Namibian Supreme Court outlaws ultra-long prison sentences

13 February 2018 · Carmel Rickard

In an important new decision, Namibia’s highest court has held that judges in that country may not impose jail terms that are “longer than a life sentence”. Prisoners serving life may be considered for possible parole after 25 years, and the supreme court has now held that any sentence in which parole is not at least notionally possible after 25 years, would be unconstitutional. The court was dealing with an appeal in which a trial court had imposed sentences of well over 60 years. Some judges imposed ultra-long sentences as a way of ensuring that a prisoner never became eligible for parole, said the court, but it was unacceptable to impose any sentence that was “in effect far more severe than (a) life sentence”.

CARMEL RICKARD

NAMIBIAN judges may no longer impose extremely long jail terms that leave a prisoner worse off than under a conventional life sentence. The country’s top court has found it unconstitutional to hand down “informal life sentences”, via jail terms that are so long that offenders have no possible hope of ever being released before they die.

The decision concerned a group of four convicts found guilty of two counts of murder, housebreaking with intent to rob and robbery with aggravating circumstances. They were given effective terms of 64 to 67 years in prison and appealed against sentence.

The Supreme Court’s decision dealt with this case in particular, but it will impact on all the country’s judges: in terms of binding precedent, no court may now impose punishment that is effectively tougher than a life sentence.

The four accused, aged between 22 and 36 at the time, were originally sentenced in 2002. All were given two 30-year sentences, one for each murder, but just ten years of each were to run concurrently. Including sentence for their other crimes, the four were looking at effective prison terms of between 67 and 64 years.

Their appeal took years to get to the supreme court; when it did, the top judges ruled that the appeal should also consider the question of whether ultra-long sentences were constitutional.

The attorney-general, invited by the court to become a party to the appeal, submitted that “any punishment or term of imprisonment” that takes away “all hope of release” would be unconstitutional. The attorney-general also pointed out the way that the parole system worked, a factor that played a significant role in the court’s ultimate decision. Prisoners sentenced to more than 20 years would need to serve two-thirds of their sentence before being eligible for consideration of parole. In the case of a life sentence, a prisoner must serve at least 25 years before parole may be considered. This meant that anyone with a sentence of more than 37 and a half years would actually be punished more harshly than someone serving a life sentence. And yet, since the death sentence was abolished, a life sentence is intended to be the toughest sentence that may be imposed.

Counsel for the state stressed that the four were repeat offenders who had committed very serious offences, but agreed that there were difficulties in justifying punishment longer than a life sentence, and asked the five judges for guidance.

In their discussion, the judges point out the strict conditions under which the parole board operates and that parole is never automatic. They also considered decisions in a number of other jurisdictions dealing with imprisonment for “longer than life”. In particular, they quoted cases in which the courts had held that what made “life imprisonment” constitutional, was the prisoner’s “right to hope” for ultimate release. Among the cases they considered was the 2016 decision by Zimbabwe’s constitutional court striking down that country’s system of life imprisonment without any possibility of parole: quoting international standards, the court said this amounted to inhuman and degrading treatment.

Academic writers had also criticized “informal life sentences”, saying while they might have a fixed release date, “the offenders will inevitably die in prison before that date is reached as the release date is beyond their life expectancy”.

When such sentences were imposed in Namibia the trial judge might be deliberately intending “to exclude the possibility of offenders being considered for parole … after 25 years.”

“This form of informal life sentence – where a sentence is so unusually long as to deny offenders all possible hope of ever being released during their life time” was found in an earlier case to be “alien to a civilized legal system”.

“I entirely agree with that characterization,” wrote Judge Dave Smuts for the court. It would not be permissible in Namibia to impose a sentence that was “calculated to circumvent the relevant parole provisions”.

If their sentences were allowed to stand, the four men involved in the appeal would only be eligible for parole consideration after serving well over 40 years. At that stage they would be aged between 67 and 80. “These sentences are certainly in effect far more severe than life sentences …. This is untenable.”

“Such lengthy sentences … are to be discouraged. The crimes committed by the appellants were however brutal and vicious in the extreme and perpetrated with premeditation, justifying that they should be permanently removed from society as would be brought about by a sentence of life imprisonment” with “the hope of release after serving at least 25 years.”

In all four cases, the previous sentence was replaced with two life sentences, running concurrently. But there was a little hook at the end of the decision. In a separate but concurring decision, one of the judges hearing the appeal, Theo Frank, said that while he agreed with the rest of the bench, there was an aspect he wanted to stress: the views of the court that imprisonment without the prospect of release before death was unconstitutional “must be seen in the context of … life imprisonment only”.

He said that if someone sentenced to life imprisonment did not meet parole conditions that prisoner had to stay behind bars and “live out the rest of his life in prison”. Additionally, in his view, it would not help an elderly Namibian person sentenced to, say, a 15-year term in jail to appeal on the grounds that they would probably die in prison.

The full judgment is available on Namiblii: https://namiblii.org/na/judgment/supreme-court/2018/4-0

Carmel Rickard

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