Windhoek High Court: Jaco Kennedy Bail Dismissal in Namibia Upheld

• The Windhoek High Court dismissed former magistrate Jaco Kennedy's latest bail application.
• Kennedy faces multiple rape charges, with one alleged incident occurring while he was already on bail for a previous rape charge.
• He has been held in custody since January 2016 following his re-arrest for the second alleged offense.
• Co-accused Ray Cloete remains on bail since February 2015 for the first incident.
• Kennedy was recently discharged on only one of ten counts he sought to have dismissed after the State closed its case.

The Windhoek High Court's decision underscores a stringent approach to bail for serious criminal charges, especially when an accused is alleged to have committed further offenses while already on bail.

The Windhoek High Court has once again denied bail to former magistrate Jaco Kennedy, who faces multiple serious charges, including rape. Judge Naomi Shivute delivered the ruling last Friday, dismissing Kennedy's application which was based on the presentation of new facts. However, the specific reasons for the court's decision were not immediately provided at the time of the ruling.

Kennedy is currently facing two distinct sets of rape charges. The first incident, allegedly occurring between Katutura and Windhoek Central Hospital in January 2015, led to his initial arrest. While out on bail for this first charge, he was subsequently re-arrested in connection with a second alleged rape in the Otjomuise area of Khomasdal in December 2015. This pattern of alleged offending while on bail is a critical aspect of his ongoing legal battle.

The former magistrate has remained in custody since January 2016, following his re-arrest for the second alleged incident. His co-accused in the first case, his cousin Ray Cloete, has been on bail since February 2015. The recent dismissal of Kennedy's bail application signifies a continued stringent stance by the court regarding his eligibility for release.

The initial charges against Jaco Kennedy stem from an incident in January 2015, where he and his cousin, Ray Cloete, are accused of raping a 43-year-old woman. It is alleged that they offered the woman a lift between Windhoek Central and Katutura Hospital, after which they took turns raping her. A security guard reportedly witnessed the events and alerted the police, who allegedly found Kennedy half-clothed and on top of the complainant upon arrival. Kennedy denies the rape, claiming he and Cloete had a sexual conversation with the woman and that he paid her N$200 for sex with both of them. Following this, a magistrate's court granted Kennedy and Cloete bail of N$3,000 each.

However, Kennedy was re-arrested in connection with an alleged kidnapping and rape of a 20-year-old woman in the early hours of December 31, 2015. He denies these allegations, stating he did not give anyone a lift that morning and does not know the complainant. For the January 2015 incident, Kennedy faces charges of kidnapping, attempted murder, three counts of rape, attempting to defeat or obstruct the course of justice, and resisting, hindering, or obstructing a police officer. Cloete is charged with two counts of rape and one count of kidnapping for the same incident. For the December 2015 incident, Kennedy alone faces charges of kidnapping and two counts of rape.

Both Jaco Kennedy and Ray Cloete formally denied guilt on all charges in April 2021, setting the stage for their ongoing trial. Earlier this year, both accused sought to be discharged on most of the counts they faced after the State had concluded its case. This application, however, was largely unsuccessful.

Cloete's application to be discharged on all three counts against him was dismissed. Kennedy, who sought to be discharged on eight of the ten counts he was facing, was only discharged on a single count: attempting to defeat or obstruct the course of justice. He still faces an alternative count related to resisting, willfully hindering, or obstructing a police officer in the execution of their duties. Despite these legal maneuvers, Kennedy remains in custody since his second arrest in January 2016, while Cloete has maintained his bail status since February 2015.

The Windhoek High Court's decision underscores a stringent approach to bail for serious criminal charges, especially when an accused is alleged to have committed further offenses while already on bail. The dismissal of Jaco Kennedy's bail application, even without immediate public disclosure of reasons, highlights the judiciary's discretion in such matters and the high bar for release under these circumstances. The court's consideration of 'new facts' in a bail application does not automatically guarantee a different outcome, particularly when the accused faces grave allegations.

This ruling serves as a significant precedent within Namibia's criminal law, emphasizing that the court will meticulously scrutinize bail eligibility, particularly for individuals accused of committing new crimes while previously released on bail. Legal practitioners should note that presenting 'new facts' alone may not be sufficient to sway the court in cases involving serious offenses and a history of alleged re-offending, necessitating a comprehensive and compelling argument to overcome the court's inherent caution.

This case serves as a precedent for the stringent approach of the Windhoek High Court in denying bail for serious criminal charges, particularly when an accused is alleged to have committed further offenses while already on bail. Lawyers should note the court's discretion in such matters, even when 'new facts' are presented, and be prepared for detailed scrutiny of their client's bail eligibility.

Source: Original reporting via New Era.