Gang-rape suspects remain in the dock

FIVE young men who are accused of gang-raping a 16-year-old girl at a village in northern Namibia two years ago failed yesterday with a bid to be acquitted on the 14 charges they are facing at their trial in the High Court in Windhoek.

Defence lawyer Sisa Namandje, who is representing all five accused men in the trial before Acting Judge Annel Silungwe, unsuccessfully argued yesterday that the five should be discharged, without being required to present the case in their defence to the court, now that the prosecution has wrapped up its case in their trial. Deputy Prosecutor General Zenobia Barry opposed Namandje’s move to get his clients acquitted at this stage of the trial.After hearing arguments from the two lawyers for most of the day, Acting Judge Silungwe ruled that there was sufficient evidence before the court to place the five on their defence.The five – Tobias Nahenda (24), Mateus Nuugonya (21), Simon Petrus (23), Fillipus Namashongo (21) and Festus Shipanga (20) – are supposed to return to court today for the start of the case in their defence.They face 13 counts of rape and one charge of kidnapping in connection with an incident in which a 16-year-old girl was allegedly gang-raped at Onayena, a village about 20 kilometres east of Ondangwa, on October 27 2006.In the charges it is alleged that each of the five raped the girl.Four of them – Nahenda, Nuugonya, Namashongo and Shipanga – also raped her a second time, it is alleged.Nuugonya also assisted his four co-accused to rape the girl, it is further charged.The five have all denied all the charges.Only Nuugonya has however admitted that he had sexual intercourse with the girl, but he is claiming that this was with her consent.Namandje argued yesterday that the State did not prove that any act of rape, as defined in the Combating of Rape Act of 2000, had taken place.He argued this was because the girl was never asked to explain what she meant with her testimony that Nuugonya and other persons had “sex” or “sexual intercourse” with her on the evening of October 27 2006, so that the court could consider whether this fell within the Combating of Rape Act’s specific definition of a sexual act.Namandje further argued that the evidence in the case was contradictory and could not be relied on to convict the five, or require them to present the case in their defence to the court.The girl who was allegedly raped could for instance only tell the court that Nuugonya and four other men that she could not identify had sex with her, Namandje argued.Another witness, who claimed he had heard the five accused, who were his room mates at a school hostel, planning the gang rape and discussing it after the event, turned out to be the weakest witness of all in the trial, Namandje also argued.Barry argued that it had been the girl’s version from the start that the sex with Nuugonya, who was her boyfriend at the time, was not consensual.The fact that the girl could only tell the court that Nuugonya and three other people that she could not identify had raped her repeatedly was to be expected in the circumstances of an event that had left her traumatised, Barry said.She recounted that the room mate of the five had told the court that he overheard them planning a gang rape two days before the alleged incident already.At that stage another girl was to be their target.That witness also testified that four of his room mates returned to their room after midnight on the evening of October 27 2006.Nuugonya then woke him up to tell him, while using a crude term for the act, that they had had intercourse with the girl.After the last of the five had returned to the room, they were boasting to each other about what they had done, the court was told.The five remain free on bail while their trial continues.Deputy Prosecutor General Zenobia Barry opposed Namandje’s move to get his clients acquitted at this stage of the trial.After hearing arguments from the two lawyers for most of the day, Acting Judge Silungwe ruled that there was sufficient evidence before the court to place the five on their defence.The five – Tobias Nahenda (24), Mateus Nuugonya (21), Simon Petrus (23), Fillipus Namashongo (21) and Festus Shipanga (20) – are supposed to return to court today for the start of the case in their defence.They face 13 counts of rape and one charge of kidnapping in connection with an incident in which a 16-year-old girl was allegedly gang-raped at Onayena, a village about 20 kilometres east of Ondangwa, on October 27 2006.In the charges it is alleged that each of the five raped the girl.Four of them – Nahenda, Nuugonya, Namashongo and Shipanga – also raped her a second time, it is alleged.Nuugonya also assisted his four co-accused to rape the girl, it is further charged.The five have all denied all the charges.Only Nuugonya has however admitted that he had sexual intercourse with the girl, but he is claiming that this was with her consent.Namandje argued yesterday that the State did not prove that any act of rape, as defined in the Combating of Rape Act of 2000, had taken place.He argued this was because the girl was never asked to explain what she meant with her testimony that Nuugonya and other persons had “sex” or “sexual intercourse” with her on the evening of October 27 2006, so that the court could consider whether this fell within the Combating of Rape Act’s specific definition of a sexual act.Namandje further argued that the evidence in the case was contradictory and could not be relied on to convict the five, or require them to present the case in their defence to the court.The girl who was allegedly raped could for instance only tell the court that Nuugonya and four other men that she could not identify had sex with her, Namandje argued.Another witness, who claimed he had heard the five accused, who were his room mates at a school hostel, planning the gang rape and discussing it after the event, turned out to be the weakest witness of all in the trial, Namandje also argued.Barry argued that it had been the girl’s version from the start that the sex with Nuugonya, who was her boyfriend at the time, was not consensual.The fact that the girl could only tell the court that Nuugonya and three other people that she could not identify had raped her repeatedly was to be expected in the circumstances of an event that had left her traumatised, Barry said.She recounted that the room mate of the five had told the court that he overheard them planning a gang rape two days before the alleged incident already.At that stage another girl was to be their target.That witness also testified that four of his room mates returned to their room after midnight on the evening of October 27 2006.Nuugonya then woke him up to tell him, while using a crude term for the act, that they had had intercourse with the girl.After the last of the five had returned to the room, they were boasting to each other about what they had done, the court was told.The five remain free on bail while their trial continues.