Transgender victim of police unlawful arrest and assault awarded damages
What makes this story unusual is that the victim of the police assault was a transgender woman. Otherwise, however, the tale of police brutality, carried out with an apparent firm belief in the aggressor’s impunity, is a story that is becoming increasingly common in the Namibian courts.
The woman whose complaint lies at the centre of this litigation is Josper Cloete, and she brought her claim against the minister of safety and security and the Namibian government.
She said that when she was leaving a fast-food outlet in Windhoek in July 2017, she was approached by a group of men in civilian clothes who claimed to be police officers. They grabbed her and forced her into a police vehicle and drove off with her.
She claimed that during the journey, one of the men assaulted her and threw derogatory remarks at her, calling her a ‘moffie’, among other things.
Cloete claimed further that the brutality continued even after the police vehicle reached the police station and that the officer concerned had kicked her in the stomach.
Cloete had been a well-known figure in the local entertainment world, and she had spoken out on the discrimination against trans-people and the LGBTQ community generally. However, according to her evidence, the incident had changed her personality.
She testified that after the traumatic event she started seeing a clinical psychologist and continued with weekly sessions over four to six months. She said that she was afraid of being attacked again, had become withdrawn and had halted all media events. In her mind, she said, the attack on her was just because she is a transgender person.
The anxiety she has experienced since childhood had greatly increased. The police were people of authority, and if they could behave in this way, even though they were supposed to protect people, how could she ever trust anyone again?
The only witness for the defendants was Reinhold Isaac, who was a member of the local neighbourhood watch and volunteered with the Namibian police and their community affairs subdivision.
Isaac said he had gone with two members of the police on an evening patrol and they had stopped at the fast-food outlet to get something to eat. He claimed that he heard someone who worked at the eatery telling someone among the customers to speak more quietly because this was a public place. The police officer with Isaac, a Constable Kavari, had then gone across to the person concerned to say that he is a police officer and that she should not talk so loudly.
According to Isaac, Cloete then claimed that Kavari, who was not in uniform, wanted to steal her phone. He said Kavari took Cloete’s hand and led her to the police van after she produced a pepper spray. He arrested her, pushed her into the van and put her in the back seat.
Cloete and Isaac gave conflicting versions of what happened in the van, but when they arrived at the station and everyone climbed out of the vehicle, the conflict between Cloete and Kavari obviously continued and was even captured on a video in the street outside the station.
Inconsistencies emerged between an earlier statement and Isaac’s evidence in court and his witness statement. But, asked some probing questions by the judge, Isaac conceded that Kavari’s aggressive behaviour towards Cloete ‘did not amount to proper conduct by a police officer.’ On the other hand, according to him, Cloete brought the trouble on herself by behaving aggressively towards the police officer or by not moving away from him.
The judge said there was no dispute that the arrest was unlawful. There was however a dispute about what happened in the vehicle and after it arrived at the police station. But Cloete’s version was not shaken or ‘meaningfully disturbed’ in cross examination and in the court’s view she ‘remained a credible witness’.
She conceded that she was angry after being arrested without cause, and then, after she had been assaulted, Kavari had simply wanted to drive off instead of charging her as he had threatened. She admitted swinging her handbag at him after he attacked her, but said she had done so, not as an aggressor, but in defence to his continued attack on her.
Some of Isaac’s evidence, on the other hand, ‘simply did not make sense’, according to the court.
The video made clear that from the time Kavari stepped out of the vehicle behind Cloete, ‘he was the aggressor at all times’, said the judge.
Given these factors, the court accepted the version of Cloete as reasonably possibly true in the circumstances.
The court spoke of the ‘unjustified, unacceptable and shameful conduct of the police’ and said that the insult to Cloete ‘who was humiliated and discriminated against because she is a transwoman’ was considered as aggravating.
The court also stressed that police officers were obliged by law to protect all members of Namibian society, regardless of their gender.
For the pain and suffering Cloete experienced, the court awarded her N$50 000.
The judge in the case, Esi Schimming-Chase, deserves a mention as well, for the appropriate and sensitive way in which she handled the matter of Cloete being transgender.
In the footnotes to her judgment, Judge Schimming-Chase notes the dictionary definition of ‘transgender’ as being a person whose gender identity differs from the sex the person has, or was identified as having at birth. The judge then goes on to say: 'Although the plaintiff was referred to in the masculine in the pleadings, it was agreed at the onset of the trial proceedings between the practitioners appearing for the parties that the plaintiff (who identifies as a transwoman) would be referred to by her chosen pronouns, being she/her. The court does so as well.'