Right to fair trial opens jail doors for killer

AN Angolan soldier who admitted that he stabbed a resident of the Kavango Region to death with a bayonet six years ago is off the hook after his conviction and 18-year jail term were set aside on appeal in the High Court on Friday.

Nilton Kasanga was a 23-year-old soldier serving in the Angolan army when, on December 4 1999, he stabbed Jacob Anton (32) to death at Kakuro village. Kasanga was arrested four days later.He indicated that he would plead guilty to a charge of murder when he was first asked to plead during an appearance in the Rundu Magistrate’s Court in January 2000.When his trial eventually started in the Rundu Regional Court in April 2001, he again offered a guilty plea on the charge – but after he explained that he actually intended only to injure Anton, and not to kill him, a plea of not guilty was entered by the presiding Magistrate and a trial proceeded.Part of Kasanga’s initial plea explanation in the Magistrate’s Court was that his commander in the Angolan army had sent him into Namibia to buy food.At Kakuro, he met someone who told him that Anton was a member of Unita, and when he heard this, he decided that he wanted to take Anton back with him to his military commander in Angola, he explained.When Anton refused to accompany him, he stabbed Anton just below his left shoulder blade with a bayonet, he told the Regional Court.It was based on these admissions in his plea explanation that Kasanga was convicted of murder and sentenced to 18 years’ imprisonment on April 26 2001.On Friday, that conviction and sentence were overturned on appeal, because, in Acting Judge Raymond Heathcote’s opinion, Kasanga had not received a fair trial.Two main concerns over the conduct of Kasanga’s trial emerge from Acting Judge Heathcote’s judgement.The Acting Judge found, firstly, that Kasanga had not been informed that he had a right to remain silent before his trial started, and secondly – and more crucially, it turned out – he had not been properly informed that his right to legal representation included the option that he could ask to be provided with State-funded legal aid.Without the admissions that Kasanga made when he explained his attempted guilty plea, there would have been no evidence from the prosecution’s side to actually implicate him in the crime, Acting Judge Heathcote pointed out in his judgement.He stated that in his view the starting point in determining the fairness of a trial as envisaged in the Constitution, should always be whether an accused person had been informed of his rights.”Without an accused being properly informed, one cannot even begin to speculate whether or not rights have been exercised or indeed waived,” he noted.In Kasanga’s case, the accused wanted to plead guilty, but “(h)e was obviously ill-informed, and did not know the elements of the crime of murder,” Acting Judge Heathcote stated.He set out his reasoning on how Kasanga’s situation may very well have been different had he been aware of his rights: “Had he been properly informed, a plea of not guilty would have been recorded.(…) Then, (…) he would have been entitled to be informed that he had the right to remain silent.Thus, the admission made by him that he indeed stabbed the deceased with a knife, would not have been on record.Had he further been informed that he was entitled to expect the State to prove its case beyond a reasonable doubt while he remains silent, he may have done so.If he was legally represented, he would most probably have conducted his case on that basis.”It was not difficult to realise the prejudice that Kasanga had suffered in his case, the Acting Judge also stated.He remarked: “Had he been properly informed that he could obtain legal representation, and had he done so, a lawyer understanding all the elements of the crime of murder would have explained to (Kasanga) that he was entitled to plead not guilty.He could have and probably would have put the State to the proof that he committed the crime, and to prove so beyond reasonable doubt.Not a single State witness implicated the accused.He implicated himself in circumstances where he was ill informed.”In those circumstances, the Acting Judge added, it was his view that Kasanga had not received a fair trial.Kasanga spent almost six years in custody – more than four and a half of those as a sentenced prisoner – before his fortunes changed on Friday.Lawyer Kaijata Kangueehi argued Kasanga’s appeal on his behalf.Ruth Herunga represented the State in the appeal.Kasanga was arrested four days later.He indicated that he would plead guilty to a charge of murder when he was first asked to plead during an appearance in the Rundu Magistrate’s Court in January 2000.When his trial eventually started in the Rundu Regional Court in April 2001, he again offered a guilty plea on the charge – but after he explained that he actually intended only to injure Anton, and not to kill him, a plea of not guilty was entered by the presiding Magistrate and a trial proceeded. Part of Kasanga’s initial plea explanation in the Magistrate’s Court was that his commander in the Angolan army had sent him into Namibia to buy food.At Kakuro, he met someone who told him that Anton was a member of Unita, and when he heard this, he decided that he wanted to take Anton back with him to his military commander in Angola, he explained.When Anton refused to accompany him, he stabbed Anton just below his left shoulder blade with a bayonet, he told the Regional Court.It was based on these admissions in his plea explanation that Kasanga was convicted of murder and sentenced to 18 years’ imprisonment on April 26 2001.On Friday, that conviction and sentence were overturned on appeal, because, in Acting Judge Raymond Heathcote’s opinion, Kasanga had not received a fair trial.Two main concerns over the conduct of Kasanga’s trial emerge from Acting Judge Heathcote’s judgement.The Acting Judge found, firstly, that Kasanga had not been informed that he had a right to remain silent before his trial started, and secondly – and more crucially, it turned out – he had not been properly informed that his right to legal representation included the option that he could ask to be provided with State-funded legal aid.Without the admissions that Kasanga made when he explained his attempted guilty plea, there would have been no evidence from the prosecution’s side to actually implicate him in the crime, Acting Judge Heathcote pointed out in his judgement.He stated that in his view the starting point in determining the fairness of a trial as envisaged in the Constitution, should always be whether an accused person had been informed of his rights.”Without an accused being properly informed, one cannot even begin to speculate whether or not rights have been exercised or indeed waived,” he noted.In Kasanga’s case, the accused wanted to plead guilty, but “(h)e was obviously ill-informed, and did not know the elements of the crime of murder,” Acting Judge Heathcote stated.He set out his reasoning on how Kasanga’s situation may very well have been different had he been aware of his rights: “Had he been properly informed, a plea of not guilty would have been recorded.(…) Then, (…) he would have been entitled to be informed that he had the right to remain silent.Thus, the admission made by him that he indeed stabbed the deceased with a knife, would not have been on record.Had he further been informed that he was entitled to expect the State to prove its case beyond a reasonable doubt while he remains silent, he may have done so.If he was legally represented, he would most probably have conducted his case on that basis.”It was not difficult to realise the prejudice that Kasanga had suffered in his case, the Acting Judge also stated.He remarked: “Had he been properly informed that he could obtain legal representation, and had he done so, a lawyer understanding all the elements of the crime of murder would have explained to (Kasanga) that he was entitled to plead not guilty.He could have and probably would have put the State to the proof that he committed the crime, and to prove so beyond reasonable doubt.Not a single State witness implicated the accused.He implicated himself in circumstances where he was ill informed.”In those circumstances, the Acting Judge added, it was his view that Kasanga had not received a fair trial.Kasanga spent almost six years in custody – more than four and a half of those as a sentenced prisoner – before his fortunes changed on Friday.Lawyer Kaijata Kangueehi argued Kasanga’s appeal on his behalf.Ruth Herunga represented the State in the appeal.