More than three years after he was acquitted on a charge of possession of a firearm and ammunition without a license, murder and robbery convict Festus Nepembe Kiimba, who is serving a 35-year jail sentence, was convicted on that charge in the Supreme Court.
Judge of Appeal Dave Smuts, in agreement with Chief Justice Peter Shivute and Acting Judge of Appeal Fred Chomba, set aside the acquittal and substituted it with a guilty verdict.
Kiimba, 33, was convicted together with Max Kleopas, 29, and Josef Taukondjo Shikongo, 31, of murdering Windhoek resident Cornelius Jacobus Swiegers on January 18, 2007 at Goreangab Dam.
They were also convicted of robbing the deceased’s friend, Georgivis Pierre Isaaks and his daughters, Raygene and Nicole Isaaks.
The judge, however, found that no evidence was produced that the firearm used in the tragedy was in any way connected to the pistol that was before court. That pistol was proved to be the lawful property of one Frans Dikola, who testified that he was robbed of his pistol at Otjomuise eight days before the murder.
The judge concluded that the charges of possession of a firearm and ammunition without a license were not proven and acquitted all three on those offences, but convicted them on the murder and robbery charges, and sentenced them to 25 years each for the murder and ten years for the robbery.
It was ordered that the sentences run consecutively. It was this judgment that gave rise to the appeal against the acquittal of Kiimba, who was found to have been the person in possession of the firearm and the one who shot the deceased.
According to Judge Smuts, who wrote the unanimous appeal judgment, the evidence established beyond reasonable doubt that Kiimba was in possession of the firearm and ammunition without a license.
This was established from evidence led by the prosecution and from the confession of Kiimba, in which he admitted on more than one occasion that he was in possession of a firearm at the time of the fatal shooting and that he had in fact fired the fatal shot from the firearm in his possession.
The judges of appeal found that the High Court erred when it found that the State needed to establish that the firearm had been used in the commission of the other crimes in order to convict Kiimba, or any of his co-accused, of illegal possession of a firearm and ammunition.
“In the end” the judges of appeal said, “it follows that the acquittal of the respondent in respect of counts 3 and 4 is to be set aside and replaced by a conviction on both counts”.
On deciding what sentence to impose, Judge Smuts said he took into account the fact that the firearm was used in the commissioning of a very serious offence. However, he said, given the fact that the offences are interrelated, a sentence of three years to run concurrently seems appropriate.
He said that two of the three years on each count must run concurrently with the 10 years on the robbery count.
The judge further declared Kiimba unfit to possess a firearm for a period of ten years after completing his term of imprisonment.