Windhoek-Albertus Ganeb, the former police constable accused of fatally stabbing his two sons in a fit of jealousy over suspect text messages on their mother’s cellphone, wants the judge presiding over his trial to recuse herself from the proceedings.
He feels the judge, who presided over his trial, was biased.
Ganeb lodged the application at the Windhoek High Court at the Windhoek Prison premises when he accused Judge Dinah Usiku of favouring the State in his murder trial.
According to Ganeb, the court’s rulings, comments or conduct are biased in favour of the State and against him. He appeared in person, as his state lawyer, Boris Isaacks, withdrew from the case after Ganeb accused him of incompetence.
He claimed the court intervened on various occasions when his lawyer was busy with cross-examination and “protected or shielded” witnesses from answering pertinent questions.
Ganeb further claimed Judge Usiku was unduly uncompromising when she ruled on objections from the State and ordered the defense to move on when they were still pursuing a line of questioning. This, he said, was done without just cause and had the effect of curtailing thorough cross-examination. He quoted Section 166(3)(a) of the Criminal Procedure Act that is dealing with cross-examination and re-examination of witnesses. The section states: “If it appears to the Court that any cross-examination contemplated in this section is being protracted unreasonably, the court may request the cross-examiner to disclose the relevance of any line of examination and may impose reasonable limits on that cross-examination regarding the length thereof or regarding any particular line of examination.”
According to Ganeb, the court erred in law and /or fact when it did not follow the guidelines of the section in question and just unilaterally ordered the defense to move on to the next question instead of establishing the relevance of the line of questioning.
“I am of the opinion my right to a fair trial, as guaranteed by Article 12 of the Namibian Constitution, is being threatened by the unjust decisions of the court and this gives me an opinion that justice will not be seen to be done” (sic), Ganeb stated.
He quoted an earlier judgment where it was stated that justice must not only be done but must also manifestly be seen to be done. He further said the court failed in the execution of its duties and responsibilities to ensure a fair trial because of the non-compliance and incompetency of a judicial officer.
He further said impartiality of a judge goes to the heart of the matter and is fundamental to a fair trial. “Impartiality requires a mind open to persuasion by the evidence and the submissions by counsel. Lack of impartiality may well form the basis of an apprehension of bias,” Ganeb
State Advocate Palmer Khumalo opposed the application.
Ganeb is facing two murder counts for the death of his sons and, in addition, faces another two assault charges with intent to do grievous bodily harm for allegedly assaulting the mother of the deceased boys, Romilly Swartz, once in October 2013 and again in 2014.
He denied all charges at the start of his trial and claimed that he was so intoxicated that he cannot remember anything.
The bodies of the two boys, Romeo (7) and Gregory (4) Swartz, were found by police officers in pools of blood on the evening of April 25, 2014, at his house in Gobabis when they went to talk to him after receiving a complaint of threatening text messages he sent.
Romeo was found dead in the living room with four stab wounds to the head, while Gregory was found still alive in a bedroom with at least six stab wounds on his body and head. He died six days later in hospital.
Judge Usiku said she will deliver her ruling on the recusal application on April 5.