Windhoek-Police officer George Ndamwoongela, 25, who was found guilty of murder and sentenced in April to 12 years in prison for shooting and killing student nurse Martha Ilonga, was on Friday set free by the Windhoek High Court.
Judges Nate Ndauendapo and Christi Liebenberg set aside his murder conviction and replaced it with one of culpable homicide. They also commuted Ndamwoongela’s 12-year prison sentence and gave him a five-year wholly suspended sentence, on condition that he is not convicted of culpable homicide during that period.
Ndamwoongela had appealed both the conviction and the sentence, that he received in the Windhoek Regional Court in April. He was found guilty of shooting 20-year-old Ilonga, who was a passenger in a car that the police had reportedly suspected of being involved in a robbery.
Ndamwoongela has maintained that he intented to shoot at the tryes of the car, to stop the driver from fleeing, and had no intention of killing the driver or the passenger in the car.
The student nurse was being driven home to Goreangab residential area in Katutura, where she rented a room, when she was shot.
She succumbed to her injuries days later in hospital. Ilonga was studying at the Namibia Health Training Centre in Windhoek at the time.
Judge Ndauendapo, who wrote the judgment in agreement with Judge Liebenberg, said in his view the trial court misdirected itself when it concluded that the only reasonable conclusion to be drawn from the facts was that Ndamwoongela did not aim at the tyres of the vehicle, as he claimed, but at the vehicle itself.
“In my opinion the evidence shows that he indeed aimed at the tyre of the Corolla when he fired the second shot. If that is the case, did the accused have the intention to kill the deceased? The version of the appellant (Ndamwoongela) is that he had no intention to kill the driver or the deceased, but aimed at the rear tyre of the vehicle, because he suspected that the driver was involved in the robbery,” Judge Ndauendapo stated.
He went on to say this version was conveyed by both Ndamwoongela and the officer that was at the scene, Constable Shikomba, to the investigating officer the next day and is therefore reasonably possibly true.
If that was the case, the judge asked, can Ndamwoongela be convicted of a competent verdict of culpable homicide?
“The facts are that the accused had a lethal weapon and was running after a fast-moving vehicle in which persons were when he fired the shot at the tyre,” the judge noted.
“It was therefore not possible to shoot with any degree of accuracy and he must have realised that the shot might hit someone and he failed to take the necessary steps to guard against that eventuality. He is therefore guilty of culpable homicide.”
Regarding the sentence, Judge Ndauendapo said it was only fitting that the court interfere with the sentence, as the murder conviction was replaced with one of culpable homicide.
He said Ndamwoongela was a first offender, a police officer and the shooting incident that claimed the life of the student occurred while he was on duty as a police officer.
According to the judge, Ndamwoongela was under the impression that the Corolla was involved in a robbery and that is why he pursued it. The judge further said Ndamwoongela had asked forgiveness from the family of the deceased and that was an acknowledgement of wrongdoing and remorse.
Ndauendapo said these were weighty considerations the court had to consider. While the offence was a serious one, the moral blameworthiness of the accused was diminished by the fact that he did not intend to kill the deceased. He said although an innocent person lost her life, the circumstances in which the offence was committed should be considered.
“The accused, being a police officer, was pursuing what he believed to be a suspect when he shot the deceased in the course of his duties. He had no intention to kill the deceased, but was negligent in causing the death of the deceased,” he ruled.
Ndamwoongela was represented by Trevor Brinkerhoff on instructions of legal aid. Seredene Jacobs represented the prosecutor-general.