Special Issue: Exploring sentencing purposes, principles and practices in Namibia

• Published date: 06 July 2020
• Pages: 23-44
• Author: Liebenberg, J.C.
• Date: 06 July 2020
• Citation: (2020) 33 SACJ 23

Exploring sentencing purposes,

principles and practices in

Namibia

JUSTICE CHRISTIE LIEBENBERG∗

and NDJODI NDEUNYEMA**

ABSTRACT

This art icle critiques the tradit ional purposes of sente ncing found in

Namibian law, as developed through the cour ts: retribution, deter rence,

incapacitation and rehabilit ation. The article propo ses that more developed

sentencing purposes be leg islatively prescribed. Sentenc ing purposes are

to be distingui shed from the three pri nciples of sentencing whereby courts

are required to consider the cr ime, the offender and the interests of society.

This is the so -called tri ad of Zinn. The ar ticle offers reform proposals

to overcome its nding that the tr iad of Zinn is too basic, lega lly vague

and insufciently r igorous, as well as to ensure th at sentencing principles

are more responsive to victim s of crime. The ar ticle also critiques t he

Supreme Court’s decisions on the uncon stitutionalit y of life sentences and

mandatory mi nimum sentences and asses ses the impact of these deci sions

on sentencing practices in Nam ibia. The art icle concludes by evaluating

potential legislative and polic y reforms to address the is sue of inconsistent

approaches to sentencing in Namibia.

1 Introduction

While sentences are imposed in Na mibian crimi nal courts almost on

a daily basis, there is scant Nam ibian scholarship that analyt ically

engages with sentencing issues. This ar ticle offers an appraisal

of Namibian sentencing by critically consider ing the purposes of

sentencing, the applicable principles and the practice of sentencing

in Namibian court s. The piecemeal legislation that has been enacted

on sentencing in specic areas of cri minal offending is exam ined

from the perspective of how the courts have applied, interpreted and

developed sentencing, particularly as against t he imperatives of the

Namibian Constitution. Gaps th at undermine a consistent approach

to sentencing (which is to be distinguished from consistent sentencing

* LLB (Stellenbosch). Judge of the Hig h Court of Namibia. The authors are g rateful to

Lotta Ambu nda-Nashilundo and Thomas K asita for their research assistanc e on this

article.

** MSc in Crimi nology and Criminal Justice (Oxford ). DPhil LawCandidate, Un iversity

of Oxford.

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(2020) 33 SACJ 23

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outcomes) will be identied with potential opt ions for sentencing

reforms being evaluated.

This article commences w ith a brief historical synopsis. Pr ior to the

European inuence in South West Africa, a s Namibia was previously

known, the societal response to cri me was based upon the customar y

laws and practices of the various indigenous populations. Customar y

law responses to offending continues to apply within the various

Namibian traditional com munities, with a predominant or ientation

towards restorative and reh abilitative just ice objectives.1

With Namibia becoming a Ger man Protectorate in 1884 unti l

1915, 2 the application of the customa ry laws was superseded but

not eradicated. Little is known of the sentencing laws the Ger mans

implemented in Namibia. However, South Africa’s illegal occupation

and administr ation of South West Africa as a ft h province of South

Africa played a signicant role in developing the sentencing laws.

Roman-Dutch and English common law was made applicable to South

West Africa and remain in force under the Nam ibian Constitution,

unless changed or declared unconstitutiona l by a competent court.3

Independence in 1990 saw the coming into force of the Constitution

as the supreme law of the land, thus encompassing the principles of

constitutional supremacy – as opposed to parl iamentary sovereignty4

– and an entrenched Bill of Fundamenta l Rights and Freedoms.5

The sources for crimina l law, procedure and practice thus stem from

an eclectic mix of the Const itution, legislation, customary law and

common law, and international law. After 1990, all sentencing laws

had to be in line with the provisions of the supreme Const itution.

Articles 6 and 8 of the Const itution entrench robust protections by

proscribing the death penalt y in Namibia and rendering human dignity

as inviolable. As a result, previously normalised sentencing regime s

such as the imposition of life imprisonment for the most ser ious

of crimes have been tested on constitutional g rounds.6 Corporal

punishment by any judicial or quasi-judicial authorit y has also been

declared unconstitutional by the Supreme Cour t.7 Neverth eless,

1 See N Ndeunyema ‘Reformi ng the purposes of s entencing to afr m African va lues

in Namibia’ (2019) 63 J Afr L 329; MO Hinz ‘Traditiona l courts in Na mibia – part of

the judiciary? Jur isprudentia l challenges of trad itional justice’ i n N Horn & A Bösl

(eds ) The Inde pendence of the Judiciary in Namibia ( 2008) 149.

2 SK Amoo & I Skeffers ‘T he rule of law in Namibia’ in N Horn & A Bosl (eds) Human

Rights and the Rule of Law in Namibia ( 200 8) 17.

3 Articles 66 (1) and 140 of the Namibian Constitut ion 1990.

4 Article 1(6) of the Namibi an Constitutio n.

5 Chapter 3 of the Namibi an Constitution.

6 S v Tcoeib 1996 (1) SACR 390 (NmS); S v Gaingob 2018 (1) NR 211 (SC).

7 Ex Parte Attor ney-General: In Re Cor poral Punishment by Organs of St ate 1991 NR

178 (S C).

24 SACJ . (2020) 1

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