Murder’s murder, even if the victim is a newborn baby killed by a mother

WHEN a woman kills her baby for no serious reason, what’s an appropriate punishment? It’s a hard question for judges in Namibia, where infanticide has become such a problem that a judge recently imposed 20 years in jail as a deterrent.

The case involved Sara Kamutushi, 28, from Oshakati district, charged with “concealment of birth” and murder. After giving birth in secrecy under a tree in the veld, she wrapped the boy, still alive, in a sheet, placed him under the tree, covered him with a heap of dry leaves and returned to her parents’ home nearby.

Not long afterwards older children heard crying and came to her parents’ house to report it. Kamutushi went with them to the tree. It was her child, but she did not want him “because he was ugly”.

When they threatened to call the police, she said she would keep the baby. Soon afterwards, the boys met a teacher to whom they told their story. They all went back to the house where they found her – without the baby. Where was he, they asked? She took them to the tree where she unearthed the child from a shallow grave.

She said the baby died in her arms. The court head medical evidence that the child had suffocated. Experts who examined Kamutushi concluded she was not suffering from any “mental illness”. She knew it was wrong for mothers to “dump their babies”, and that government departments would take “unwanted babies”.

She gave contradictory reasons for her actions which the court did not accept, including “fear of her father”.

Presiding Judge Christie Liebenberg said that where the life of a newborn had been “discarded” as worthless there was a “compelling duty to speak”. Given the prevalence of infanticide in Namibia, the courts could play a crucial role through sentencing.

In a previous, similar trial, he had asked why courts tended to deliver “substantially more lenient sentences” in such cases than in “ordinary” murders. It was important to investigate the emotional state of the mother, he said. She might be very distressed and unbalanced. Or the crime might be selfishly motivated and “committed entirely in the interest of the mother”.

In Kamutushi’s case, he found she had killed the baby for such reasons and that the premeditated act was little different from other murder cases. He said that where appropriate the courts should emphasise deterrence when sentencing so that mothers considering whether to abandon or kill their babies would be encouraged to consider alternatives.

Judge Liebenberg also urged that the law setting the maximum fine for “concealment of birth” be urgently updated: set at R200 or six months in 1962, the punishment had never been increased and was now virtually meaningless instead of reflecting the seriousness of the offence.

In addition to the R200 or six months, he imposed 20 years for murder, with five suspended. This is by far the toughest punishment yet imposed as Namibian judges worry over how to deal with the trend.

In 2006, Judge President Petrus Damaseb, dealing with a 21-year-old convicted of killing her baby, called a magistrate from her home district for evidence about the local handling of infanticide.

Between 2003 and 2006 eight such cases were finalised in that division alone with another eight still pending, and without counting cases not yet sent to the regional court.

What struck Judge Damaseb about the magistrate’s evidence was the “triviality and selfishness” of explanations for these killings and the cruelty used to kill the babies. “However young the victims, they are human beings.”

Giving guidance to magistrates dealing with similar cases, he said a jail term would sometimes be appropriate. Only with strong medical evidence that the woman was mentally unstable or where there were “other circumstances of such a compelling nature as to reduce the moral blameworthiness of the accused, should non-custodial sentences be considered in cases involving the murder of a newborn child”.

The mother in this case was just 21 and showed remorse “for her evil deeds”. Her home circumstances were extremely difficult – “heart-rending” in the words of Judge Damaseb – all factors he considered when sending her to jail for three years, 30 months of which were suspended, for the murder, and a further six months or R200 for concealment of birth.