No constitutional protection against re-arrest for same crime



“There is no provision in the Namibian Constitution guaranteeing a right not to be arrested more than once for the same offence when no trial had taken place in respect of an earlier offence after an earlier arrest,” Acting High Court Judge Boas Usiku pointed out this week.

The acting High Court judge made the remarks when he dismissed a challenge by a former police officer accused of killing his two young sons by stabbing them, who claimed his re-arrest after initial release was unconstitutional.

Albertus Ganeb, 31, claimed through his State-funded lawyer, Afrika Jantjies, that his re-arrest was unlawful and infringed on his constitutional rights as his case was provisionally withdrawn in the magistrate’s court. Jantjies argued before that according to the Criminal Procedures Act (CPA), an accused cannot be re-arrested after his case was provisionally withdrawn by a magistrate.

Ganeb was released in October last year after the State failed to convince a magistrate to postpone the matter further for obtaining forensic evidence and the case was then struck from the roll. Ganeb was, however, later rearrested.
According to Acting Judge Usiku, the contention of Ganeb that his arrest on January 25 constituted a violation of his fundamental rights guaranteed under the Namibia Constitution has no foundation and no substance.

“There is nothing in Article 7, or Article 11 of the Constitution that prohibits a person, who was previously arrested, but released before plea on the merits from being arrested again for the same offence when no trial had taken place in respect of the earlier offence after the earlier arrest. It is, therefore apparent that in our jurisdiction there is no fundamental right not to be arrested for the same offence more than once guaranteed by our Constitution,” he said.

In the circumstances, Acting Judge Usiku found that Ganeb was liable to be re-arrested anytime on or after October 19, 2015 after his release once police investigations had been completed.

“It, therefore, follows that the striking of a criminal matter from the roll before plea, and the subsequent release of an accused person from custody, does not operate as a bar to the re-arrest of an accused person on the same charge.”
With regard to the bail application Ganeb lodged in case of just such a scenario, Usiku said it would not be in the interest of society or justice to release Ganeb on bail.

“I am of the opinion that the applicant poses a potential threat to innocent members of society and in particular to the complainant (Romily Swartz) and those who are close to her. The nature of the threat is such that there are no conditions that may be set to mitigate the risks the applicant poses to society if released on bail,” the acting judge stated.

Ganeb faces charges of having stabbed his seven-year-old son to death on April 25, 2014 and also of having fatally stabbed his four-year-old son at least six times on his body and head, causing the boy to die six days later in hospital.

He is further accused of assaulting Romily Swartz, the mother of the deceased boys – once in October 2013 and again in 2014. According to the indictment, the two boys, Romeo and Gregory Swartz were in the custody of Ganeb in Gobabis on the day in question.

Ganeb’s trial has now been set down to start on October 24 and he must remain in custody until such time.
Deputy Prosecutor General Advocate Antonia Verhoef represented the State during the bail application.


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