months’ imprisonment on October 19, after he had been convicted in the Karasburg Magistrate’s Court on a charge of housebreaking with intent to steal and theft.Evidently coming from a very difficult domestic background – his mother has died, his father is disabled, and the boy had been exhibiting behavioural problems, the court was informed in brief reports from his school and a Karas regional school counsellor – a recommendation was made, and followed by the Magistrate, that the boy should be sent to the Elizabeth Nepemba Juvenile Rehabilitation Centre near Rundu.LACK OF FACILITIES Events that followed, though, have exposed the dire lack of proper rehabilitation facilities and programmes for juvenile offenders in Namibia. Following his sentencing, the boy was first kept at Keetmanshoop Prison before he was transferred to Hardap Prison near Mariental two weeks ago.The prison authorities have indicated that Elizabeth Nepemba Juvenile Rehabilitation Centre is not yet fully operational and that the Prison Service first wanted to have the boy under the observation of a social worker at Hardap Prison before deciding what was to be done with him for the remainder of his jail term. The prison authorities reported that on Thursday last week, the boy was found making preparations for a suspected suicide bid by putting his prison bed upright against a wall and tying a torn strip of blanket to the top end of the bed, apparently intending to hang himself.After this event, he was transferred to Mariental State Hospital – and not the hospital unit of Hardap Prison as was mistakenly reported in The Namibian on Tuesday – to be kept under medical observation.The boy was returned to Hardap Prison, where he has been kept separate from adult and other juvenile prisoners, on Tuesday this week, the Namibian Prison Service’s Deputy Commissioner Tuhafeni Hangula said yesterday.Hangula added that the boy was released into the care of The Bridge, a Mariental-based organisation doing prisoner rehabilitation work, yesterday.CONFUSION OVER AGE In the review judgement given in the High Court yesterday, Acting Judge Hinrichsen noted that there had been some discrepancies concerning the boy’s age during his trial.While the boy himself and his father told the court that he was 14, both the school counsellor who submitted a report to the court and the boy’s school reported to the court that he was 12 years old.Acting Judge Hinrichsen stated that on the issue of his age, the boy woul
d enjoy the benefit of the doubt, and for the purposes of the judgement he would be treated as a 12-year-old.Namibian law still follows a principle that a child under the age of seven cannot be held criminally liable.A child between seven and 14 is presumed not to be criminally accountable, but this presumption can be rebutted, the Acting Judge noted.Acting Judge Hinrichsen further noted that during his trial, Magistrate M Dube remarked that the boy had appeared in the same court on two previous occasions, and that the charges that he faced then were withdrawn on each occasion on the understanding that he was young and that his father was disabled and unable to provide for him.In fact, with this latest case, Acting Judge Hinrichsen added, the boy’s father supported the recommendation that his son should be sent to a prison school – “not permanently but enough to change him”, the father stated.In this case there were strong indications that the presumption of innocence may have been rebutted, Acting Judge Hinrichsen stated.Magistrate Dube rightly referred to the influential role that an older co-accused may have played in the break-in, and dealt with this issue in a caring manner, the Acting Judge commented.A 38-year-old man, Johannes Basson, was accused on the same charge as the boy, and was eventually sentenced to three years’ imprisonment.The Magistrate concluded that the plan to break into a shop at Karasburg early on the morning of August 18 was in all likelihood devised by Basson and that he took advantage of the boy by using him to take part in the burglary.Magistrate Dube correctly dealt with the issue of the much older co-accused, but did not correctly apply the law on that score, Acting Judge Hinrichsen stated.If the law was applied correctly, he indicated, it led to the conclusion that because of the influence an older person had over this child, the boy still could not be held criminally responsible.The boy was arrested on August 18.He was kept in Police custody until his trial was finalised and he was sent to prison.By the time of his release yesterday, he had spent almost 118 days behind bars.