At the centre of most murder trials are two people: the attacker and the deceased. During evidence in mitigation of sentence, the court and the public hear something about the person on trial. But when, if ever, is the voice of the deceased person heard? Who speaks for him or her? This decision, last of our special Women’s Month focus on current decisions in African courts that affect women, is by Judge Christie Liebenberg of Namibia’s high court. He said he saw no reason why the family of a murdered person should not lead evidence about him or her as a person and the impact of that death on the family. Once the family evidence had been led, it could be considered when the court decided on aggravating circumstances. Given the horrifying number of gender-based killings, this approach could make a difference: it would, in theory at least, allow such a woman a voice in court.

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The case that led Namibia’s Judge Christie Liebenberg to consider the evidential worth of evidence by a murdered person’s family was truly tragic. The accused, Lukas Nicodemus, was convicted of killing two women, Clementia de Wee and Johanie Naruses. He had been in a romantic relationship with both of them. Their murders were thus clearly an example of fatal ‘domestic violence’.

Nicodemus did not give evidence himself. But piecing together the facts, the court concluded that he shot and killed both women while they were sitting with him in his car. Then he drove to the municipal dump on the outskirts of Windhoek. He pulled both bodies out of the car, covered them with old tyres and then set them alight.

When they were found, they were charred beyond recognition. ‘There can be no doubt that (they) died a cruel and undignified death,’ said the judge.

Although Nicodemus gave no explanation, other evidence indicated that there had been jealousy that destabilized and broke down the relationship ‘to the point where it resulted in death for both the accused’s girlfriends.’

‘Though the facts leading up to the shooting of the deceased remains unknown to the court, it seems to have been sparked by jealousy,’ said the judge. He then quoted an earlier decision that the court considered crimes committed in a ‘domestic setting’ in a serious light ‘and would increasingly impose heavier sentences in order to bring an end to the spate of murders (that Namibia) currently experienced. (This) is just another example of the extent of abuse and crimes committed on a daily basis in our society, where the weak and vulnerable often pay with their lives for no reason at all.’

Speaking strongly himself about the situation, Judge Liebenberg said Namibians had become accustomed to senseless killing of vulnerable people – too many of them as a result of domestic violence. ‘Women, children and the elderly regularly fall prey to brute and cruel murderers who … are unable to own up or explain their deplorable conduct.’

The prosecution led evidence in aggravation of sentence from the family of one of the murdered women, Clementia de Wee. Her mother told the court about the personal circumstances of the daughter and the impact of her death on the family. She had been 23 when she was killed and her daughter had been just three years old. Now seven, the child lives with the grandmother. She spoke about the child’s continuing nightmares and how much she missed her mother. The whole family was emotionally affected by Clementia’s murder. The family also explained that Nicodemus had not contacted them, either to offer financial help or to apologise, and they asked the court to impose ‘the harshest sentence possible’.

The uncle of the second woman murdered by Nicodemus, Johanie Naruses, spoke on behalf of her family. He said his sister (mother of Johanie) was so ‘deeply distraught’ by the way her child had died that she had become sickly. The accused had neither apologized not offered financial assistance to the family, and this family too, felt that life sentence would be appropriate.

Nicodemus himself said that the death of the two young women had ‘caused a vacuum in his life’ and that he was experiencing ‘emotional suffering’ just like the relatives of the deceased. He ‘extended his condolences’ to the two bereaved families.

Judge Liebenberg said that the evidence he had heard by the family of the two women was ‘expressive and touching’, but it also gave some sense of how the families have suffered. Besides their longing for the two dead women – something that must have impacted severely on the families – there was the ‘gruesome manner in which the lives were ended’ and the ‘undignified and hideous manner in which the bodies were disposed of by setting them alight.’

He said evidence about the offender’s personal circumstances was routinely accepted by the court in considering sentence. However, ‘evidence is seldom led about the victim as a person and the effect on the relatives due to the loss of a loved one in murder cases.’

‘Sadly, the victims often become just another statistic. This is unfortunate and likely to do injustice to the relatives of the victim’ if not enough weight is given to the loss they have suffered.

The court should take into account how families cope afterwards. ‘There is no reason in my view, why these circumstances, once duly established, should not be considered and relied upon in aggravation of sentence.’ He therefore held that he could take into account the evidence given by the families of the two murdered women and give their testimony ‘sufficient weight’.

He held that Nicodemus had shown no remorse. ‘Contribution can only come from an appreciation and acknowledge of his wrongdoing’, something that was clearly lacking here. The note he prepared in mitigation ‘is nothing more than self-pity and falls significantly short of an expression of remorse.’

All the accused could put up in mitigation of his own sentence was that he was a first offender, that he was employed and that he had been in custody for almost five years, awaiting trial.

The double murder called for ‘lengthy custodial sentences’ particularly given that he burnt the bodies of two women to destroy the evidence against him, something that was ‘extremely aggravating’, and the judge therefore imposed two life sentences, to run concurrently.

  • Newsletter, Judicial Institute for Africa (Jifa), 29 August 2019