Decisions by a magistrate based at the Oshakati Regional Court in Namibia have led to strong community protest and concern by anti-rape activists who oppose sentences the judicial officer has passed in rape cases. They are also against him being asked to sentence a rapist in a case where he (the magistrate) had originally acquitted the accused. Now, following the state’s successful appeal against that acquittal, the magistrate must sentence the man whom he was originally sure was not guilty. Protesters, however, say the magistrate should have nothing more to do with the case as he will not bring an open mind to the matter.
Namibian magistrate Leopold Hangalo is at the centre of community concern over his decisions in three unrelated rape matters.
In the most recent, he convicted teacher Itana Sakaria of repeatedly raping a 13-year-old learner in 2014 and fathering a child with her. The magistrate then went on to give the teacher – apparently still working at the same school – a completely suspended sentence, finding that there were compelling grounds for Sakaria to escape the prescribed 15-year sentence for raping a minor.
These 'compelling grounds' included the fact that he was the sole breadwinner for his wife, their seven children and his child with the underage schoolgirl.
The wholly suspended sentence was imposed against the background of the state’s call for an 18-year sentence. Not even the defence had thought it appropriate to ask that the sentence be completely suspended. Instead, Sakaria’s own counsel had asked for seven years but with an effective three-year prison term.
Although imposed earlier this week, the sentence has already been strongly criticised. For one thing, the court accepted Sakaria’s claim that the girl, 13 at the time, had consented to sex. As the state stressed, a child of 13 cannot give legal consent and so this defence was not legally valid. There have also been complaints that the wholly suspended sentence imposed by the magistrate sent out the wrong signal to teachers ‘who prey on their young students’.
There has so far been no official comment on the sentence or on the community protests.
Another case causing community unhappiness concerns Hangalo’s acquittal of rape accused Sindano Hango, who was charged with raping his cousin and trying to pay her to withdraw the rape charge.
When the state appealed the magistrate’s decision, the high court overturned the acquittal and sent the matter back to Hangalo for sentencing. However, the high court’s decision that Hangalo should finalise the trial, including Hango’s sentence, has led to community protests, with demands that Hangalo be completely removed from the case because of his handling of the trial and his earlier acquittal of the accused.
The high court’s judgment in this appeal seems to illustrate that Hangalo is out of touch with critical developments in Namibian law, particularly on aspects of the law that would routinely come into operation when a case of rape or sexual assault is being tried.
In their decision, the two high court judges reconsidering Hangalo’s acquittal of the accused, said it was ‘abundantly clear’ that the magistrate had applied the cautionary rule even though it had long been abolished in Namibia. He had also relied on principles and case law that were no longer applicable.
The judges found that the magistrate had not thoroughly evaluated the evidence, as he was required to do. He had also clearly misdirected himself in applying the ‘obsolete and redundant’ cautionary rule.
That rule had been questioned as far back as 1991 and for almost 19 years had been officially no longer part of Namibian law.
Moreover, faced with two ‘mutually destructive versions’, the magistrate did not follow the ‘settled and well-known approach’ of applying his mind to the merits and demerits of the witnesses for the state and the defence, and of the probabilities.
These were two serious misdirections that would entitle the high court to intervene, disregard the magistrate’s findings and come to its own conclusions.
In its consideration of the evidence and the running of the trial, the high court was also critical of Hangalo’s handling of other aspects, particularly as it related to trials involving charges of rape or sexual assault.
Apart from these two cases, both involving a male perpetrator raping a female, and both seeming to show the magistrate being lenient towards the accused by either acquitting him or allowing him to walk free from court, there is another case that is causing concern.
This is because it seems to show that Hangalo imposes very different levels of sentence depending on whether the crime is heterosexual or homosexual rape.
By contrast with the wholly suspended sentence imposed in the case where the teacher, aged 34 at the time, raped and impregnated a 13-year-old girl learner, earlier this year he imposed a 45-year sentence on a man he convicted of raping two boys. The accused, Mandume Nakale, had been 16 and 20 at the time of the crimes.