Penal Policy Not Crime’s Panacea – Damaseb


By Mbatjiua Ngavirue WINDHOEK Sentencing practices do not support the generally held view that the courts are soft on violent crime, according to Judge President of the High Court Petrus Damaseb. Speaking at the opening of the High Court legal year on Monday, Damaseb said: “The sentences imposed by the Namibian courts for violent crimes are severe, indeed very severe.” His own suspicion, he said, is that there is frustration because there are no signs of violence abating, notwithstanding the heavy sentences. Damaseb suggested the best approach to the problem was to look at the causes of crime and design appropriate social policies to respond to them. “That is a political function. No doubt, penal policy must form part of society’s response to crime, but it must not be seen as the panacea to the problem,” he said. This is because there are limits to what the courts can do, since even the “foulest criminal deserves a measure of compassion”. Damaseb reminded people that the Namibian Constitution protects criminals against being subjected to cruel and inhuman punishment. In meting out punishment, judicial officers seek to strike a balance between the interest of society and that of the criminal by exercising their discretion. “It is a very delicate exercise that requires the public’s understanding – not condemnation. If the trial court gets it clearly wrong, there is the [appeals] process to correct it – both ways,” Damaseb appealed. He nevertheless deplored the fact that violence had become what he described as the medium for social discourse. “People resort to it all too readily: in relationships in settling scores with others; and especially by men seeking sexual gratification,” he lamented. Speaking earlier at the same occasion Minister of Justice and Attorney-General Pendukeni Iivula-Ithana outlined her own views on the need for sentencing reform. She expressed unhappiness over sentencing disparities, saying the country’s system – based on indeterminate sentencing – has serious shortcomings. She proposed that efforts be directed towards modifying sentencing practices to establish more detailed criteria for sentencing and to establish new sentencing institutions and procedures. This, she explained, is a critical issue in light of the Ombudsman’s recently released report on the generally poor prison conditions prevailing in Namibia. The report highlighted increasing levels of trial-awaiting and convicted prisoners, which was a direct consequence of increasing criminality. According to Iivula-Ithana, it is also a critical issue in the light of the ever-escalating costs of running custodial institutions and rampant prison escapes reported around the country. She proposed that consideration should be given to sentencing reform aimed at reducing disparity, and increasing sentence uniformity, proportionality and precision. “There should be uniformity and proportionality with respect to who goes to prison, and for how long. “There should also be uniformity and proportionality such that offenders convicted of more serious offences receive more severe sanctions. Such reforms should also be geared at achieving racial parity in sentencing,” she argued. Such a system would ensure that judicial officers retain the discretionary power to base their decision on the individual offender, and ensure utilitarian goals continue to play an important role in those decisions. The benefits, she said, would be better charging decisions by prosecutors, more guilty pleas and faster disposition of criminal cases.