American sues govt for N$3 million

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Roland Routh

Windhoek-One of the American men currently facing a murder charge in the Windhoek High Court is suing the Government, the Ministry of Safety and Security, the Commissioner General of Correctional Services and the Permanent Secretary of Safety and Security for N$3 million for degrading and inhumane treatment.

Kevin Townsend and his compatriot, Marcus Thomas, face one count of murder, one count of robbery with aggravating circumstances, three counts of contravening the Ammunitions Act and one count of defeating or obstructing or attempting to defeat or obstruct the course of justice in relation to the murder of Andre Heckmair on January 7, 2011 at Gusinde Street in Windhoek.

Towsend and Thomas were moved to single cells on July 4, 2014 after prison authorities received information that the two were planning to escape, but were returned to the general population in January 2015.
Thomas eventually staged a failed escape attempt, which left him hanging upside down from a two-metre high fence for two hours.

In an affidavit prepared by his State-funded legal representative in his criminal trial, Townsend claims he was unlawfully and wrongfully detained in violation of the Namibian Constitution, in solitary confinement, in a single cell unit, and 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 government.

These include the International Covenant on Civil and Political Rights and the United Nations Convention Against Torture, which he says is legally binding on all signatories party to them.

“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,” the statement read.

It continued: “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.”

He listed these as the right e He 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, and injury to his inherent dignity and an invasion of his individual dignity, his inalienable rights as provided for in Chapter 3 of the Namibian Constitution and reputation in the amount of N$3 million.

The Permanent Secretary opposed the suit and while admitting the confinement of Townsend in a single cell, said the separation of Townsend and Thomas was done due to a reasonable apprehension they were planning to escape, for security reasons and because they acted in a manner conflicting with the order and discipline of Correctional Services.

The defendants further plead that the separation of Townsend was authorised by Section 103 of the Correctional Services Act, which states, inter alia, that inmates may be separated from the general population “where the officer in charge considers it necessary to secure or restrain an offender who has displayed or threatened violence; been recaptured after escape from custody or in respect of whom there is good reason to believe that he or she is contemplating to escape from custody or for any other security reason.”
The case continues today before High Court Judge Shafimana Uitele.

Townsend is represented by Mbanga Siyomunji and the defendants by Advocate Mkululi Khupe of the Government Attorney’s Office.

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