Criminal Procedure Act 51 of 1977

What does the law do?

As its name indicates, this law governs procedure in
criminal cases.

What is the purpose of the law?

This law regulates every aspect of the criminal justice process, from
arrest and bail to trial and sentencing. It is a long law that covers many
issues. To understand the law well, it is important to consider some of
the many court cases that have applied and interpreted it. This short
summary will describe only a few aspects of the law that are of broad
public interest.

When did the law come into force?

22 July 1977. This is a South African law that was made applicable to
Namibia, before Namibian independence. South Africa continues
to have a law with the same name and number, but the Namibian
version is different from the South African version because different
amendments to the statute have been made in the two different countries.

In 2004, the Namibian Parliament passed the Criminal Procedure Act 25 of 2004. This 2004 law was
intended to replace the 1977 law, but stakeholders realised that there were some problems with the
2004 replacement version. The 2004 law was repealed by the Criminal Procedure Act Repeal Act 14 of
2018 without ever being brought into force.

What does the Namibian Constitution say about criminal procedure?

The table on the next page contains a simple summary of some of the key points in the Namibian
Constitution about criminal proceedings.

STATUTE SUMMARIES
Legal Assistance Centre Criminal Procedure Act 51 of 1977  1
 Summary of key constitutional provisions relevant to criminal cases

Protection The death penalty will not be imposed in Namibia.

of Life –
Article 6

Protection Procedures set out in law must be followed when anyone is deprived of their personal liberty.
of Liberty –
Article 7

Respect Human dignity must be respected in all court proceedings and in the enforcement of penalties.
for Human No one can be subjected to torture or to “cruel, inhuman or degrading treatment or punishment”.
Dignity – The Namibian Supreme Court has said that this means that physical punishment for a crime
Article 8 (such as whipping and caning) is no longer allowed.1 The Supreme Court has also said that
long prison sentences and even life imprisonment are constitutional as long as there is some
possibility of release on parole.2

Arrest and No one can be arrested or detained arbitrarily. Anyone who is arrested must be promptly
Detention – informed of the basis for the arrest. Anyone who is arrested must be brought to a magistrate or
Article 11 a judge within 48 hours of the arrest – or “if this is not reasonably possible” as soon as possible
after that time period. No one can be kept in custody after that unless the magistrate or the
judge has authorised it.

Fair Trial – Everyone accused of a crime is entitled to a fair hearing by an independent, impartial court.
Article 12 The press and the public can be excluded from a criminal trial only for reasons of morals, public
order or national security, as necessary in a democratic society. Judgments in criminal cases
must be given in public, except where the interests of juveniles or morals require otherwise.
The criminal trial must take place within a reasonable time. Otherwise, the accused must be
released. The Namibian courts have said that what qualifies as a “reasonable time” will be
different in different cases, depending on factors such as the reasons for the delay, how much
the delay has negatively impacted the accused and the public interest.3
Anyone charged with a crime is innocent until proven guilty, after they have had a chance to call
their own witnesses and cross-examine the witnesses against them.
Anyone charged with a crime has a right to be defended by a legal practitioner of their choice. They
must be given adequate time and facilities to prepare and present their defence. The Namibian
Supreme Court has said that this means that the State must provide legal representation to a
person who cannot afford their own lawyer, if failing to do so would prevent the accused person
from having a fair trial.4
No one can be forced to give evidence against themselves or their spouses (including spouses
in a civil or a customary marriage).
Confessions obtained by torturing suspects cannot be used as evidence against them.
No one can be tried, convicted or punished more than once for the same crime.
No one can be tried or convicted for a crime that did not exist at the time. The law cannot make
something into a crime retroactively.

Presidential The President has the power to pardon or reprieve a convicted offender, with or without
pardons – conditions. In practice, this power has been used to grant blanket pardons to certain categories
Article 32(3)(d) of prisoners.

1
Ex Parte Attorney-General, Namibia: Re: Corporal Punishment by Organs of the State, Supreme Court, 1991
2
S v Tcoeib, Supreme Court, 1999; S v Gaingob, Supreme Court, 2018
3
These are some of the cases that have discussed this questions: S v Nunes, High Court, 2001; S v Strowitzki, High Court, 1995;
S v Heidenreich, High Court 1995; Malama-Kean v Magistrate, District of Oshakati, Supreme Court, 2002; S v Myburgh, Supreme
Court, 2008; Mahupelo v Minister of Safety and Security, High Court, 2020.
4
Government of the Republic of Namibia v Mwilima, Supreme Court, 2002 (Caprivi treason trial)

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2  Criminal Procedure Act 51 of 1977 Legal Assistance Centre
Search and seizure
The law gives the police certain powers to search persons and places, and to
seize items that reasonably appear to relate to a crime.

Normally, police must approach a magistrate

or a judge to get a search warrant. The police
must say why they need to do the search, and SEARCH
the warrant will say what persons and places WARRANT

can be searched. Searches that take place in

terms of a search warrant must take place in
the daytime, unless searches at night have been
specifically authorised.

Police may search persons and places without a search warrant in several circumstances:
z if the relevant persons give consent
z if the police reasonably believe that a warrant would be issued, but the delay involved would probably
defeat its purpose (because it would give the suspects time to hide or destroy the evidence).

Police may search a person who has been arrested on a reasonable

suspicion of committing a crime without a search warrant. Police may
seize anything in that person’s possession or control as evidence of
the crime.

Police who are carrying out a lawful search may use “such force
as may be reasonably necessary” to overcome resistance to the
search, including breaking into the relevant place by force – but
they must first demand entrance and explain the purpose of the
search. Police can enter a place without announcing themselves
if they have a reasonable belief that the evidence they are seeking
would be hidden or destroyed if they requested entry first.

It is a crime for police to carry out an unlawful search – which

includes a search that does not comply with the relevant search
Women may be physically
warrant, or a search that does not follow the procedures set out
searched only by a female.
in the law. It is also a crime for anyone to give false information
that leads to the issue of a search warrant.

The law contains rules and procedures about the treatment of items that are seized as evidence. Items
that were used to commit a crime may be kept permanently by the State.

Arrest
A person reasonably suspected of committing a
crime may be arrested. An arrest is not supposed Arrest is not the only way to make sure that
to be a form of punishment, but a way of making someone appears in court. The law also pro­
sure that a person accused of a crime will appear vides for various types of notices calling on
in court for the criminal trial. a person to come to court to face criminal
charges. Anyone who fails to obey such a notice
An arrest can take place with or without a warrant. can be arrested. For example, this procedure
A warrant can be issued by a magistrate or a is common in some traffic violations where
judge if a police officer or a prosecutor provides police give the driver a notice to either pay a
information showing a reasonable suspicion that fine or come to court on a specific date.
a particular crime has been committed.

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Legal Assistance Centre Criminal Procedure Act 51 of 1977  3
There is also a long list of circumstances that justify arrest without a warrant.
They all involve situations where the arresting officer has some personal
knowledge or basis for suspicion that the arrested person has committed
certain crimes – or where there is some other law that authorises arrest
without a warrant in certain circumstances. In such situations, the delay
involved in getting the warrant would probably allow persons who are
strongly suspected of being criminals to escape.

If the person being arrested does not submit voluntarily, then the person
making the arrest must physically touch the accused person or, if necessary,
forcibly confine them.

A person making an arrest can forcibly enter a place to make an arrest, after first demanding entry and
explaining the reason.

The law allows for the use of force in connection with an arrest,
in certain circumstances. But force should be used only as a last
resort. Police should consider other methods first, such as
oral warnings or warning shots fired into the air. The person
attempting the arrest must also consider whether a fleeing
suspect can be arrested at a later stage. For example, if the
suspect can be identified and traced, then the use of force to
make an immediate arrest is probably not justifiable. Any use of
force must also be proportional to the seriousness of the crime.
Police are justified in using force in their own self-defence, or to
protect the life, safety or property of someone else.5

A person making an arrest must explain the reason

for the arrest. If there is an arrest warrant, the Police have a right to demand that a sus-
accused person has a right to a copy of it. pect or a witness to a crime must provide
their correct name and address. Anyone
The person who has been arrested can be confined who refuses to do this can be arrested on
at a police station, or at some other place named in the spot, without a warrant, and detained
a warrant of arrest, until they are lawfully released. for up to 12 hours, until their name and
A release might take place, for example, because bail address have been confirmed. Failure to
is paid, because the charges have been withdrawn supply a name and address is also a crime
or because the person has been tried and found not in itself.
guilty.

What happens after an arrest?

Police may take the fingerprints, palmprints or footprints of anyone who has been
arrested. They can also take photographs, blood samples and DNA samples.6

The Criminal Procedure Act echoes the “48-hour rule” in the Namibian Constitution. It
says that an arrested person must be brought before a lower court within 48 hours of
the arrest – but it also contains some rules that make allowances for the time of day that the court
closes and for days when courts are not operating, and for situations when an accused person is being
transported from one area to another or is too ill to appear.

5
See “Use of force by law enforcement officials in Namibia”, Legal Assistance Centre, 2019, which discusses court rulings about
the use of force during arrests.
6
In the case of S v Eigowab, High Court, 1994, the Court said that refusing to provide a blood sample after being arrested on
a charge of driving under the influence of alcohol makes a person guilty of the crime of obstructing justice. The Court also
said that police can use force to get the sample if the suspect refuses or resists. In the case of S v Gemeng, High Court, 2018,
the Court said that an accused person can similarly be ordered to provide DNA samples as evidence.

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4  Criminal Procedure Act 51 of 1977 Legal Assistance Centre
Courts have also considered when the 48-hour rule in the Constitution can validly
be exceeded. The Namibian Supreme Court has said that relevant factors
might include the availability of a magistrate, police manpower, transport
and the distances involved – but convenience is not a relevant factor. Police
are expected to plan around the 48-hour rule, such as by making sure
in advance that a magistrate will be on hand.7 The Namibian Supreme
Court has also said that the 48-hour rule is a very important human right
because it helps protects people from being held in detention without a
proper reason, and from being tortured or killed without anyone knowing.8

Another very important constitutional right is the right to legal assistance.

Again, this is echoed in the Criminal Procedure Act which says that an
accused person is entitled to legal assistance from the time of arrest
and during any criminal proceedings. This means that police have a
duty to tell an accused person about this right as soon as there
is an arrest. Failure to do so could mean that statements made
to the police by the accused might not be allowed into court
as evidence.9 This also means that the magistrate or judge in
a criminal matter has a duty to inform an accused person of
the right to legal representation.10

The Legal Aid Act 29 of 1990 says that any accused person can apply for State-funded legal aid which
may be provided if the accused person cannot afford to pay a lawyer privately and if it is in the interests
of justice. It is not possible for the State to provide free legal aid for every person accused of a crime
who cannot afford a lawyer. But the Namibian Supreme Court has said that the State has a duty to
provide legal representation where the accused persons would otherwise not have a fair trial as guaranteed
by the Namibian Constitution. This means that, even if there are not enough resources to provide a
lawyer through the scheme set up under the Legal Aid Act, the State must provide legal representation
through other channels if this is necessary for a fair trial. In deciding when the State must provide legal
representation for accused persons who cannot afford their own lawyers in a specific case, factors to
consider include the complexity of the case, the ability of the accused persons to defend themselves
and the seriousness of the criminal charges (which will determine the possible impact of a conviction
on the accused).11

Bail
Bail is the temporary release of a person charged with a crime, after they
provide a deposit of money or some other security. If the accused person does
not come to court for the criminal proceedings, the money or the security they
provided will be forfeited to the State.

There is no right to be released on bail, but every accused person has the right to apply for release on
bail. Because the Namibian Constitution says that an accused person is innocent until proven guilty,
accused persons cannot be kept in detention before trial as a form of advance punishment.12

7
Minister of Safety and Security v Kabotana, Supreme Court, 2014 (agreeing with statements made by the High Court in the
1991 case of S v Mbahapa)
8
Minister of Safety and Security v Kabotana, Supreme Court, 2014 (agreeing with statements made by the High Court in the
1991 case of Sheehama v Minister of Safety and Security)
9
S v Kapika, High Court, 1997; S v De Wee, High Court, 1999
10
S v Mwambazi, High Court, 1990
11
Government of the Republic of Namibia v Mwilima, Supreme Court, 2002 (Caprivi treason trial)
12
S v Acheson, High Court, 1991. (The Criminal Procedure Act was amended after this case was decided to add additional grounds
for denying bail to persons charged with certain serious crimes.)

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Legal Assistance Centre Criminal Procedure Act 51 of 1977  5
Police officers are allowed to release accused persons on bail in the case of certain crimes that are not
too serious. Decisions on bail are otherwise handled by the courts.

Bail can be denied in any criminal case if there is a risk that the accused will run away or interfere with
State witnesses or evidence. Where the accused is charged with certain serious offences – including
treason, murder, rape, robbery, housebreaking, theft and bribery – the court can also take into
consideration the interests of the public and the administration of justice. An accused person who is
denied bail can appeal this decision to a higher court.

If a court grants bail, it will often set conditions for the accused person, such as handing in their
passport, reporting regularly to a police station or having no contact with witnesses or victims.

In cases involving domestic violence or rape, the victim has a right to provide information about any
fears of harm or intimidation that the court should consider before making a decision on bail. The victim
can also make submissions to the court on bail conditions. If a person accused of rape is released on
bail, there must be an automatic bail condition prohibiting any contact with the victim. If the crime
involved domestic violence, the court must impose certain bail conditions unless there are special
circumstances that make them inappropriate:
z a prohibition on contact with the victim
z a prohibition on the possession of any firearm or other specified weapon
z an order that the accused must continue to provide maintenance to the victim and any other
dependants at the same or greater level as before the arrest.

Bail in any kind of case can be cancelled if the accused fails to show
up in court or fails to comply with the bail conditions, or where
there is information showing that the accused is planning to run
away. If bail is cancelled, then the accused will be arrested and
kept in custody until the criminal trial is over.

Once the criminal case is finished, the bail will be refunded –

even if the accused is found guilty.

It is also possible for an accused person who has been arrested to be released “on warning” if the
crime involved is not too serious. This means that the accused person is released without having to
provide bail, and warned that they must come back to court. A person who does not show up after
being released on warning will be arrested.

Pleading to the charge

Before the trial starts, the accused will be asked to plead. The main pleas are “guilty” or “not guilty”.
There are also some other options – for example, the accused person might say that they have already
been found guilty or not guilty of the same criminal charge, or that the court does not have authority
to hold a trial on this criminal charge.

If an accused person pleads “guilty” to any crime other than a minor one, the presiding officer will ask
questions to make sure that the accused really understands all of the elements of the crime that they
are admitting. If this is not the case, then the plea will be changed to “not guilty”.

Criminal trials
Where an accused person pleads “not guilty”, there will be a criminal trial. The trial involves a state
prosecutor on one side and the accused person on the other side. Crime victims may be witnesses
in the criminal trial, but they do not otherwise take part. The State must prove the case against the
accused.

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6  Criminal Procedure Act 51 of 1977 Legal Assistance Centre
Criminal trials may take place in a magistrate’s court, a
regional magistrate’s court or the High Court, depending In some countries criminal cases are
on the nature of the criminal charge and how severe decided by juries made up of people
the possible sentence might be. from the community. Namibia does
not use jury trials. Criminal cases are
Criminal trials are open to the public except in certain decided by the magistrate or the judge.
very limited situations – such as where the accused or a
witness is a child, or the case involves a sexual crime or
domestic violence, or the court must be closed to protect national security, public morals or the safety
of a witness. If all or part of a case takes place behind closed doors, the court can direct that certain
information about that part of the proceedings may not be published by anyone.

The prosecutor acting for the State has the respon­

Only the prosecutor can withdraw a charge si­bility to prove that the accused person is guilty.
or stop a prosecution. In practice, a victim The prosecutor and the accused person can both
who no longer wishes to proceed with a present evidence to support their side of the case.
criminal case can fill out a withdrawal state- Accused persons can be assisted by legal practi­
ment. A prosecutor could continue with the tioners, or they can present their cases in court on
case without the victim’s cooperation if there their own. The accused (or the lawyer representing
was sufficient evidence of the crime. the accused) has a right to question any witnesses
who testify for the State.

There are many rules in the Criminal Procedure Act about how the trial will take place and
what kinds of evidence can be considered. For example, one rule is that a confession made
by an accused person can be considered only if it was made freely and voluntarily,
without undue influence.

Another rule that has been developed in court cases is that a fair trial means that
accused persons must have access to information about the evidence against
them so that they can prepare their defence, unless disclosure of the information
might endanger justice or the public interest. Examples would be where certain
information might endanger an informer or a witness, or where it might disclose
police investigation techniques that need to be kept confidential.13

There is a procedure for converting a criminal trial to a proceeding under the Abuse of Dependence-
Producing Substances and Rehabilitation Centres Act 41 of 1971 for placing a person who is addicted to
drugs or alcohol in a rehabilitation centre, if the prosecutor agrees to this.

Vulnerable witnesses
Some categories of witnesses at a criminal trial are considered
to be “vulnerable witnesses”: children (persons under age 18),
victims of sexual offences, victims of domestic violence at the
hands of a close family member or an intimate partner, or
anyone else who is likely to suffer undue stress or trauma
while testifying. There are various special arrangements
that can be made to make vulnerable witnesses more
comfortable in court:

13
S v Nassar, High Court, 1994; S v Angula; S v Lucas, High Court, 1996; S v Scholtz, Supreme Court, 1998

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Legal Assistance Centre Criminal Procedure Act 51 of 1977  7
z alternative venues for trials, so that they can held in places less intimidating than courtrooms
z testifying behind one-way screens or by means of closed-circuit television, so that the witness
does not have to see the accused
z allowing support persons to accompany witnesses while they are testifying, so that (for
example) a young child could speak to the court while sitting on the lap of a family member
z strict limitations on the use of irrelevant questioning that may intimidate or confuse witnesses
z requiring that questions be asked through the presiding officer or another impartial person,
to make sure that lawyers or accused persons do not try to intimidate or confuse a witness.

The idea is that witnesses who are not frightened or traumatized are likely to give more reliable
evidence that will lead to more just outcomes.

Conviction and sentencing

If there is a reasonable doubt about an accused person’s guilt, the court must make a finding of “not
guilty”. If the State has proved its case, the count will find the accused person “guilty”.

It is possible in some cases for a person who was charged with one crime to be convicted of another
similar crime. For example, a person who was charged with rape might be convicted of attempted
rape or indecent assault instead. The law sets out the rules about this, to make sure that the accused
person had a fair chance to put forward a defence to the crime in question.

After an accused person is found guilty, there will be a separate consideration of the appropriate sentence.
Both the prosecution and the convicted offender may address the court on the issue of sentencing.
The court will consider the crime (including its impact on the victim), the personal circumstances of the
offender and the interests of society.

Possible sentences: The Namibian Constitution forbids the death penalty and any sentence that involve
physical punishment. Many statutes provide maximum sentences that may be imposed for a specific
crime, and a few provide minimum sentences.

In general, a sentence for a crime can be imprisonment, perio­

dical imprisonment, a fine, declaration of the offender as an
“habitual criminal” or confinement to any institution established
by law (such as an alcohol rehabilitation centre). Periodical
imprisonment must include imprisonment for a minimum of 100
hours and a maximum of 2000 hours, but it does not have to
be over a continuous time period. This option has been used in
practice as a punishment for failure to pay child maintenance,
since it can allow the offender to continue working to provide
the maintenance that is owed while still being penalised.

Postponed or suspended sentences: A court may postpone or suspend a sentence for up to five
years, either with or without certain conditions. Possible conditions might include:
z compensation or some other form of benefit or service to the victim
z community service
z submitting to some kind of instruction or treatment
z submitting to supervision by a probation officer
z attendance at a specified centre for a specified purpose
z good conduct during the period of postponement or suspension.

If the offender does not comply with the conditions, the court can order the arrest and detention of
the offender. It can then impose a sentence where sentencing was postponed, or put into operation
a sentence that was suspended.

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8  Criminal Procedure Act 51 of 1977 Legal Assistance Centre
One of the conditions that can be imposed when a sentence is postponed or suspended is community
service. The Namibian High Court has suggested that a court should consider whether the accused is a
suitable candidate for community service and willing to carry it out, who will supervise and control the
community service, what days and times the community service should cover, and how long it should
continue.14 In another case, the High Court said that the offender must be given an opportunity to give
input before community service is required.15

Caution or reprimand: If no law sets a minimum sentence for the crime in question, a court may
decide to release a convicted offender with only a caution or a reprimand.

Appeals, reviews and pardons

A finding of guilt or innocence, or a sentence, can be appealed to a higher court. In other words, an
accused person can appeal a finding of guilt or ask for a lighter sentence, and the Prosecutor-General
can appeal a finding of innocence or ask for a heavier sentence. If one side appeals, the other side can
“cross-appeal” at the same time.

If the accused person did not have a lawyer, the sentence imposed by a magistrate’s court may be
automatically reviewed by a judge of the High Court, depending on a combination of the length of the
sentence (or the amount of the fine) and the magistrate’s years of experience. The High Court can also
review a decision of a lower court in any case where it appears that there may have been some form
of corruption or a fundamental legal mistake in the trial. “Review” means that the judge examines the
record of the case to be sure that there was no error or unfairness. This is an extra safeguard to make
sure that no one is unfairly deprived of their liberty.

Victim compensation
The court that tried the criminal case can award compensation to the
victim, upon application by the victim or prosecutor. This compensation is
designed to make up for property damage or loss.16 The court also impose
compensation for various kinds of losses suffered by the victim as a condition
of a postponed or suspended sentence.17

Juvenile offenders
The law has a few special procedures that apply to juveniles, who are persons
under 18.

Juveniles accused of a crime may be released into the custody of their parent or guardian while
awaiting trial. Alternatively, they may be allowed to stay in a place of safety, such as a children’s home,
until the trial is over. Keeping juveniles in prison or a police cell while they are awaiting trial should be
a last resort, but appropriate alternatives are not always available.

The court will notify a juvenile’s parent or guardian that they must attend the trial, if they can be
located without a long delay. It is a crime for the parent or guardian to ignore a notice to come to court
in these circumstances, unless the court has exempted them from attending for some reason. The
parent or guardian is allowed to assist the juvenile in court.

14
S v Fillemon, High Court, 2013
15
S v Linus, High Court, 2013
16
S v Tjisuta, High Court, 1991; S v Hendriks, High Court, 2004
17
See S v Mila, South African High Court, Orange Free State Provincial Division, 1973; S v P, South African High Court, Cape
Provincial Division, 1986; S v Petrus, High Court, 2006

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Legal Assistance Centre Criminal Procedure Act 51 of 1977  9
The court is always closed to the public during a criminal trial when the accused is under age 18. (A
court may also decide to close a trial to the public when a witness under age 18 is giving evidence, or
prohibit anyone under age 18 from attending a criminal trial if they are not giving evidence.)

No one is allowed to publish information that may reveal the identity of an accused or a witness who
is under age 18 unless the judge or magistrate presiding over the trial has given permission for this.

A court that is conducting a criminal trial may convert the proceedings into a child protection enquiry
if it appears that the juvenile accused may be a child in need of protective services. For example, the
child may have been forced into criminal activity by an adult, or driven into crime by neglect, poverty or
substance addiction. This could mean that the child needs assistance rather than criminal punishment.

If juveniles are convicted of crimes, the law provides some alternatives to placing
them in correctional facilities:
z placing them under the supervision of a probation officer
z placing them in the custody of a suitable person (possibly also with the
supervision of a probation officer)
z placing them in a child detention centre.
One problem is that Namibia does not currently have any specialised child
detention centres in place.

If juveniles are confined in police cells or correctional facilities at

any stage of the criminal process, the Child Care and Protection Act
3 of 2015 contains certain rules that apply unless there is a court
order that says otherwise:
z They must be kept separately from adults, except that they may be in the same room as adults
for meals and exercise, under proper supervision.
z They must be allowed visits by their parent or guardian, as well as by other persons where the
contact is in the best interests of the child.
z They must be kept in conditions that reduce any risk of harm, keeping in mind the special
vulnerability of children.
z They must be kept only with children who are at the same stage of the criminal process, so that
children awaiting trial are detained separately from children who have been convicted.
This law also set up a complaints system that is designed to lead to social worker investigations in the
case of injury or other problems with children in detention.

Some criticisms and possible law reforms

Juvenile offenders: Additional rules and procedures for young offenders are expected to be added by
a forthcoming law on child justice. This law is expected to include procedures for taking children out
of the criminal justice system and putting them into programmes that hold them accountable for their
wrongdoing while also helping them change their ways without having to undergo a criminal trial and
conviction. Diversion programmes are already operating in practice in Namibia, but there is no legal
framework for this approach as yet.

Plea bargaining: Amendments to the Criminal Procedure

Act are under consideration in order to provide for plea
and sentence agreements, more commonly known as
“plea bargaining”. This refers to the situation where the
accused person agrees to plead guilty to a crime while
knowing in advance what sentence will be imposed.
Such nego­tiations typically allow the accused to
plead guilty to a less serious crime than the one
in the original charge. The advantage to the State

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10  Criminal Procedure Act 51 of 1977 Legal Assistance Centre
is that such agreements help to reduce court backlogs, and can sometimes be used to motivate
accused persons to give evidence against crime ringleaders. A bill to add a formal procedure for plea
bargaining was introduced into Parliament in 2021, but withdrawn before it was passed. This proposal
suggested that accused persons should only be allowed to enter into plea bargains if they have legal
representation, to be sure that their rights are protected. It also suggested that the Prosecutor-General
should have the power to issue directives limiting plea bargains to certain categories of crimes, to
make sure that they are not used to allow people who commit serious crimes to avoid appropriately
harsh sentences. The pros and cons of introducing this approach to Namibia’s criminal justice system
are still under discussion.18

Use of force: The rules in the Criminal Procedure Act about

the permissible use of force need attention. These rules
have been qualified by court cases, but this means that
the limits on the use of force are not entirely clear. The
police follow an Operations Manual that has better and
clearer directives about use of force, but this is not
the same as having clear rules in a binding law. The
permissible use of deadly force requires particular
attention, keeping in mind the constitutional right
to life alongside awareness of the practical chal­
lenges of policing, including the need for police
to make split-second decisions under pressure. The rules on the use of force in the law should be
improved to set clear standards that are consistent with the Namibian Constitution and the relevant
international guidelines, while retaining enough flexibility to allow police to carry out their duties.19

“Schedule 1 crimes”: There is a list of

crimes at the end of the Criminal Procedure Schedule 1
Act called “Schedule 1”. Anyone suspected
Treason. Culpable homicide. Sodomy.
of committing one of these crimes can be
Sedition. Rape. Bestiality.
arrested without a warrant. The law also
Murder. Indecent assault. Robbery.
authorises police to use deadly force to
Assault, when a dangerous wound is inflicted.
arrest persons suspected of committing Arson.
these crimes, if this is necessary to make Breaking or entering any premises, whether under the
the arrest. This seems reasonable for some common law or a statutory provision, with intent to
of the crimes on the list – such as murder, commit an offence.
rape, robbery and assault that has caused Theft, whether under the common law or a statutory
a dangerous wound. But it seems very provision.
unreasonable for other non-violent crimes Receiving stolen property knowing it to have been stolen.
on the same list – such as fraud, forgery Fraud.
or knowingly receiving stolen property. Forgery or uttering a forged document knowing it to
Most problematic of all, the list includes have been forged.
the crime of sodomy, which once included Offences relating to the coinage.
certain forms of rape but now covers only Any offence, except the offence of escaping from lawful
sexual acts between consenting adults. So custody in circumstances other than the circumstances
treating consensual sodomy in this way is referred to immediately here-under, the punishment
wherefor may be a period of imprisonment exceeding
a serious form of discrimination against
six months without the option of a fine.
gay men. Another problem with the list is
Escaping from lawful custody, where the person
that it is too broad. It includes any crime
concerned is in such custody in respect of any offence
referred to in this Schedule or is in such custody in
respect of the offence of escaping from lawful custody.
18
Sakeus Iikela, “Opposition blasts 'Fishrot bill'”, Any conspiracy, incitement or attempt to commit any
The Namibian, 25 February 2021
offence referred to in this Schedule.
19
See “Use of force by law enforcement officials in
Namibia”, Legal Assistance Centre, 2019

STATUTE SUMMARIES
Legal Assistance Centre Criminal Procedure Act 51 of 1977  11
that can be punished by imprisonment for more than six months without the option of a fine. In South
Africa, the Constitutional Court found that a similar “Schedule 1” list of crimes was unconstitutional
because it was a “rag-bag” that mixed serious violent crimes together with relatively petty crimes that
do not involve any kind of physical threat. It was an illogical list of crimes for its purpose. The similar
law in South Africa has been amended since that case was decided. In Namibia, it appears that the
police do not actually apply the “Schedule 1” list as it stands in practice, but this aspect of the Criminal
Procedure Act should be amended.20

Victim compensation: It has been suggested that arrangements for victim

compensation should be expanded and improved. The desire for compensation
sometimes motivates victims to withdraw criminal charges and settle the case
privately by taking money from the offender, or to resolve cases in customary
tribunals instead of criminal courts. These alternative approaches could leave
the general public at risk from the offender. Victim compensation could be
more well-integrated into the criminal justice system.21

Other relevant laws

Once a person is convicted of a crime, the Correctional Service Act 9 of 2012 contains rules and
procedures about their confinement in prisons (now officially called “correctional facilities”).

There are several general statutes that focus on procedures relating to crimes that cross national
borders in some way:
z The Extradition Act 11 of 1996 sets out rules and procedures for transferring persons accused of
certain crimes from one country to another, as well as procedures for dealing with persons convicted
of certain crimes who are still unlawfully at large in other countries.
z The International Co-operation in Criminal Matters Act 9 of 2000 deals with cooperation between
Namibia and certain other countries on issues such as providing evidence, carrying out sentences
and confiscating the proceeds of crime.
z The Transfer of Convicted Offenders Act 9 of 2005 covers the transfer of sentenced offenders
between Namibia and other countries.

20
See “Use of force by law enforcement officials in Namibia”, Legal Assistance Centre, 2019
21
The Criminal Procedure Act 24 of 2004, which was repealed without ever coming into force, broadened the possibilities for
victim compensation and provided more detailed procedures for this.

STATUTE SUMMARIES
12  Criminal Procedure Act 51 of 1977 Legal Assistance Centre