Judgement reserved in wrongful arrest case

A HEARING over the overnight detention of a pregnant northern Namibia businesswoman in a dark, cockroach-infested Police cell in early 2005 ended in the High Court in Windhoek on Thursday.

Lavinia Nghimwena is suing Government for N$700 000 for alleged unlawful arrest and detention and mistreatment at the hands of the Police while being detained. The last testimony in the case she lodged against Government in October 2005 was heard by Judge Mavis Gibson on Wednesday last week.Having heard closing arguments from lawyers Sisa Namandje, representing Nghimwena, and Matti Asino, representing Government, Judge Gibson reserved her judgement in the matter on Thursday.Members of the Namibian Police who were investigating Namibia’s largest armed robbery to date – the cash-in-transit heist in which N$5,7 million was stolen from a security company vehicle in the Brakwater area north of Windhoek on December 29 2004 – turned their attention to Nghimwena and her husband, Elikana Grun Nghimwena, on January 12 2005.Believing that Mrs Nghimwena and her husband had information that could help the Police track down the main suspect in the robbery, Jason Awene, alias ‘Kilingi’, members of the Police team investigating the heist took the Nghimwena couple, who are running a business in northern Namibia, in for questioning early on the afternoon of January 12 2005.Mrs Nghimwena is claiming that over the almost 24 hours that followed, Police officers assaulted her by manhandling her, pushing her around and hitting her in the face, they verbally insulted her by calling her a “bitch”, a “liar”, and “stupid”, and at the Oshakati Police Station one officer indecently assaulted her by groping her.With her three children – aged six and five – left alone at home, Mrs Nghimwena, who was pregnant at that stage, was finally locked up in a cell around midnight that evening.The cell was pitch dark and she was not given any blankets or a mattress to sleep on, she told the court.The cell was also infested with cockroaches, which were running over her during the night, she is claiming.Mrs Nghimwena was eventually released without charge early the next afternoon.Whilst admitting that Mrs Nghimwena was detained, Government is denying her claims that this was unlawful or that she had been mistreated by the Police.According to Government, there was reasonable suspicion that justified her arrest, as she was being investigated on a suspicion that she was harbouring a fugitive from justice, being Awene, or had assisted Awene to evade the Police and flee from Namibia.With Police officers having contradicted each other in their testimony during the hearing on the issue of her arrest, it is not even clear whether she was actually formally arrested before she was locked up in the cell for the night.According to the then Commanding Officer of the Serious Crime Unit, former Chief Inspector Oscar Sheehama, he instructed a colleague, Warrant Officer Geoffrey Scott, to arrest Mrs Nghimwena and have her locked up for the night.UNLAWFUL According to Scott, though, Sheehama only instructed him to have her locked up, and he was under the impression that she had already been arrested when he came on the scene at the Oshakati Police Station shortly before midnight on January 12 2005.The alleged arrest and detention were in any event unlawful because it was not done with the aim of securing Mrs Nghimwena’s attendance in court, but to interrogate and investigate her, Namandje argued on Thursday.”In the brutal past of this country before Independence, individuals’ rights to liberty and freedom were some of the rights that were devalued and negated,” Namandje said to the Judge.The evidence in Mrs Nghimwena’s case is no different from incidents before Independence, where people were detained just because of the frustration of Police officers when those people could not direct the Police to or give them information on especially suspects in political matters, Namandje added.There was simply no reasonable suspicion that could have prompted the arrest, he argued.Asino argued to the contrary.He reminded Judge Gibson that the Police officers who testified in the case told the court that they got access to the voicemail message system on Awene’s cell phone, on which they heard a message that they suspected had been left by Mrs Nghimwena on January 10 2005.Again, though, the Police witnesses contradicted each other on this issue.Sheehama initially told the court that Mrs Nghimwena had sent a text message to Awene’s phone, but under cross-examination then changed his testimony to state that she had left a voice message after phoning Awene’s number on her cell phone.By the time that Scott testified, though, it had emerged that in fact a call had been made to Awene’s cellphone from the fax phone line of the Nghimwena couple’s business.There was no proof of who had left the alleged message for Awene.Asino, who asked that Mrs Nghimwena’s claim should be dismissed, argued that if all the circumstances of the situation at the time of Mrs Nghimwena’s detention were taken account of, it had been shown that the Police had reasonable suspicion that she had been involved in assisting Awene to evade arrest.He argued that while there was not enough evidence to ultimately charge her, the Police were justified in locking her up overnight while they were continuing to investigate the matter.There was in any event no evidence to support Mrs Nghimwena’s claims of having been assaulted, Asino also argued.The last testimony in the case she lodged against Government in October 2005 was heard by Judge Mavis Gibson on Wednesday last week.Having heard closing arguments from lawyers Sisa Namandje, representing Nghimwena, and Matti Asino, representing Government, Judge Gibson reserved her judgement in the matter on Thursday. Members of the Namibian Police who were investigating Namibia’s largest armed robbery to date – the cash-in-transit heist in which N$5,7 million was stolen from a security company vehicle in the Brakwater area north of Windhoek on December 29 2004 – turned their attention to Nghimwena and her husband, Elikana Grun Nghimwena, on January 12 2005.Believing that Mrs Nghimwena and her husband had information that could help the Police track down the main suspect in the robbery, Jason Awene, alias ‘Kilingi’, members of the Police team investigating the heist took the Nghimwena couple, who are running a business in northern Namibia, in for questioning early on the afternoon of January 12 2005.Mrs Nghimwena is claiming that over the almost 24 hours that followed, Police officers assaulted her by manhandling her, pushing her around and hitting her in the face, they verbally insulted her by calling her a “bitch”, a “liar”, and “stupid”, and at the Oshakati Police Station one officer indecently assaulted her by groping her.With her three children – aged six and five – left alone at home, Mrs Nghimwena, who was pregnant at that stage, was finally locked up in a cell around midnight that evening.The cell was pitch dark and she was not given any blankets or a mattress to sleep on, she told the court.The cell was also infested with cockroaches, which were running over her during the night, she is claiming.Mrs Nghimwena was eventually released without charge early the next afternoon.Whilst admitting that Mrs Nghimwena was detained, Government is denying her claims that this was unlawful or that she had been mistreated by the Police.According to Government, there was reasonable suspicion that justified her arrest, as she was being investigated on a suspicion that she was harbouring a fugitive from justice, being Awene, or had assisted Awene to evade the Police and flee from Namibia.With Police officers having contradicted each other in their testimony during the hearing on the issue of her arrest, it is not even clear whether she was actually formally arrested before she was locked up in the cell for the night.According to the then Commanding Officer of the Serious Crime Unit, former Chief Inspector Oscar Sheehama, he instructed a colleague, Warrant Officer Geoffrey Scott, to arrest Mrs Nghimwena and have her locked up for the night.UNLAWFUL According to Scott, though, Sheehama only instructed him to have her locked up, and he was under the impression that she had already been arrested when he came on the scene at the Oshakati Police Station shortly before midnight on January 12 2005.The alleged arrest and detention were in any event unlawful because it was not done with the aim of securing Mrs Nghimwena’s attendance in court, but to interrogate and investigate her, Namandje argued on Thursday.”In the brutal past of this country before Independence, individuals’ rights to liberty and freedom were some of the rights that were devalued and negated,” Namandje said to the Judge.The evidence in Mrs Nghimwena’s case is no different from incidents before Independence, where people were detained just because of the frustration of Police officers when those people could not direct the Police to or give them information on especially suspects in political matters, Namandje added.There was simply no reasonable suspicion that could have prompted the arrest, he argued.Asino argued to the contrary.He reminded Judge Gibson that the Police officers who testified in the case told the court that they got access to the voicemail message system on Awene’s cell phone, on which they heard a message that they suspected had been left by Mrs Nghimwena on January 10 2005.Again, though, the Police witnesses contradicted each other on this issue.Sheehama initially told the court that Mrs Nghimwena had sent a text message to Awene’s phone, but under cross-examination then changed his testimony to state that she had left a voice message after phoning Awene’s number on her cell phone.By the time that Scott testified, though, it had emerged that in fact a call had been made to Awene’s cellphone from the fax phone line of the Nghimwena couple’s business.There was no proof of who had left the alleged message for Awene.Asino, who asked that Mrs Nghimwena’s claim should be dismissed, argued that if all the circumstances of the situation at the time of Mrs Nghimwena’s detention were taken account of, it had been shown that the Police had reasonable suspicion that she had been involved in assisting Awene to evade arrest.He argued that while there was not enough evidence to ultimately charge her, the Police were justified in locking her up overnight while they were continuing to investigate the matter.There was in any event no evidence to support Mrs Nghimwena’s claims of having been assaulted, Asino also argued.