A second attempt by former National Assembly member Geoffrey Mwilima to get a court order for his release from prison, where he is serving a sentence after being convicted of high treason and other charges, ended in failure in the Windhoek High Court on Friday.
The latest setback for Mwilima’s attempts to get an order for his release came in a judgement, in which judge Marlene Tommasi dismissed an application for Windhoek Correctional Facility medical officer Tony Lumbidi to be held in contempt of court. In her judgement, Tommasi found that Lumbidi did not fail to comply with a court order, issued in November last year, in which it was directed that he should determine whether Mwilima is suffering from a dangerous disease or whether his continued imprisonment is detrimental to his health.
In the case before Tommasi, Mwilima also applied for an order that the minister of home affairs, immigration, safety and security should authorise his release from prison on a recommendation from Lumbidi.
Tommasi found that the grounds on which Mwilima applied for that order “are premised on an erroneous and absurd interpretation” of a section of the Correctional Service Act of 2012.
She said the clear intention with that section of the law was to make provision for the release of a prisoner suffering from a dangerous infectious disease or a dangerous contagious disease – and not for the release on medical grounds of a prisoner with a dangerous disease that can still be managed or controlled while the person is being held in prison.
Mwilima (68) has been jailed since August 1999, when he was arrested in the wake of surprise attacks that armed separatists carried out on government-linked targets at Katima Mulilo in the then Caprivi region.
He is now more than halfway through an effective prison term of 15 years that he started serving in December 2015.
Following a marathon trial on high treason and other charges, Mwilima was sentenced to 18 years imprisonment in December 2015, after he was found guilty of having been a leading figure in a plot to secede the Zambezi region from Namibia through armed means.
The Supreme Court dismissed an appeal against his conviction, but reduced his sentence to 15 years imprisonment, in an appeal judgement delivered in December 2021.
In a previous application filed by Mwilima, High Court judge Esi Schimming-Chase ordered in November last year that the medical officer of Windhoek Correctional Facility should determine if Mwilima is suffering from a dangerous disease or whether his continued incarceration is detrimental to his health.
The Correctional Service Act states that the minister responsible for Namibia’s prison system may on a recommendation of a medical officer authorise the release of a prisoner suffering from a dangerous, infectious or contagious disease, or a prisoner whose continued incarceration is detrimental to their health.
After Schimming-Chase’s order was issued, Lumbidi submitted a report to the minister of home affairs, immigration, safety and security, Albert Kawana, in which he recorded that Mwilima suffers from diabetes and chronic kidney failure, and that both conditions are considered to be dangerous diseases.
Lumbidi added, though, that Mwilima has access to regular dialysis sessions and to his private doctors when needed, and concluded that his continued imprisonment would not be detrimental to his health. In the case before Tommasi, Mwilima claimed that Lumbidi failed to comply with the court order by refusing to recommend his release despite his finding that Mwilima suffers from diabetes and kidney failure.
Tommasi found in her judgement that Lumbidi complied with the order that he should determine if Mwilima is suffering from a dangerous disease or whether his continued incarceration is detrimental to his health.
Lawyer Profysen Muluti represented Mwilima in the proceedings before Tommasi. The minister, Lumbidi and the prison authorities were represented by Sisa Namandje.