"An evaluation of some aspects of the new Criminal Procedure Act of 2004 in light of Article 81 of the Namibian Constitution with special reference to the jurisprudential development since independence"

Abstract

Abstract provided by author

The new Criminal Procedure Act promulgated in 2004 intends to replace the Criminal Procedure Act of 1977 upon which Namibian criminal law and procedure is currently based. The Namibian Criminal Procedure Act of 2004 is based on the 1995 amendments of the South African Act. The Act is not yet in force however, one it is signed by the President and made official law in the country, it will bring about substantial changes to the criminal justice system and criminal procedure in Namibia

The new Act contradicts certain decisions of the Namibian Supreme Court. The Supreme Court held that the state should disclose its case to the accused person to whom the charge relates and provide him with sufficient particulars in order for him to prepare his case. This is also in terms of the Old Act of 1977. Further, that the defence is not obliged to disclose its defence and its case as this is a violation of an accused's right to a fair trial, right to remain silent and his right not to incriminate himself. However, the new Act compels the state and the accused to disclose their cases. This is contrary to an accused's right to a fair trial and could be declared unconstitutional by the Namibian High Court or Supreme Court once the Act becomes law

The Namibian High Court in the Anton Lubowski murder case granted bail to the accused on the basis that an accused person has the constitutional rights to be presumed innocent until proven guilty and the right to liberty. The court upheld the accused's constitutional rights however; the new Criminal Procedure Act imposes much stricter guidelines for the granting of bail and focuses more on the victim and the interest of justice. As a result, the accused's chances for bail are limited. These Supreme Court judgments are contradicted by the new Criminal Procedure Act in terms of Article 81 of the Constitution which provides that a decision of the Supreme Court can be contradicted by an Act of Parliament lawfully enacted. The questions ion this regard is: What would be the effect of such remedy (contained in Article 81) on the Namibian Criminal Justice System and the extent to which Parliament can make use of this remedy and what are Parliament's reasons, aims and motives for passing such an Act that would be potentially unconstitutional?