American murder accused Kevin Townsend has instituted civil proceedings against the government for what he alleges was his unlawful detention in solitary confinement in Windhoek prison.
He is suing the Government of Namibia, the Ministry of Safety and Security, the Commissioner General of Correctional Services and the Permanent Secretary of Safety and Security for N$3 million.
The permanent secretary, represented by Advocate Mkululi Khupe of the Government Attorney’s Office, is opposing the lawsuit.
Khupe wants the court first to sort out the issue of security for costs, as he claims that Mbanga Siyomunji, who was appointed by the Directorate of Legal Aid to represent Townsend in the criminal trial, had not been appointed to appear for the litigant in the civil case.
Judge Thomas Masuku, who is hearing the civil case, informed the parties that all the outstanding issues, including security for costs, will be sorted out during the case planning, and postponed the matter to October 26 for a case management hearing.
Townsend claims he has been kept in solitary confinement at the Windhoek Correctional Services Facility for trial-awaiting inmates since July 2014, and that he was only released on January 15 this year after an intervention involving legal threats by his lawyer.
His co-accused, Marcus Thomas, has also complained about being locked up in solitary confinement, with only one hour of exercise time per day. He unsuccessfully attempted to escape in November 2014, which ended in him hanging from the bottom of his trousers from the prison barbed-wire fence for two hours. He was then sent for several sessions of psychiatric observation, which is still the subject of a court enquiry.
In an affidavit prepared by his state-funded legal representative in his criminal trial, Townsend claims he was unlawfully and wrongfully detained in solitary confinement – in violation of the Namibian Constitution – in a single cell. He added that this is also in violation of the statutory provisions of the Correctional Services Act 9 of 2012, and further in violation of international treaties signed and ratified by the government. These include the International Covenant on Civil and Political Rights and the United Nations Convention Against Torture, which he says are legally binding on all signatory parties.
He further posits that the confinement was committed by several officers of Namibian Correctional Services in the employ of government, adding that accordingly the said officers were acting within the course and scope of their employment, and as such the government and the Ministry of Safety and Security are “vicariously liable for the aforesaid unlawful and wrongful acts and omissions of the aforesaid officers”.
“During the aforesaid period of solitary confinement, the plaintiff was given inhuman treatment and deprived of any contact to any person, with the exemption of the dates when he would appear in the High Court of Namibia,” Townsend’s court statement reads.
It continues: “The aforesaid confinement was a gross violation of the inalienable rights of all members of the human family, unconstitutional and unlawful, because it violated one or more of the following rights of the plaintiff.”
“These are the right not to be deprived of liberty in accordance with the procedures established by law as contemplated in Article 7 of the Namibian Constitution; the right not to be arbitrarily detained as contemplated in Article 11(1) of the Namibian Constitution; the right to dignity as contemplated in Article 8(1) of the Namibian Constitution; the right to dignity respected during judicial proceedings and proceedings before another organ of State, as contemplated in Article 8(2)(a) of the Namibian Constitution; the right against torture, cruel, inhuman and degrading punishment and treatment as contemplated in Article 8(2)(b) of the Namibian Constitution; the rights under the Correctional Services Act of 1998.”
According to Townsend, the conduct was unlawful and wrongful and an invasion of his individual dignity, and consequently unconstitutional, and as a result he suffered general damages, physical and emotional pain and suffering, injury to his inherent dignity, an invasion of his individual dignity and inalienable rights as provided for in Chapter 3 of the Namibian Constitution, and his reputation, in the amount of N$3 million.
Townsend and Thomas are currently on trial for the murder of Andre Heckmair, who was killed with a single gunshot in the back of his head on January 07, 2011 at Gusinde Street in Windhoek, and for robbing him of his cellphone and wallet containing at 100 Swiss Franc.