When sharply criticising an unnecessary arrest in a corruption case, judge president Petrus Damaseb stated: “(I)t is incumbent upon an arresting officer to apply his or her mind to the question whether arrest, given its gravity, is the most appropriate manner of bringing a person before court.
“The obligation to do so becomes even more pronounced where the offence involved does not involve violence, there is no imminent threat to public safety, or where, over a long period of time spanning the investigation, the suspect has been cooperative and did not show any sign of being a flight risk.”
Following these sentiments by the High Court of Namibia, it is now an entrenched legal principle in our criminal procedure law that an arrest – being the most invasive mode of bringing a person to court (among other modes such as a summons) – must only be resorted to when necessary, especially if violence is not involved.
Lest we forget, the fundamental and underlying philosophy behind pretrial detention is to ensure a suspect attends court in future. It is not an anticipatory punishment.
Therefore, absent fear of a suspect not attending court or any other good reason, no one should be put behind bars before being found guilty and punished in accordance with the law.
ELEMENTARY EXAMPLES
Notwithstanding what ought to be an elementary principle in a constitutional democracy, given the premium placed on the fundamental right to personal liberty, Namibia unfortunately continues to witness an alarming number of cases involving unnecessary and arbitrary arrest as well as unjustified and prolonged pretrial denial of bail.
On 27 March 2020, Namibian Sun reported on the case of one Simunga who was arrested on allegations of committing bigamy.
Disconcertingly, he was reportedly denied bail. He was arrested because he allegedly married two women, one in 2009 and another in 2019.
About nine months later, the Informante newspaper reported on a man at Omuthiya village in the Oshikoto region accused of marrying a woman without annulling or terminating his first civil marriage.
At the time, the then Namibian Police regional commander for Oshikoto suggested that an arrest was imminent.
Closely related to these unnecessary arrests was the case of a brother and sister at Tsumeb who were arrested and detained during July 2023 for being in an incestuous relationship.
The question is, if it was not some form of anticipatory punishment what could have been the need to arrest and oppose bail in such a non-violent case?
Is it because of the moral abomination of the crime of incest?
Was it necessary to arrest them before trial, and worse, to remand the two siblings in custody and detain them for more than six months before bail was granted?
I contend that the arrest and pretrial custody were not necessary.
FUNDAMENTALS
The most problematic aspect of arresting suspects for bigamy is that while the Constitution protects and ordains fundamental freedom of association, dignity and its recognition of customary marriages – which in some cases may include multiple spouses – men continue to be unfairly arrested because they entered into a second civil marriage without annulling a prior civil marriage.
Yet, those in customary marriages can be in such multiple relationships without the risk of being arrested.
It seems that in the eyes of the law a statutory (civil) marriage law is considered superior to constitutionally protected customary marriages.
Consequently, we have a strange situation: a person can enter into a civil marriage and, without annulling it, enter into a customary law marriage without the risk of being prosecuted for bigamy.
On the other hand, incongruously so, entering into another civil marriage without annulling the first one immediately translates into the crime of bigamy.
This concerning state of affairs appears to be born out of the fact that to some customary law remains shunned, devalued and of less legal significance. It is considered a mere marital union.
This reveals the sorry state of our criminal justice system in as far as it relates to the power of the police to arrest, and consideration of whether or not a person arrested should remain in pretrial detention.
MODERNISATION
We must all accept, before it is too late, that our policing practices on arrest, when properly considered against the ethos and values in our Constitution, need urgent constitutionality aligned modernisation.
It is unacceptable that people are arrested simply because an arresting officer has the power to do so.
In many cases no consideration is given to whether or not the arrest is necessary.
It is unnecessary, and premature arrests give birth to congested court rolls and trial delays in our lower courts.
It is time that the substantive right to be presumed innocent and personal liberty are given the recognition they deserve.
While people may be lawfully arrested and detained on justified grounds prior to trial, such power must be exercised sparingly and only in deserving cases.
We must repudiate and jettison all practices of arresting people for no good reason and subjecting them to prolonged pretrial detention.
For now, we must accept that Namibian’s arrest and bail system is broken. In fact, very broken.
* Sisa Namandje is a legal practitioner of both the High Court and Supreme Court of Namibia, and is the author of seven law publications.
