An appeal against a decision by Windhoek High Court Judge Collins Parker to dismiss an application by 26 prisoners serving life sentences, who argued they are eligible for parole after serving ten years of their sentences, had mixed results in the Namibian Supreme Court. In an order made by three judges of the Supreme Court – Dave Smuts and Sylvester Mainga with Chief Justice Peter Shivute concurring – prisoners sentenced to life imprisonment before January 2014 are eligible to be considred for parole after serving 10 years of their sentence. Life sentence prisoners involved in the case are Steve “Ricco” Kamahere, Johannes Witbooi, who was sentenced in March 1988, Andries Ei-Aseb and Joseph Boois, who both say they were sentenced in 1992, Abed Thomas Naobeb, Paulus Shimwefeleni, Thomas Florin, Stefanus Skeyer, Hermanus Slinger, Wilbard Nankema, August Gariseb, Dawid Boois, John Kharuchab, Johannes Paulus Nghishekwa, Dawid Rooi, Patrick Somseb, John Narib, Fred Kavale, Joshua Shifiona, Joseph Hamutenya, Laurentius Koopman, Wynand Adams, Richard Bloodstaan, and Linus Jonas.
Witbooi is the only former death sentence prisoner in the group. He was given the death penalty for his involvement in a triple murder in which his employer’s wife and her two grandchildren were murdered at a farm in the Rehoboth District in February 1987. However, the South African State President commuted his sentence to life imprisonment in February 1989. At issue in the appeal is the regime applicable to offenders serving sentences of life imprisonment and in particular when they may be eligible for parole.
The prisoners who were sentenced to life imprisonment between 1992 and 2003 wanted the Supreme Court to declare that a life sentence maxes at 20 years and that they are eligible for parole after serving half of that sentence, namely 10 years.
They wanted a declaratory order that 20 years must be the maximum term of imprisonment for any offender sentenced to life imprisonment in terms of the Prisons Act No. 8 of 1959; and an order declaring 10 years to be the minimum period of imprisonment for any offender sentenced to life imprisonment in terms of the Prisons Act No. 8 of 1959, before becoming eligible for parole.
The prisoners categorised themselves into three distinct groups with 23 of them that were sentenced prior to the repeal of the 1959 Act by the Prisons Act 17 of 1998, and two Florin (1999) and Skeyer (2003), while the third group are those where the sentencing judge recommended a specific period of imprisonment before the prisoner is eligible for parole.
According to the prisoners a sentence of life imprisonment imposed during the applicability of the 1959 Act meant they would serve a minimum of 20 years and would be eligible for parole after 10 years.
A directive issued by the former Interim Government before independence stated that “prisoners sentenced for life (for which the minimum period of detention is regarded as 20 years for administrative purposes) may be considered for parole after having served at least half of the minimum period”.
According to the prisoners this directive was followed until recently even after the repeal of the 1959 Act on August 1999. Despite this, they said, none of them was considered for parole. For this they sought a declaratory order that it applied to them and the consequent granting of parole. Justice Smuts who wrote the judgment found that the prisoners did establish the right to be considered for parole under the 1959 and 1998 Acts, but not under the 2012 Act that prescribed as 25 years the minimum time to be spent in detention before becoming eligible for parole combined with other conditions. He ordered the appeal to succeed in part and that the High Court order be set aside and replaced with an order that states: Save in the cases of a sentencing court recommending consideration for parole after expiration of a period longer that 10 years, appellants sentenced during the time when Act 8 of 1959 applied may be considered for placement on parole after completion of at least 10 years of their sentences.”
The judge further ordered that in cases where the sentencing court recommended periods longer than 10 years before an offender sentenced during the application of the 1959 Act may be eligible for parole, such further periods would apply. He further ordered the National Release Board to consider those appellants eligible for parole within 90 days from the date of the order.