Two new decisions from the High Court in Namibia show judges on the warpath against drugs and drug dealing. The distinctly tougher line follows a watershed judgment late last year (2018). As I wrote at the time, through that strongly-worded landmark decision the Namibian courts gave notice that they were intent on a serious change to the way they handle cases involving drugs and drug dealing. Judge President Petrus Damaseb and Judge Christie Liebenberg said in that earlier decision that crimes involving drugs and dealing would no longer be tolerated and that sentences would now be ‘appropriately severe’. The fruits of that decision can now be seen in two new cases, the first full judgments reported on the subject in 2019. In one, a man’s 10-year sentence for drug-related offices has been confirmed on appeal. And in a second case, the High Court has upheld a magistrate’s decision refusing bail to two accused in a high-profile case involving suspected drug importation.

The two Namibian high court judges who heard the appeal by drug-accused Paul Umub did not mince their words. Upholding his 10-year sentence they said: “The courts must step in and impose severe sentences, never heard of before, as we are losing the battle against drug abuse. … The sentences … imposed must be so severe to deter the appellant and would-be offenders from committing such offences.”

The two judges, Nate Ndauendapo and Christie Liebenberg, were considering an attempted appeal by Umeb, convicted of possessing “large quantities” of drugs. Umeb claimed that the sentence passed on him was excessive and did not take his personal circumstances sufficiently into account.

Judge Ndauendapo, who wrote the decision with the agreement of Judge Liebenberg, said he completely agreed with the October 2018 judgment in S v Swatz, when Judge President Petros Damaseb and Judge Liebenberg had said there was a “dire need” for change in the court’s stance on drug-related matters.

While the personal circumstances of the accused should be given the necessary weight, so should society’s need to “root out the evil of drugs in its midst”, they wrote in the Swatz case.

“Sentences should reflect the determination of our courts to play their part in curbing this evil that is only aimed at destroying human lives and the more vulnerable members of society.

“A clear and unequivocal message should emerge from the courts that crimes of this nature will not be tolerated any longer and sentences will henceforth be appropriately severe,” they wrote.

Umub’s appeal involved two difficulties – the fact that his drug-related conviction comes as the Namibian courts implement their new commitment to tougher action on such offences, and the fact that he filed his appeal five years after sentence, a delay for which “no reasonable and acceptable explanation” was offered, according to the appeal judges.

On appeal, Umub’s counsel argued that the trial court had overemphasized the seriousness of the offence compared with Umub’s personal circumstances.

But counsel for the state pointed out that Umub had actually been convicted of possessing “large quantities” of drugs including 40 Mandrax tablets and 26.9000 grams of dagga. In addition, he had previous convictions related to drugs and drug dealing. These offences were also considered by the trial court in deciding on the 10-year sentence. It was correct for the trial court to have considered these previous convictions in deciding on his punishment since his earlier conviction and sentence had not deterred him from offending again.

The appeal judges in Umub’s case said the fight against dealing in and possessing dangerous dependence-producing substances had to be intensified by the law enforcement agencies and the courts. “It is on the increase and busy destroying our communities, particularly the youth, despite the heavy sentences imposed.” The level of drug abuse in Namibia had become “dire”. “It is destroying our communities and particularly our youth.”

There was no prospect of success on appeal as Umub’s sentence was not shockingly inappropriate, nor did the magistrate over-emphasis the serious of the offence at the expense of mitigating factors. The “scourge” of drug abuse was on the increase and courts were expected from now on to impose severe sentences as a deterrent.

Just a couple of days earlier, Judge Naomi Shivute had to consider a complaint by two drug suspects, Grant Noble and Azhak Dinath.  Charged with dealing in cocaine, they argued that they were wrongly refused bail.

The case has caused headlines as it is said to involve the biggest cocaine haul in Namibian history – more than 400 kg. The drugs were discovered after Noble and Dinath ordered a container of A4 printing paper from overseas. When it arrived in Walvisbay, a police search of the container found the substances that have given rise to the charges against the two men.

Judge Shivute recognized that only a small sample of the substance had been tested and that investigations were continuing. Complicating matters further was the “magnitude of the case” and the fact that it appeared to be an international crime since the substance said to be cocaine had been imported from Brazil.

Nobel and Dinath argued that they should have been given bail since the magistrate accepted that they were not a flight risk and were unlikely to interfere with any witnesses. They claimed that in refusing them bail, the magistrate had put too much stress on public interest and had been unduly influenced by among others, the full gallery in court for each appearance of the accused, a demonstration held to protest bail and a church petition against bail.

Judge Shivute said the magistrate carefully considered the evidence before her. The high court had no reason to interfere with the magistrate’s decision as she (Judge Shivute) was of the opinion that the magistrate had exercised her discretion correctly.

The law allowed a court to refuse bail even if it found the accused was not a flight risk, where it was “in the interest of the public or the administration of justice that the accused be retained in custody pending his or her trial”.

Among the factors considered by the magistrate was the “magnitude of the case”, the effect such drugs have on the public and the state’s allegation that the dangerous dependence producing drugs came from outside Namibia.

While Judge Shivute said it was “safe to conclude” there was no reason to interfere with the magistrate’s decision refusing bail, it must now be equally safe to conclude that anyone involved in drug-related crimes in Namibia should expect an “appropriately severe” approach by the courts.

Umub v S (February 2019)

Noble v S (February 2019)

S v Swatz (October 2018)

  • “A matter of justice”, Legalbrief, 26 February 2019