‘Cowboy’ cops told to stop ‘outlaw’ ways

A LATE-NIGHT violation of the constitutional rights of a Swakopmund resident by members of the Namibian Police is set to cost the Namibian public more than N$22 000.

In a judgement handed down in the High Court in Windhoek, retired Acting Judge Simpson Mtambanengwe warns that at least some members of the Namibian Police seem to believe that laws can simply be ignored when the Police carry out their duties. This attitude is saddling Government with an unnecessary financial burden in the form of damages that have to be paid to people whose rights are trampled on, he said.These costs could be avoided if the Police were more conscientious when they carried out their duties, Acting Judge Mtambanengwe advised in a ruling this month.He also warned that the days when the Police or other officials could approach their duties with an attitude that they were a law unto themselves were gone forever.The rule of law binds and must guide everyone under Namibia’s Constitution – and this, of course, includes not just the Namibian Police but also other parts of the country’s officialdom, he cautioned.Acting Judge Mtambanengwe made these remarks in his judgement on a claim for damages that a Swakopmund resident, Filemon Nampala Namweya, instituted against the Ministry of Home Affairs – then still the ministry that was responsible for the Namibian Police – after members of the Namibian Police conducted a warrantless search of his home in the early morning hours of July 8 2002.Namweya claimed that the Police officers broke open an entrance door to his house at about 03h00 on July 8 2002 and started searching the house – in the process breaking a headboard standing behind his bed – without informing him of the nature of the search or presenting any search warrant to him.Lawyers representing the Minister admitted that a search was conducted without a search warrant, but claimed that the search was carried out “in an orderly fashion” without any damage to property.They claimed that Namweya had given his consent for the search and that the Police officers involved in the incident “genuinely believed that a delay in obtaining a search warrant would have defeated the object of the search”.Namweya had already testified and closed his case, and the first witness for the Minister was still giving evidence under cross-examination, when the Minister’s lawyers filed a notice with the High Court in which they offered to pay Namweya N$15 000 as a full and final settlement of the case.Namweya declined the offer.In his testimony, Namweya adamantly denied that he had consented to the search.Namweya, who was employed at the Ministry of Works at the time of the incident, told the court that the treatment that the Police officers meted out to him made him lose trust in the Police, feel disrespected as a human being and feel that he was being treated like a criminal.Even worse, he told the court, his neighbours’ attitude towards him changed after the incident and they also appeared to have started regarding him as a criminal.Police witnesses told the court that the search was meant to find evidence that Namweya was illegally dealing in liquor and drugs.Not only was no such evidence found, but Acting Judge Mtambanengwe also came to the conclusion that during the hearing of the case the Police further lied in an effort to besmirch Namweya’s reputation, that there was no reason why the search had to be conducted without a search warrant, and that a Police witness lied to the court when he claimed that a delay in obtaining a search warrant would have defeated the object of the search.On the evidence as a whole, he stated in his judgement, he was justified to find that the search was arbitrary.The judge awarded damages of N$22 000 to Namweya, and also ordered the Minister to pay Namweya’s legal costs.The Minister – or, in effect, the Namibian public treasury – could have been even worse off, the court also indicated.Had Namweya made a proper application for the size of his claim against the Minister to be increased from N$22 000 to N$50 000 – his lawyers failed with such a move because the correct procedures were not followed – he would have awarded Namweya damages in such a higher amount, Acting Judge Mtambanengwe stated.Windhoek law firm Kirsten & Co represented Namweya.Government lawyer Gerson Narib represented the Minister.This attitude is saddling Government with an unnecessary financial burden in the form of damages that have to be paid to people whose rights are trampled on, he said.These costs could be avoided if the Police were more conscientious when they carried out their duties, Acting Judge Mtambanengwe advised in a ruling this month.He also warned that the days when the Police or other officials could approach their duties with an attitude that they were a law unto themselves were gone forever.The rule of law binds and must guide everyone under Namibia’s Constitution – and this, of course, includes not just the Namibian Police but also other parts of the country’s officialdom, he cautioned.Acting Judge Mtambanengwe made these remarks in his judgement on a claim for damages that a Swakopmund resident, Filemon Nampala Namweya, instituted against the Ministry of Home Affairs – then still the ministry that was responsible for the Namibian Police – after members of the Namibian Police conducted a warrantless search of his home in the early morning hours of July 8 2002.Namweya claimed that the Police officers broke open an entrance door to his house at about 03h00 on July 8 2002 and started searching the house – in the process breaking a headboard standing behind his bed – without informing him of the nature of the search or presenting any search warrant to him.Lawyers representing the Minister admitted that a search was conducted without a search warrant, but claimed that the search was carried out “in an orderly fashion” without any damage to property.They claimed that Namweya had given his consent for the search and that the Police officers involved in the incident “genuinely believed that a delay in obtaining a search warrant would have defeated the object of the search”.Namweya had already testified and closed his case, and the first witness for the Minister was still giving evidence under cross-examination, when the Minister’s lawyers filed a notice with the High Court in which they offered to pay Namweya N$15 000 as a full and final settlement of the case.Namweya declined the offer.In his testimony, Namweya adamantly denied that he had consented to the search.Namweya, who was employed at the Ministry of Works at the time of the incident, told the court that the treatment that the Police officers meted out to him made him lose trust in the Police, feel disrespected as a human being and feel that he was being treated like a criminal.Even worse, he told the court, his neighbours’ attitude towards him changed after the incident and they also appeared to have started regarding him as a criminal.Police witnesses told the court that the search was meant to find evidence that Namweya was illegally dealing in liquor and drugs.Not only was no such evidence found, but Acting Judge Mtambanengwe also came to the conclusion that during the hearing of the case the Police further lied in an effort to besmirch Namweya’s reputation, that there was no reason why the search had to be conducted without a search warrant, and that a Police witness lied to the court when he claimed that a delay in obtaining a search warrant would have defeated the object of the search.On the evidence as a whole, he stated in his judgement, he was justified to find that the search was arbitrary.The judge awarded damages of N$22 000 to Namweya, and also ordered the Minister to pay Namweya’s legal costs.The Minister – or, in effect, the Namibian public treasury – could have been even worse off, the court also indicated.Had Namweya made a proper application for the size of his claim against the Minister to be increased from N$22 000 to N$50 000 – his lawyers failed with such a move because the correct procedures were not followed – he would have awarded Namweya damage
s in such a higher amount, Acting Judge Mtambanengwe stated.Windhoek law firm Kirsten & Co represented Namweya.Government lawyer Gerson Narib represented the Minister.