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• Cover
• Title page
• Copyright page
• About the Author
• Contents
• Preface and Acknowledgements
• Criminal law: a path to an enlightened place
• The absence of textbooks on Namibian criminal law
• Why this book?
• My debts
• Your turn
• Chapter 1
• Introduction
• 1. Welcome to Criminal Law!
• 2 Aims or goals of the book
• 3. How I achieve those aims
• 4 Is this book for you?
• 5 What is in it for you?
• Chapter 2
• The Namibian criminal justice system
• 1. Crime in Namibia
• 2. Sources of criminal law and their historical background
• 2.1. Roman-Dutch common law

• 2.2. Case law
• 2.3. Doctrinal writings
• 2.4 International law
• 3. The impact of the Namibian Constitution on criminal law
• 4. Classification of crimes
• 5. The main actors in the criminal justice system
• 5.1. The accused
• 5.2. Police officers
• 5.3. Prosecutors
• 5.4. Lawyers
• 5.5. Judges and magistrates
• 6. The process
• 7. Criminal courts
• Chapter 3
• Criminal law theories
• 1. In search for a theory of criminal law
• 2. What makes conduct criminal
• 3. Understanding why we criminalize
• 3.1. The guiding rationales

• 4. The requirement of unlawfulness helps in determining what conduct to criminalize
• 5. How and when to criminalize and de-criminalize
• Chapter 4
• Theories of punishment
• 1. Introduction
• 2. Are penal theories part of substantive criminal law?
• 3. The crime, the accused, and society
• 3.1. The crime and the criminal
• 3.2. The interest of society
• 4. Classification of theories
• 5. Retribution
• 6. Prevention
• 7. Deterrence
• 8. Rehabilitation
• 9. Combining theories
• 10. Mercy
• Chapter 5
• Criminal liability
• 1. Introduction
• 2. Models of liability
• 3. Is the accused guilty?

• 4. The principle of legality
• 5. Conduct
• 5.1. Conduct must be voluntary
• 5.2. Act
• 5.3. Omission
• 5.4. Possession
• 6. The definitional elements
• 6.1. Intention as part of the definitional elements of culpability?
• 6.2. Classification of crimes according to their definitional elements
• 7. Unlawfulness
• 8. Culpability
• Chapter 6
• Causation
• 1. Introduction
• 2. Overview
• 3. The factual test
• 4. The legal test
• 4.1. Theory of adequate causation
• 4.2. The individualisation theories
• 4.3. Intervening acts
• Chapter 7
• Unlawfulness
• 1. Introduction
• 2. The basic notion

• 3. Private defense, necessity, and consent
• 4. Official capacity
• 5. Use of force and homicide during arrest
• 5.1. Use of force
• 5.2. Homicide during arrest
• 6. Obedience to orders, chastisement, and trivialities
• 6.1. Obedience to orders
• 6.2. Disciplinary chastisement
• 6.3. Trivialities
• 7. Entrapment
• 7.1 Definition
• 7.2. Is entrapment a valid defense in Namibia?
• 7.3. Entrapment as impermissible evidence and mitigating factor
• Chapter 8
• Private defense, necessity and consent
• 1. Introduction
• 2. Private defense
• 2.1. Definition and requirements

• Introduction
• What international law is
• The European roots of modern international law
• Sources of international law
• International law in the Namibian legal system
• How Namibian courts apply international law
• Treaties and their Interpretation
• States and Namibia's long march to statehood
• Recognition of states and governments
• Territory
• State responsibility
• Dispute resolution
• Immunity
• The United Nations, peace and the use of force
• African Union
• Human rights
• Economic relations and SACU
• Law of the sea
• Namibia, child of International Law
• Annex 1. The mandate for South West Africa
• Annex 2. Resolution 435 (1978) on Namibia's independence
• Annex 3. Principles concerning the Constituent Assembly and the Constitution for an Independent Namibia (1982).

This book provides readers with the knowledge necessary to understand how international law carved the history and life of Namibia. It observes that Namibia has benefited from and contributed to international law in a way that shaped that country's political and socio-economic development and to an extent that few other countries experienced. For many a year since Namibia achieved Independence (on March 21, 1990) and established the Faculty of Law at the University of Namibia in 1992, students and lecturers have relied on materials from South Africa, despite the fact that Namibian law has since then grown apart from its South African heritage. This book informs readers about international law, its sources, international treaties, Namibian statehood, dispute resolution, the use of force, human rights, Namibia's economic relations with the outside world (including the Southern African Customs Union), and the law of the sea. Namibian courts have in their own way followed the rules of international law scrupulously, but - as this book shows - international law nonetheless remains the source of Namibian law that lawyers apply the least. Accordingly, this book underlines the significance, the practical utility, and the relevance of international law in the unique Namibian context.

• Introduction
• What international law is
• The European roots of modern international law
• Sources of international law
• International law in the Namibian legal system
• How Namibian courts apply international law
• Treaties and their Interpretation
• States and Namibia's long march to statehood
• Recognition of states and governments
• Territory
• State responsibility
• Dispute resolution
• Immunity
• The United Nations, peace and the use of force
• African Union
• Human rights
• Economic relations and SACU
• Law of the sea
• Namibia, child of International Law
• Annex 1. The mandate for South West Africa
• Annex 2. Resolution 435 (1978) on Namibia's independence
• Annex 3. Principles concerning the Constituent Assembly and the Constitution for an Independent Namibia (1982)

• Cover; Title page; Copyright page; Contents; PREFACE; ACKNOWLEDGEMENTS;
• 1. INTRODUCTION TO THE NAMIBIAN CRIMINAL JUSTICE SYSTEM; 1.1 INTRODUCTION; 1.2 FOUNDATIONS OF THE NAMIBIAN CRIMINAL JUSTICE SYSTEM; 1.3 THE CONSTITUTIONAL STRUCTURE; 1.3.1 The Executive; 1.3.1.1 The President; 1.3.1.2 Cabinet; 1.3.2 The Legislature; 1.3.2.1 National Assembly; 1.3.2.2 National Council; 1.3.2.3 Overview of the law-making process; 1.3.3 The Judiciary; 1.3.3.1 Namibian courts; 1.3.3.1.1 Supreme Court; 1.3.3.1.2 High Court; 1.3.3.1.3 Magistrates' courts; 1.3.3.1.4 Community courts

• 2. THE PROSECUTORIAL AUTHORITY AND CONCOMITANT MATTERS2.1 INTRODUCTION; 2.2 THE PROSECUTOR-GENERAL; 2.2.1 History and General Reflections; 2.2.2 Cases Concerning the Appointment and Role of the Prosecutor-General in Namibia; 2.2.2.1 Ex parte Attorney-General In re: the Constitutional Relationship between the Attorney-General and the Prosecutor-General; 2.2.2.2 Ekandjo-Imalwa v The Law Society of Namibia and Another; The Law Society of Namibia and Another v The Attorney-General of the Republic of Namibia and Others; 2.2.3 The Prosecution as Dominus Litis; 2.2.4 Discretion to Prosecute

• 2.2.5 Delegation of Prosecutorial Authority2.2.6 The Appointment of an Acting Prosecutor-General; 2.3 THE ROLE OF A PUBLIC PROSECUTOR; 2.3.1 General Reflections; 2.3.2 The Prosecution and the Police; 2.3.3 The Prosecution and the Accused; 2.3.4 Guidelines on the Role of Prosecutors; 2.4 WITHDRAWAL AND STOPPING OF PROSECUTION; 2.5 TRIAL WITHIN REASONABLE TIMEAND RELEASE FROM THE TRIAL; 2.5.1 General; 2.5.2 Length of Delay; 2.5.3 Reasons Given by the State to Justify the Delay; 2.5.4 Responsibility of the Accused for Asserting his Rights; 2.5.5 Prejudice to the Accused

• 2.6 TRIAL "WITHIN A REASONABLE TIME"2.6.1 Meaning and Elucidation of Concept; 2.6.2 Interpretation of "Reasonable Time"; 2.7 PERMANENT STAY OF CRIMINAL PROCEEDINGS; 2.7.1 The Constitutional Basis; 2.8 PRIVATE PROSECUTION; 2.8.1 General Reflections; 2.8.2 Private Prosecution on Certificate of Nolle Prosequi (Refusal to Prosecute); 2.9 PRESCRIPTION OF THE RIGHT TO PROSECUTE;
• 3. INTRODUCTION TO THE CRIMINAL PROCESSES; 3.1 INTRODUCTION; 3.2 THE RELATIONSHIP BETWEEN CRIMINAL LAW AND CRIMINAL PROCEDURE; 3.3 RELATIONSHIP BETWEEN CRIMINAL AND CIVIL PROCEDURE

• 3.4 SOURCES OF CRIMINAL PROCEDURE IN NAMIBIA3.4.1 The Namibian Constitution; 3.4.2 Legislation; 3.4.3 International Treaties and Conventions; 3.4.4 Case Law; 3.4.5 Common Law; 3.4.6 Scholarly Authorities; 3.5 ADVERSARIAL AND INQUISITORIAL CRIMINAL PROCEDURE; 3.5.1 Distinguishing Adversarial and Inquisitorial Systems; 3.5.1.1 The adversarial system; 3.5.1.2 The inquisitorial system; 3.5.1.3 General assessment; 3.5.2 Commonality and Convergence between Adversarial and Inquisitorial Systems; 3.5.3 Decoding the Merits and Demerits of the Adversarial and Inquisitorial Systems

The Namibian Constitution entrenches fundamental rights and freedoms, and provides for their vertical and horizontal application in any criminal process. However, since Independence in 1990, Namibia has developed its own criminal jurisprudence. Criminal procedure and law are taking new shape. Namibian courts have pronounced on criminal issues, and legislation has been passed to keep up with the demands, aspirations, spirit, and vision of the Namibian Constitution and its people. CLEVER MAPAURE, NDJODI NDEUNYEMA, PILISANO MASAKE, FESTUS WEYULU and LOIDE SHAPARARA have written an invaluable book that deals with these developments. It explains the rights of individuals, the duties of law enforcement officers, and the procedures of the courts in criminal cases. The Law of Pre-Trial Criminal Procedure in Namibia introduces readers to the fundamental principles and values underlying Namibian criminal law, through a systematic examination of the provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) as amended, which was originally passed by the legislature of South Africa, and still regulates criminal procedure in Namibia, the amendments to it since 1990, and relevant Namibian Case Law. The book captures and discusses the law relating to the pre-trial criminal process in Namibia in detail, from the roles of the prosecutor and the police, search, seizure and forfeiture, interrogation, notices and summons, arrest, court appearance, bail, criminal charges, disclosure, diminished capacity, right to assistance, to pleas and plea-bargaining.

• Cover; Title page; Copyright page; Contents; THE EDITORS; PREFACE; FOREWORD; Part I:Introductory remarks; INTRODUCTION TO VOLUME 1
• THE ASCERTAINMENT OF CUSTOMARY LAW: WHAT IS ASCERTAINMENT OF CUSTOMARY LAW AND WHAT IS IT FOR?; INTRODUCTION TO VOLUME 2
• THE LAWS OF THE BAKGALAGARI, BATSWANA BA NAMIBIA ANDDAMARA COMMUNITIES; EDITORS' GENERAL NOTE; Part II: The Laws of the Bakgalagari and Batswana ba Namibia Communities; THE BAKGALAGARI TRADITIONAL AUTHORITY; Supreme leader and coat of arms; Profile; Molao wa setso wa Bakgalagari; The laws of the Bakgalagari; Certificate of consent to publish.

• THE BATSWANA TRADITIONAL AUTHORITYSupreme leader and coat of arms; Profile; Dikamogelo; Molao-motheo wa Batswana ba Namibia; The laws of the Batswana ba Namibia; Certificate of consent to publish; PART III: THE LAWS OF THE DAMARA COMMUNITIES; The Dâure Daman Traditional Authority; Supreme leader and coat of arms; Profile; The laws of the Dâure Daman; Certificate of consent to publish; The Tsoaxudaman Traditional Authority; Supreme leader and coat of arms; Profile; Tsoaxudaman di Hanugu; The laws of the Tsoaxudaman; Certificate of consent to publish; TheGaiodaman Traditional Authority.

• Supreme leader and coat of armsProfile; The laws of the Gaiodaman; Certificate of consent to publish; TheGobanin Traditional Authority; Supreme leader and coat of arms; Profile; Gobain di Hanugu; The laws of the Gobanin; Certificate of consent to publish; TheKhomanîn Traditional Authority; Supreme leader and coat of arms; Profile; Khomanin di Hanugu; The laws of the Khomanin; Certificate of consent to publish; The OeGan Traditional Authority; Supreme leader and coat of arms; Profile; OeGan di Hanugu; The laws of the OeGan; Certificate of consent to publish; The Aodaman Traditional Authority.

• Supreme leader and coat of armsIntroductory note; Profile; The laws of the Aodaman; Certificate of consent to publish; ANNEXURES; ANNEXURE 1 -STATUTES; ANNEXURE 1A -EXCERPTS FROM THE NAMIBIAN CONSTITUTION; ANNEXURE 1B -TRADITIONAL AUTHORITIES ACT 25 OF 2000; ANNEXURE 1C -COMMUNITY COURTS ACT 10 OF 2003; ANNEXURE 1D -REGULATIONS TO THE COMMUNITY COURTS ACT, 2003; ANNEXURE 2
• LIST OF OFFICIALLY RECOGNISEDCOMMUNITY COURTS.

• GOVERNMENT NOTICES RECOGNISING THE CUSTOMARY COURTS OF THE TRADITIONAL COMMUNITIES WHOSE SELF-STATED CUSTOMARY LAWS ARE CONTAINED IN VOLUME 1 OF CUSTOMARY LAW ASCERTAINED AS COMMUNITY COURTS IN TERMS OF SECTION 2(3) OF THE COMMUNITY COURTS ACT, 2003GOVERNMENT NOTICES RECOGNISING THE CUSTOMARY COURTS OF THE TRADITIONAL COMMUNITIES WHOSE SELF-STATED CUSTOMARY LAWS ARE CONTAINED IN VOLUME 2 OF CUSTOMARY LAWASCERTAINED AS COMMUNITY COURTS IN TERMS OF SECTION 2(3)OF THE COMMUNITY COURTS ACT, 2003; ANNEXURE 3
• ADDRESSES OF THE BAKGALAGARI, BATSWANA BA NAMIBIA, AND DAMARA TRADITIONALAUTHORITIES.

Customary Law Ascertained Volume 2 is the second of a three volume series in which traditional authorities in Namibia present the customary laws of their communities. It contains the laws of the Bakgalagari, the Batswana ba Namibia and the Damara communities. The recognised traditional authorities in Namibia are expected to ascertain the customary law applicable in their respective communities and to note the most important aspects of the laws in written form. The Ministry of Regional and Local Government, Housing and Rural Development, and the Council of Traditional Leaders therefore initiate.

• Cover; Title page; Copyright page; Contents; PREFACE; ACKNOWLEDGEMENTS;
• 1. INTRODUCTION TO THE NAMIBIAN CRIMINAL JUSTICE SYSTEM; 1.1 INTRODUCTION; 1.2 FOUNDATIONS OF THE NAMIBIAN CRIMINAL JUSTICE SYSTEM; 1.3 THE CONSTITUTIONAL STRUCTURE; 1.3.1 The Executive; 1.3.1.1 The President; 1.3.1.2 Cabinet; 1.3.2 The Legislature; 1.3.2.1 National Assembly; 1.3.2.2 National Council; 1.3.2.3 Overview of the law-making process; 1.3.3 The Judiciary; 1.3.3.1 Namibian courts; 1.3.3.1.1 Supreme Court; 1.3.3.1.2 High Court; 1.3.3.1.3 Magistrates' courts; 1.3.3.1.4 Community courts

• 2. THE PROSECUTORIAL AUTHORITY AND CONCOMITANT MATTERS2.1 INTRODUCTION; 2.2 THE PROSECUTOR-GENERAL; 2.2.1 History and General Reflections; 2.2.2 Cases Concerning the Appointment and Role of the Prosecutor-General in Namibia; 2.2.2.1 Ex parte Attorney-General In re: the Constitutional Relationship between the Attorney-General and the Prosecutor-General; 2.2.2.2 Ekandjo-Imalwa v The Law Society of Namibia and Another; The Law Society of Namibia and Another v The Attorney-General of the Republic of Namibia and Others; 2.2.3 The Prosecution as Dominus Litis; 2.2.4 Discretion to Prosecute

• 2.2.5 Delegation of Prosecutorial Authority2.2.6 The Appointment of an Acting Prosecutor-General; 2.3 THE ROLE OF A PUBLIC PROSECUTOR; 2.3.1 General Reflections; 2.3.2 The Prosecution and the Police; 2.3.3 The Prosecution and the Accused; 2.3.4 Guidelines on the Role of Prosecutors; 2.4 WITHDRAWAL AND STOPPING OF PROSECUTION; 2.5 TRIAL WITHIN REASONABLE TIMEAND RELEASE FROM THE TRIAL; 2.5.1 General; 2.5.2 Length of Delay; 2.5.3 Reasons Given by the State to Justify the Delay; 2.5.4 Responsibility of the Accused for Asserting his Rights; 2.5.5 Prejudice to the Accused

• 2.6 TRIAL "WITHIN A REASONABLE TIME"2.6.1 Meaning and Elucidation of Concept; 2.6.2 Interpretation of "Reasonable Time"; 2.7 PERMANENT STAY OF CRIMINAL PROCEEDINGS; 2.7.1 The Constitutional Basis; 2.8 PRIVATE PROSECUTION; 2.8.1 General Reflections; 2.8.2 Private Prosecution on Certificate of Nolle Prosequi (Refusal to Prosecute); 2.9 PRESCRIPTION OF THE RIGHT TO PROSECUTE;
• 3. INTRODUCTION TO THE CRIMINAL PROCESSES; 3.1 INTRODUCTION; 3.2 THE RELATIONSHIP BETWEEN CRIMINAL LAW AND CRIMINAL PROCEDURE; 3.3 RELATIONSHIP BETWEEN CRIMINAL AND CIVIL PROCEDURE

• 3.4 SOURCES OF CRIMINAL PROCEDURE IN NAMIBIA3.4.1 The Namibian Constitution; 3.4.2 Legislation; 3.4.3 International Treaties and Conventions; 3.4.4 Case Law; 3.4.5 Common Law; 3.4.6 Scholarly Authorities; 3.5 ADVERSARIAL AND INQUISITORIAL CRIMINAL PROCEDURE; 3.5.1 Distinguishing Adversarial and Inquisitorial Systems; 3.5.1.1 The adversarial system; 3.5.1.2 The inquisitorial system; 3.5.1.3 General assessment; 3.5.2 Commonality and Convergence between Adversarial and Inquisitorial Systems; 3.5.3 Decoding the Merits and Demerits of the Adversarial and Inquisitorial Systems

The Namibian Constitution entrenches fundamental rights and freedoms, and provides for their vertical and horizontal application in any criminal process. However, since Independence in 1990, Namibia has developed its own criminal jurisprudence. Criminal procedure and law are taking new shape. Namibian courts have pronounced on criminal issues, and legislation has been passed to keep up with the demands, aspirations, spirit, and vision of the Namibian Constitution and its people. CLEVER MAPAURE, NDJODI NDEUNYEMA, PILISANO MASAKE, FESTUS WEYULU and LOIDE SHAPARARA have written an invaluable book that deals with these developments. It explains the rights of individuals, the duties of law enforcement officers, and the procedures of the courts in criminal cases. The Law of Pre-Trial Criminal Procedure in Namibia introduces readers to the fundamental principles and values underlying Namibian criminal law, through a systematic examination of the provisions of the Criminal Procedure Act, 1977 (Act No. 51 of 1977) as amended, which was originally passed by the legislature of South Africa, and still regulates criminal procedure in Namibia, the amendments to it since 1990, and relevant Namibian Case Law. The book captures and discusses the law relating to the pre-trial criminal process in Namibia in detail, from the roles of the prosecutor and the police, search, seizure and forfeiture, interrogation, notices and summons, arrest, court appearance, bail, criminal charges, disclosure, diminished capacity, right to assistance, to pleas and plea-bargaining.