“Astute and thorough” judgment on trafficking by Namibia’s Judge President

22 February 2019 · Carmel Rickard

ATTENTION judges who attended Jifa’s advanced course on international human rights law in Cape Town earlier this month. During the training week, Jifa discussed a recent decision by Namibia’s Judge President Petrus Damaseb with expert course trainer, Peter Carter QC. We asked for Carter’s comments on the judgment in the context of the course, namely that any judge – not just a specialist court – might find themselves in a position to consider applying international Protocols. What would other judges be able to learn from the judgment, we wondered. Take a look at the judgment – the accused was charged with rape and trafficking – and at how Judge Damaseb invoked the Palermo Protocol of 2000 (the UN Protocol to Prevent, Suppress and Punish Trafficking in Person, especially Women and Children). Then see the trainer’s comments.

THE decision by Namibia’s Judge President Petrus Damaseb involved difficult issues. The accused was charged with rape and trafficking together with Namibia’s Prevention of Organised Crime Act 20 of 2004. In addition, the circumstances of everyone involved in the story were tragic: these are people who live off their local rubbish dump and the children involved must inevitably be particularly vulnerable.

From the full text of the judgment in S v Koch it is obvious that charges of trafficking might find their way to court more easily than you would expect.

Asked for comment on what other judges might learn from the decision of Judge Damaseb, Jifa trainer, Peter Carter QC, an expert on issues of modern slavery and human trafficking, said it showed an “astute and thorough approach”.

Here are his comments highlighting, among others, how the court had dealt with problems associated with invoking charges of trafficking for sexual exploitation:

In S v Koch (CC 20/2017) [2018] NAHCMD 290 (18 September 2018) DAMASEB, JP gave judgment in the High Court of Namibia in a criminal case concerning human trafficking for sexual exploitation.

A number of girls alleged that they had been subjected to a series of sexual assaults by the defendant. The accused pleaded not guilty to charges of child trafficking and rape under coercive circumstances of five minor girls. The accused lived in the same neighbourhood with the complainants and from the collective version of the complainants, the accused would invite them to his room where he would commit sexual acts with them. The court was called upon to determine whether the accused harboured or received the girls for purpose of sexual exploitation.

DAMASEB, JP ruled that the substantive charges or rape were not proved and acquitted the defendant of those charges. He did so because the evidence of the girl victims was inconsistent and unsatisfactory on the incidents which were alleged to constitute rape. He convicted the defendant on charges of trafficking the girls in that he harboured or received them within the meaning of Prevention of Organised Crime Act 20 of 2004 POCA and the Protocol by engaging in lewd and lascivious conduct for his sexual gratification. In addition the court was satisfied that, at the very least, the accused solicited the complainants to engage in indecent and immoral conduct with him for his sexual gratification, contrary to s 14(c) of the CIPA s 14(c) of the Combating of Immoral Practices Act 21 of 1980.

As part of his judgment finding that the offences of human trafficking were proved, DAMASEB, JP applied the provisions of the Palermo Protocol of 2000 (the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children).

This judgment demonstrates an astute and thorough approach to the application of human trafficking provisions in accordance with international law in circumstances where specific acts of sexual violence cannot be proved to the necessary criminal standard. The case also demonstrates the problems confronting courts when assessing the evidence of witnesses who may have been traumatised by what they have experienced as well as by vulnerability due to their age, background and circumstances.

The need to protect victims from human trafficking while applying the proper burden of proof to protect the rights of an accused to a fair trial is encapsulated in this valuable judgment. The law of Namibia required the judge to adopt a “cautionary approach” to the evidence of children, which is less than a need for corroboration. Other jurisdictions will apply a rule of evidence which does not require such a rule and may have special rules to ensure that children and vulnerable witnesses can give evidence in ways which promote best and reliable evidence which does not risk discrimination. DAMASEB, JP applied it in the following way at paragraph [13] –

“It is important, in hearkening to the injunction for caution, for the court to pay special attention to aspects and circumstances which accentuate the risk of the child’s evidence having been influenced in some way or being the product of a child’s fertile imagination. It is unhelpful in that exercise to take an armchair approach to the evidence. As the primary fact-finder, the trial court must, within the parameters of the law of evidence, be guided by common sense. All told, a court should only convict on a child’s evidence if it is safe to do so. It should be satisfied beyond reasonable doubt as to the truth of the child’s evidence and the guilt of the accused.”

Carmel Rickard

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