Judge orders damages against Namibia’s police who detained child overnight for no good reason

18 July 2023 · Carmel Rickard

The conduct of Namibia’s police is under the spotlight once more, thanks to a high court case from which it emerged that they detained a group of people and held them overnight although they did not suspect them of any crime. Among those detained was a nine-year-old boy. The boy was travelling with a group of his relatives, one of whom was thought by the police to be a suspect in a housebreaking case. Police ordered that everyone in the car had to go the police station where they were held overnight. This included the child. When the boy and his father later sued the police, the court held that no attempt was made to contact the child’s family to inform them of his whereabouts. The judge also held that the child had been unlawfully detained and awarded damages to the boy as well as to his father, who had spent an anguished night not knowing what had happened to his child.

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Namibia’s police have been at it again, acting in a cavalier way without regard to the constitution, let alone to ordinary human kindness. This time, apparently attempting to arrest a suspect, they stopped a car full of people, including a nine-year-old boy. Though the police had no reason to believe that the child and the others in the car, apart from the suspect, had anything to do with the crime, they detained them all overnight.

The child’s distraught parents had no idea where he was, and were only informed the next day that the police had him and that he could be collected from the station. The boy, frightened by the experience, and his father, furious at the emotional toll of the police behaviour, brought a joint legal action for damages, and have now been awarded compensation by the high court.

Blatant abuse

The child, not named because he is under age, was represented by his biological father, an employee of the ministry of education. Their case was based on their claim that the boy’s arrest and detention was unlawful, wrongful and arbitrary. He wasn’t a suspect in the commission of any offence, and the police who arrested the group knew full well that the child wasn’t going to be charged with any offence. Yet they took him in and held him overnight, violating his civil liberties and his rights as a child.

This amounted to ‘blatant abuse of power’, said the father, given that the constitution prohibits even ‘preventive detention’ of children below 16, and it proved a traumatic experience for the boy.

As for the father, he spent a sleepless night worrying about where his son was, and suffered mental anguish as a result.

Harassed

On behalf of the minister of home affairs, immigration and safety and security, it was said that the police hadn’t in fact ‘arrested’ the boy. They were trying to track down a suspect believed to have committed ‘housebreaking with intent to steal and theft’ in Walvis Bay. The police located the suspect – he was one of the passengers in the car – and brought him to the Okahao police station for questioning.

The police also claimed that the child’s family had been notified to come and collect him, but that no one showed up until the following day. He had been kept overnight at the police station ‘to ensure his safety’.

In court, the driver of the vehicle gave evidence about how, when they stopped to buy some refreshments, he was approached by men who were not in uniform. The men harassed them, forced them from the car and took their wallets, and then instructed him to drive to the police station.

Frightened

There, they handcuffed everyone who had been in the car while the boy was put in a ‘small room with an old mattress’. The driver said he repeatedly asked the police to give him his cellphone so that he could call someone at the boy’s home to come and fetch him, but they refused.

The boy also testified, saying he had gone on a trip with his uncle, subsequently identified by the police as the suspect, and three other relatives. After being forced to go to the police station, his relatives asked the police to call his mother but they didn’t do so until the next day. He said he was given no food or drink and couldn’t sleep that night because he was so frightened.

Both his parents – they do not live together – gave evidence of their anguish at hearing that the child and the other relatives had all been ‘abducted’ and were missing. They said they knew nothing about police claims that they had called the mother on the phone to collect the child.

Frustration

The father also said that after the child was picked up from the police station, he told him everything that had happened. That prompted him to approach the police station several times, asking for an explanation as to why his son had been held overnight and why he (the father) hadn’t been phoned to pick up the boy. However, he had no success in getting any answers.

It was because of his frustration over the lack of help and cooperation from the police, that he decided to approach his lawyers about bringing legal action on behalf on his son.

Safety

One police officer who gave evidence said that the child ‘wasn’t arrested, and was kept at the charge office with other police officers whilst he was waiting for his relatives to come and pick him up.’

Another said that after the people in the car had arrived at the police station, the three adult men were put into the waiting area for further questioning, while the boy was ‘kept at the charge office for his safety with other police officers.’ When he stopped work that night, the child was left with the other police officers, waiting to be fetched by his relatives.

There was also evidence by one police officer that he had heard one of the boy’s relatives calling the boy’s mother. After the call, the relative said the mother would arrange to come and collect the boy. However, that had not happened.

Inconsistencies

In his decision, however, the presiding judge, David Munsu, found inconsistencies in the police evidence about a number of issues, including the alleged call to the boy’s mother.

The judge said that when the police were asked why they had detained everyone in the car, their version ‘changed as the matter progressed.’ They had contradicted themselves, gave versions that were irreconcilable, and added versions that were ‘an afterthought to justify the detention’ of the people in the car who weren’t suspects. There was also no ‘satisfactory evidence’ that the child’s mother was contacted on the evening of the arrests.

He added, ‘The police witnesses conceded that had they not detained everyone … travelling with the suspect, the [boy] would not have spent the night at the police station’. This was particularly so since the alleged suspect was not the driver of the vehicle. Had they not detained everyone, then ‘without a doubt, the court would not be hearing this case.’

Conceded

The boy clearly knew his way to his grandmother’s house in Uukuvu, said the judge. If only the police had ‘bothered to take him to his grandmother’, he could have shown them the way. One of the police inspectors who gave evidence conceded that the boy ‘should have been taken home’ and that, apart from the suspect, the rest of the group ‘should not have spent the night at the police station.’ This concession was ‘rightly made’, said the judge.

The child’s movements on that day were entirely dependent on the relatives with whom he was travelling. His liberty was taken away when the police detained him and his relatives. Even though the police claimed that the boy and the relatives, apart from the suspect, weren’t arrested – pointing to the fact that their names weren’t reflected in the police books where arrested individuals are listed – this didn’t matter. The fact is that they were all ‘detained by the police.’

Munsu held that the evidence pointed ‘inexorably’ to the conclusion that the boy was ‘deprived of his liberty’ by police: ‘that is, he was arrested …. I hold that [the minister] has failed to establish that the arrest and detention of the [boy] were lawful.’

Anguish

Similarly, the police conduct was actionable in respect of the boy’s father who ‘spent the night in anguish’ about his missing son.

The court therefore awarded the boy N$15 000 for arrest and detention and a further N$10 000 for pain and suffering, while the father was awarded N$10 000 for mental anguish and distress. Interest of 20% is payable on these awards and the police are also liable for costs of the litigation.

Though this appears a satisfactory ending to the matter, it doesn’t get to the root of the problem. Namibian police often face litigation in cases where they have acted unconstitutionally, apparently believing themselves above the law.

But because the resulting cases attract comparatively small awards, the police simply carry on as before. The result is a growing lack of trust and confidence in the police by the people of Namibia. It’s high time that the police were held to account on an issue that should be of serious concern to the authorities in that country.

Carmel Rickard

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