Namibia: Visits & Communications
Correspondence from 2007
The record of correspondence for 2007 is excerpted from the official United Nations report, A/HRC/4/20/Add.1.
Namibia: Death in Custody of Lazarus Kandara
Violation alleged: Death in custody
Subject(s) of appeal: 1 male
Character of reply: No response
Observations of the Special Rapporteur
The Special Rapporteur regrets that the Government of Namibia has failed to cooperate with the mandate that he has been given by the General Assembly and the Commission on Human Rights.
Letter of allegation sent on 17 August 2006
I would like to bring to your Government’s attention information I have received concerning the lack of progress in the investigations concerning the death of Mr. Lazarus Kandara, a businessman who died of gunshot wounds while in police custody nearly a year ago, on 25 August 2005.
It is my understanding that on 23 August 2005 Mr. Kandara, the CEO of the asset management company Avid Investment Corporation, was heard in a liquidation inquiry before the High Court in Windhoek. In his long testimony, he made allegations seriously incriminating himself and implicating senior SWAPO and government officials in a major corruption scandal. The following day, Mr. Kandara was arrested in the High Court on charges of theft and fraud. He was taken into custody by the police’s Serious Crime Unit. After initial registration, Mr. Kandara was taken home by three officers of the Serious Crime Unit in order to collect a mattress, blankets, clothes and medication. From there, the Serious Crime Unit officers took him to the Windhoek police station. Before entering the police station, however, Mr. Kandara was shot under circumstances that have not yet been clarified. According to statements issued by the police in the days following the incident, Mr. Kandara had pulled out a Baretta 9mm gun, which he apparently had hidden under a blanket wrapped around his shoulders, and had aimed it at the three police officers who were escorting him. He changed his mind, however, and turned the gun on himself, shooting himself through the heart at pointblank range.
In the following days, the Commanding Officer of the Police's Complaints and Discipline Division carried out an internal investigation into the death of Mr. Kandara upon instructions from the Inspector General of the Police. The investigation report of 8 September 2005 found that Mr. Kandara had committed suicide, but that his possession of a firearm was due to the negligence of the Serious Crime Unit members who were involved in his arrest and escorted him to his house and back to the police station. Mr. Kandara’s lawyer reportedly alleges that he had warned the officers of the Serious Crime Unit that Mr. Kandara had expressed the intention of committing suicide in the moments before being taken into custody at the court house. The Inspector General decided the suspension of the Serious Crime Unit officer in charge. The three Serious Crime Unit officers who had escorted Mr. Kandara remained in service.
At the beginning of September 2005, a judicial inquest was started into the death of Mr. Kandara as well. Hearings were held from 22 to 27 March 2006. On 26 June 2006, however, the High Court vacated the inquest on procedural grounds (the magistrate had restricted the legal representation of the police officers during the inquest) and ordered that it must restart from the beginning.
While I do not wish to prejudge the accuracy of these allegations, I would like to draw your Government’s attention to the fundamental principles applicable under international law to this case. Article 6 of the International Covenant on Civil and Political Rights provides that no one shall be arbitrarily deprived of his or her life. When the State detains an individual, it is held to a heightened level of diligence in protecting that individual’s rights. As a consequence, when an individual dies in State custody, there is a presumption of State responsibility. In this respect, I would like to recall the conclusion of the Human Rights Committee in a custodial death case (Dermit Barbato v. Uruguay, communication no. 84/1981 (1990)):
“While the Committee cannot arrive at a definite conclusion as to whether Hugo Dermit committed suicide, was driven to suicide or was killed by others while in custody; yet, the inescapable conclusion is that in all the circumstances the Uruguayan authorities either by act or by omission were responsible for not taking adequate measures to protect his life, as required by article 6 (1) of the Covenant.”
International law further requires from your Government a “thorough, prompt and impartial investigation” into all cases of custodial death (Principle 9 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions).
The delays in determining the dynamics of and responsibility for Mr. Kandara’s death are all the more a matter of concern in the light of reports that Kandara’s death is being used by Dr. Sam Nujoma, the President of SWAPO, in public threats against political opponents. According to reports I have recently received, during a public meeting held at the Nathaniel Maxuilili Centre, Babylon Township, Windhoek, on the afternoon of 30 July 2006, Dr. Nujoma threatened the leadership of the Ex-PLAN Combatants Committee (an association of veterans of the People’s Liberation Army of Namibia, PLAN), by stating that “[t]hose who are demanding compensation are bandits just like Kandara. They must remember that we still have guns, and those of you who side with them, we will shoot you”. This threat was understood as being directed primarily against the President of the Ex-PLAN Combatants Committee, Ms. Ruusa Malulu. (I am aware that the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression brought these threats to your Government’s attention in a communication dated 11 August 2006).
Moreover, it is my responsibility under the mandate provided to me by the Commission on Human Rights, reinforced by the appropriate resolution of the General Assembly, and extended by the Human Rights Council, to seek to clarify all cases brought to my attention. Since I am expected to report on these cases to the Human Rights Council, I would be grateful for your cooperation and your observations on the following matters:
1. Are the facts alleged in the above summary of the case accurate?
2. Please provide an update on the current status of the inquest into Mr. Kandara’s death and of the disciplinary proceedings against the four officers of the Serious Crime Unit involved.
3. Have any criminal prosecutions been undertaken in relation to Mr. Kandara’s death?
4. Please indicate whether compensation has been paid to the family of Mr. Kandara. In relation to this question, I would like to point out that the above-mentioned presumption of State responsibility for cases of custodial death means, inter alia, that States must make reparations to the families of victims absent proof the State has no responsibility for the custodial death.
5. Please provide the details, and where available the results, of any inquiry into the threats uttered by Dr. Nujoma on 30 July 2006 and of any security measures adopted in favour of Ms. Rusulu.
Correspondence from 2003
The record of correspondence for 2003 is excerpted from the official United Nations report, E/CN.4/2003/Add.1.
Urgent appeal
On 20 September 2002, the Special Rapporteur, jointly with the Special Representative of the Secretary-General on human rights defenders, sent an urgent appeal to the Government of Namibia regarding Phil Ya Nangoloh, head of the Namibian National Society for Human Rights. According to the information received, on 30 May 2002, Mr. Nangoloh received an anonymous telephone call in which his interlocutor warned him “to be very careful as there is a plan by Tshirumbu’s people to kill you by means of a staged vehicle collision”, the reason being that Mr. Nangoloh “is always criticizing the human rights record of the Government”. The term “Tshirumbu’s people” is allegedly understood to refer to the national intelligence agency led by Peter Tsheehama, also known as Peter Tshirumbu. Mr. Nangoloh allegedly filed a complaint with the police which reportedly failed to investigate the threat. It is reported that this threat was not the first. In November 2000, Mr. Nangoloh was allegedly the subject of indirect threats in a letter to the newspaper the Windhoek Observer, entitled the “National Society for Human Rights a high risk organization” in which the anonymous author reportedly warned Mr. Nangoloh that if he was to continue his human rights activities, he might well have a car accident. Other threats against him were reportedly made on radio programmes in 2000 and 2001.
Correspondence from 1983-2002
The United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions has been corresponding with Governments regarding alleged violations since the mandate was established over two decades ago. While the Project on Extrajudicial Executions is making efforts to provide easily browsed versions of as many years as possible, much of the earlier correspondence is available only in the PDF versions of reports from 1983 to the present.