FORMER member of parliament Geoffrey Mwilima, who is serving a prison term on high treason and other charges, is making another attempt in the Windhoek High Court to get the prison authorities to recommend his release on medical grounds.
In a case that is due to be heard in the High Court today, Mwilima is asking the court to declare a regulation issued under the Correctional Service Act of 2012 as unlawful and null and void, and to order the prison authorities to decide if his continued imprisonment is detrimental to his health.
Mwilima is also asking the court to direct the medical officer at Windhoek Correctional Facility, where he is imprisoned, to recommend that his release from prison should be considered if the medical officer finds that Mwilima has a dangerous disease, and that his continued incarceration would be detrimental to his health.
The 66-year-old Mwilima has been in jail for more than 22 years, following his arrest in August 1999 in connection with a secessionist organisation’s attempt to overthrow the government in the former Caprivi region and secede the region from Namibia.
After a marathon trial in the High Court, Mwilima and 29 co-accused were convicted of high treason, nine counts of murder, and 90 counts of attempted murder in September 2015.
Mwilima was sentenced to an effective prison term of 18 years in December 2015.
In December last year, the Supreme Court dismissed an appeal against the convictions of 27 of the men found guilty in the trial, but decreased their sentences. Mwilima’s sentence was altered to an effective prison term of 15 years.
A first attempt by Mwilima to get a court order that would pave the way for his release on medical grounds failed in the High Court in May last year.
Mwilima filed a new application in June last year. In that case, he is arguing that Namibian Correctional Service Regulation 274, which was published in 2013, is unlawful because it is in conflict with an article of the Correctional Service Act.
That article of the act states that the minister responsible for the prison service may on the recommendation of a medical officer of a correctional facility authorise the release of a prisoner who is suffering from a dangerous disease and whose continued incarceration would be detrimental to his health.
Mwilima says regulation 274 introduces an additional requirement to the ones in the act by stating that a medical officer may recommend the release of an inmate on medical grounds if the prisoner is suffering from a dangerous disease that would lead to his death if he is not immediately released.
The act does not have a requirement that a prisoner should be in danger of imminent death before his release on medical grounds may be recommended, Mwilima says in an affidavit filed at the court. He also says that the minister who issued the correctional service regulations introduced an additional requirement not authorised by the act.
In addition, says Mwilima, the requirement that an inmate should face “imminent death” before his release on medical grounds may be recommended is unconstitutional.
He states in his affidavit: “To be released from incarceration on account of ill health only when one is about to die or literally on a deathbed is cruel, inhuman or degrading treatment or punishment, which leaves one with no hope of ever living a normal life outside of prison. That is no life at all.”
Mwilima has informed the court that he has serious health problems, as he has uncontrolled diabetes, high blood pressure, epilepsy and end-stage kidney disease.
The minister of home affairs, immigration, safety and security, Albert Kawana, who is cited as the first respondent in the case, is opposing Mwilima’s application.
Kawana says in an affidavit also filed at the court that the medical officer of Windhoek Correctional Facility has already decided that Mwilima’s state of health does not warrant a recommendation for his release.
That decision remains in place and is binding, according to Kawana.
He also says Mwilima does not have a right to be released on medical grounds, but only has a right for his state of health to be considered by a medical officer, who would have to decide whether to recommend his release.
Even if there was a recommendation for his release, that would not automatically lead to an order for his release, as such an order would be an executive decision for which matters like the seriousness of the offences of which he was convicted would also be considered, Kawana states.
The case is due to be heard by judge Esi Schimming-Chase today.