The precedent set by paying will be costly
I am not a lawyer, I am an armchair social commentator. In looking at the pending settlement payments to the 79 who were found not guilty in the long-running Caprivi trial, I am worried that our officials, (who lose most of the cases that are taken on in courts) may not recognize the precedent that may be set by their financial settlement with those involved in that case.
It seems to me that the payments that would be made and the terms and reasons by which they would be paid, will set a pattern that will have Namibia paying through the nose from now until kingdom come whenever trials take too long (whatever that may legally mean) or whenever anyone feels that some legal process in their case was not done right.
Just to clarify: I have no extraordinary information on that marathon treason trial or the civil cases as presented in the former defendants’ lawsuit against the government, other than what I have read in the media. I stand corrected if there are factual omissions.
If these former defendants in the treason trial are suing for compensation due to wrongful prosecution or some claim that their rights were violated due to something done in the process of their case, that is a completely different thing than suing for the personal damages caused due to the length of time that trial took.
From my understanding, if there was a procedural or constitutional rights violation of any of those found not guilty or where charges were dropped due to lack of evidence, then there could be grounds to sue for wrongful prosecution.
If evidence was mishandled or some rule or regulation was missed or if the examination of witnesses or access by the defence to tools needed for a proper case was hindered, then this also could be grounds for some sort of suit. If something went bad during the arrest or detention of the accused, this could also be cause for such a claim. (I watch the TV court shows a lot.)
My view is simplistic to be certain, but these are my observations. That said, I find it hard to believe that any such wrongful prosecution happened as their learned and dogged legal defence teams were largely responsible for the hugely time-consuming plethora of side petitions/judgements, trials-within-a-trial, objections, challenges, legal research and precedent-setting rulings. It is hard to believe that the legal rights of any single former defendant was violated and went unnoticed or unaddressed in 15+ years.
If compensation is being demanded for the damages caused by the extremely long time it took to finalize the case, then, that is something else and that is what my comments focus on.
I have written on this issue before, years ago, when the horrific car accident took place that cost the lives of diligent, dedicated attorneys en route to the trial venue at that time, in the (then-called) Caprivi. I could not then, and still do not now, understand how in heaven that trial took so long. To keep people in jail 15 or more years without being convicted is unjust, plain and simple. I hope those that died while in jail, were cleared posthumously. At least their families can have that solace.
If Namibia lacked the capacity to hold this trial properly and in a reasonable amount of time (considering that 15 years is unreasonable), then they should ALL have been released on bail until the investigations and evidence had been assembled and conditions were right.
The threat of flight by the accused is always there certainly, but the overwhelming need to stand on the principle of innocent until proven guilty is paramount. Unless these guys were proven to be a threat to society, to themselves, to witnesses or the evidence collection process, they should never have been locked up for that long. If that is why they are suing in civil court, then the precedent this sets will cost GRN money when similar cases crop up all over the place.
Imagine going to jail, losing your job, your home, your cattle, your land and maybe your family life and then be acquitted in the end. Think of how any of us would feel if we left our babies wearing diapers or barely out of primary school and come back to find them in secondary school and maybe married with kids of their own.
Imagine the professional challenges of finding work when you’ve been locked away for 15+ years. There is no way to turn back the clock. But, where there are legitimate damages to be claimed, this issue must be addressed.
The fact that worries me is, are we not setting a costly precedent by saying that keeping people in jail for a ‘certain’ amount of time means that financial damages ought to be paid out, in the event they are found non-guilty or charges dropped for any reason.
We need to look at ALL the other people sitting in jails across this country, some for years without completion of their trials, and be prepared to pay them too. Can we afford this? Did anyone calculate the possibilities here?
What is the cost for 2 years? 4 years? Or 10 years in jail while a trial is underway or an investigation is in process and then in the end, all charges are dropped or the person is acquitted?
There was a recent robbery case that just came up after more than 10 years. If these suspects were acquitted or the charges dropped, what amount would be payable to them for their 10 years compared to the Caprivi defendants’ 15+ years? Should breadwinners be paid out more than non-bread winners? Should payment be based on age? Who knows?
You see my point here? Are we not opening Pandora’s Box for payments given the extremely SLOW pace of court trials here in Namibia?
Consider this: even those out on bail could claim money in the event they are acquitted or charges against them are dropped in the end. Being out on bail, having to come to a police station twice a week to check in, not being able to get jobs that involve travel or use of your passport, covering legal fees and maybe losing a job because of the scandal and social judgements that come to anyone on trial for anything, can cause damages. Will these people also have a claim to make?
Wait for it…all of those now in jail or waiting for their long-delayed trials could be watching what the government pays to the Caprivi 79 before dropping in their law suits too.
Will the pay-out of the Caprivi 79 transform Namibia into a litigious society? I’d bet the vultures…oh…I mean lawyers, are dancing down the aisles. Whatever settlements happen, means more money for them win or lose.
Certainly, whatever money is given to former defendants or to those held in prison for ‘too long’ will end up being shared with the lawyers involved in the case. And, though I chide the legal profession and their hour-billing schemes, they deserve to be paid for their professional services just like anyone else.
Since some kind of pay-out will happen in this Caprivi case, what are the legal system gurus prepared to do to increase the flow of cases through the courts so that people don’t have to sit in jail for years waiting for their delayed cases to be finalized?
We must ask ourselves when we set the precedent of paying off the Caprivi 79: Can we afford to settle pay-outs on ALL defendants who are jailed for years waiting for their cases to conclude?