WINDHOEK – The man who was sentenced to an effective 75 years imprisonment for sexually violating and killing a two-year girl, has been granted leave to appeal his sentence following the Supreme Court ruling that sentences in excess of 25 years imprisonment are unconstitutional as they deprive the hope of release for any accused.
Oshakati High Court Judge Herman January granted convicted child rapist and killer, Fanny Mahamba, saying that the Supreme Court further heard that “the absence of a realist hope of release for those sentenced to inordinately long terms of imprisonment would in accordance with this court offend against the right to human dignity and protection from cruel, inhumane and degrading punishment”.
Mahamba had pleaded guilty to one charge of abduction, two charges of rape and one charge of murder. He was convicted of mercilessly killing two-year old Namushi Dorkas Pumulo after he first raped her and then sodomised her on February 13, 2014. During his trial, Mahamba told the judge that he strangled and broke the little girl’s neck because he did not want anyone to find out he raped her.
At the time of his sentencing, Judge January said Mahamba was lucky the death penalty has been abolished and that a term of life imprisonment, meaning life in prison without the possibility of parole, has been found unconstitutional by the Supreme Court.
Mahamba was sentenced to seven years for the abduction conviction, 20 years each on the rape convictions and 35 years on the murder conviction. It was however ordered that the sentence on the abduction count run concurrent with the sentence on the first rape count, leaving an effective 75 years.
But, Judge January further stated that in his view, the general interpretation that there is a ceiling of 37 and half years in the Supreme Court judgment that declared long sentences unconstitutional is wrong and in contrast to the additional judgement of Acting Judge of Appeal Theo Frank.
“In my view, Frank AJA wrote, the additional judgment is to warn against such interpretation. I know that there are thoughts that the Geingob judgment (that declared the long sentences unconstitutional) is now limiting the High Court’s unlimited jurisdiction. In my view it is not. I agree that life imprisonment is the most severe form of imprisonment and that is not unconstitutional”, the judge stated. He further quoted from the Frank judgment and said the references in the cases referred to Appeal Judge Dave Smuts that imprisonment for life without the hope of release prior to death renders such imprisonment cruel and inhuman and deprive such person of his or her dignity, cannot be read in isolation and must be seen in the context of life imprisonment only. He said that if a person sentenced to life imprisonment does not meet the relevant criteria to be granted parole, such prisoner must remain in prison and live out the rest of his life in prison. According to him, the condition of being a prisoner does not, in itself, amounts to cruel, inhuman or degrading treatment or punishment. “What is cruel, inhuman and degrading is to be given inordinately lengthy terms of imprisonment with the purpose of preventing release at all (because the term of imprisonment would obviously, even taking parole provisions in consideration, extent to beyond life expectancy of the prisoners, e.g. 150 years or to circumvent the provisions governing the right to apply for parole after having served 25 years of imprisonment.”