Legal Procedures and Conditions of Hostile Intent in The Republic of Namibia

Introduction

High treason is well known as a crime of common law its origins come from the Roman law which in Roman-Dutch Law was well-known as ‘hoogverraad’. High treason have been identified as a crime committed by those individuals with a hostile intention, to cause harm or threaten the freedom of the country or security of the Republic of Namibia. As a matter of fact High treason is something prepared or attempted with a hostile intention to cause harm to the state or the government of the country. This assignment will further focus on the procedures to be followed when the state is determining whether the accused had hostile intent and the conditions of hostile intent.

High Treason is the unlawful purposefulness commission of any act with the 'additional intent' to overthrow or coerce the state. Well-defined as intentionally betraying one’s allegiance by means of requiring war against the government or giving help or consolation to his enemies. It’s the highest serious crime one can commit against the government, in addition, it’s carrying a punishment of imprisonment. High treason is criminal unfaithfulness to one's government. Taking part in a fighting against one's country, make an attempt to overthrow its government, spying on its military, its ambassadors, or its secret services for a hostile and foreign power, or attempting to murder its head of state are maybe the best known illustrations of high treason. High treason requires that the charged traitor have commitments of loyalty within the state he or she betrayed, but this will more often than not be fulfilled by being display within the state at the time of the offense, or being a citizen of the state in case overseas.

Fault Blame is a lawful term, alludes to lawful guilt and responsibility in all aspects of law. It refers to both the actus reus and the psychological condition of the suspect. The fundamental guideline is that a wrongdoer ought to have the capacity to think about the damage that his activities may cause, and hence should expect to stay away from such activities. Different forms of responsibility employ different notions of fault, in some there is no need to prove fault, but the absence of it. In criminal law, the mens rea is utilized to choose if the respondent has criminal aim when he carries out the demonstration and, provided that this is true, he is in this way obligated for the wrongdoing. However, this is not necessary for strict liability offences, where no specific state of mind is required to satisfy the burden of proof.

Intention in general

Intention is well known in criminal law as the evil purposeful, this include the direction of the will toward performing the act and mindfulness of the circumstances stated within the definitional elements as well as the unlawfulness. There are two elements of intention, a cognitive and conative element. Cognitive test is a test in criminal law. It tests the suspect’s ability to know certain things, particularly the nature of his/her conducts and the capacity to choose whether his/her conduct was right. Intention in criminal law is a bit subjective, when someone’s mind is incapable of direct evidence by witnesses. This can only be proved by inference after the acts as well as expressions from the accused and from the surrounding circumstances. The very important general principles of criminal law is that a person usually cannot be convicted of a crime without having wished or intended to contravene the law. With limited exemptions, the person does not need to know that the act itself is a crime, acting like you don’t know the law is not a pardon for criminal conduct. In this way, if an individual accepts that what she/he did is lawful and on purpose achieves that act, the lawful condition of criminal intention is met’’.

The mens rea come from the Latin for blameworthy mind and talk about how the mind of the accused was when the actus reus is committed. Purposeful could be a subjective concept, what the actual defendant thought at the time of the offense as opposed to objective which is what a reasonable individual would have thought within the same position. Intention is the highest form of mens rea and an instance of this is in the case of theft. The mens rea of theft is intention to deprive someone belongings permanently. Without the intent to take the property the defendant is not guilty of the crime. Intention can be oblique or direct. Direct intent is anywhere the defendant actually desires the consequences of their actions. Oblique intention gives the concept of intent a wider meaning; the consequence wasn't the defendant's aim but was 'virtually certain' to occur as an end result of their actions.

The difference between hostile intention and intention

Hostile intent have defined in many writing as a way of the authoritative element of treason. Motive is not sufficient to be liable for the commission of high treason. Hostile intent may be as in in opinion based upon a person feeling, as well as not an objective element which can prove the offense of treason. In spite of the fact that an aim to overthrow the government of the Republic undoubtedly will not constitute hostile intent, hostile intent isn't limited toward this state of mind. Somebody who anticipates to coerce the governing of Namibia through force, but has not at all intent to overthrow it, has hostile intent.

Intention is something subjective, someone’s state of mind which is unable of direct proof through witnesses. It can be proved through interpretation when he/she performances and expressions after the accused moreover, the surrounding circumstances. The requirement within the definition of high treason that the actions complained of must have been done with hostile intention against the State does not mean that an accused must have been animated by feelings of hatred or ill-will towards the State but only that he was intentionally opposing towards it. Treason can be committed and the hostile intent be entertained with opinion to attain a few additional purpose. The crucial objective can be the accused achievement of a few solid or else financial benefit aimed at a portion or indeed for the entire public. It possibly be the accomplishment of some of the member of opposition party or political or ideological theory, or it could possibly be the satisfaction of individual ambition or else the wreaking of individual hatred. None of these extreme motives is important to the enquiry whether treason has been committed or not. All that the factors remain that encourage a citizen to entertain an intention to assist the opponent, or to debilitate the power contrary to the enemy, in case he acts in order to carry out that intention he commits an act of treason.

Conditions that the state may require to prove hostile intention

The wrongdoing of treason described as any conduct criminally committed by an individual owing allegiance to a state with the intention of:

• overthrowing the government of the Republic;
• coercing the government by violence into any action or inaction;
• violating, threatening or endangering the existence, independence or security of the Republic;
• changing the constitutional structure of the Republic.

For each speech as well as every record motivation ought to be scrutinized on the situation by yourself and at the side entirely other permissible material to decide if there’s prove of hostile intent in contrast to the state. The indictment ought to show that the defendant knows that what he/she is going to do is illegal to commit the communist doctrine of violent revolution or that they proliferated this guideline by means of such. The prosecution must prove with the reference to innumerable records as well as dialogues that the blamed have a strategy of violence. Court must prove by all means that the accused have obtained or else accepted a plan to overthrow the state through violence within the intelligence that the masses have to be organized toward direct acts of violence directed to the state.

Appropriate to prove treasonable treason the indictment have to prove the violent plan of the crime committed beyond reasonable doubt as well as the adherence of each accused thereto. An individual those actions are against the Namibian government, with belief that new government or else not the same form of government could be on the interests of the Republic of Namibia is not exempted by his motives. For instance their overhead, propaganda as well as demonstration act that have their purpose to coercing government in a confident direction might in particular circumstances result in high treason. Subsequently, it must be proved that, the aim of the accused was aiming to organize crowds of people to campaigns, continue at institutions and strikes against the state which through a process of this one will mark its burdens as set off within Independence Constitution.

The possible defences that may be raised.

Mental Illness

The defence of insanity will be raised, in order to conclude that the accused was criminal responsibility at the time he committed the offence, as it is mentioned in sections 77 to 79 of Namibian criminal procedure act 51 of 1977. Section 78 stated that anybody whom constrains an action which creates an crime plus the individual on the time of such commission have a problem with insanity or mental defect which marks him unable of appreciating the wrongfulness of his performance; or of performing in accordance using an appreciation of the wrongfulness of his action, will not be criminally accountable for such action. The section make it flawless that, word act which creates a wrongdoing doesn’t bring up to an offence for which suspect is responsible, but simply to an act which agree to the definitional elements of the applicable crime.

Immature Age

The first part of criminal responsibility, is that accused must have been suffering a mental sickness, will be considered first. It’s made clear in the subsection of section 78 of Namibian criminal procedure Act 51 of 1977 besides from section 79, the defendants must have suffered from an insanity need be strong-minded with the assistance of psychiatric indication. Not essential to demonstrate that a mental infection or weakness originated in the defendant’s mind the defence might be fruitful even the cause was organic, as in the case of arteriosclerosis. It could be situated of either an everlasting or impermanent nature. For accused to raise this defence, it need of course to have be immature at the time of the act.

The privilege of every individual to comment tons of open significance and to be tuned in by whoever needs to listen the right to speak freely as said in Chapter 3 of Namibia structure, should not be unduly decreased by dread of indicted for treachery should the communicated sees be antagonistic to the ear of power to be sure in case such feedback does not accomplish the principles of incredible taste, reasonableness and honesty which one would accept since a wise writer or open speaker. The right to speak freely is far also profitable to enable it to be stifled by such phantom. It is powerful feedback that oils up the wheels of vote based system and electrifies energetically the lazy apparatus of government.

As it is mentioned in Namibia criminal procedure act 51 of 1977, section 277(1) (b) anyone who committed high treason will be sentenced to death. This section is confusing because it is opposing with the Namibian constitution chapter 3, Article 6 Protection of Life. The right to life shall be respected and protected. No law may prescribe death as a competent sentence. No Court or Tribunal shall have the power to impose a sentence of death upon any person. No executions shall take place in Namibia. This section is unconstitutional in addition the punishment cannot be death sentence.

Conclusion

The bad behavior of high treason might be committed by the individual owing allegiance to the Republic of Namibia with the intend to overthrowing the administration of the Republic, coercing the legislature by methods of violence into any action or inaction, abusing, debilitating or imperiling the presence, opportunity or security of the Republic, changing the established structure of the Republic. In any case, in circumstances where the bad behavior comprises of the prohibition to uncover data of treasonable exercises, the unfriendly aim must, regardless, be demonstrate by a couple of act. The arrangement of a trick may in itself be such act. This demonstration, proving undermining point, require not be a brutal demonstration. One can submit high injustice without submitting brutality. It must be underlined, regardless, that the antagonistic goal must be demonstrated past sensible uncertainty.