The right of vulnerable witnesses versus the accused's right to fair trail (confrontation)

Abstract

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The dissertation examines the question of whether the rights of vulnerable witness, must always take precedence over the confrontational rights of the accused in Namibia. As a result of the severe hardships experienced by vulnerable witnesses who are victims of sexual indecent assault. The ordinary adversarial procedure, with its strong emphasis on cross examination was alleged to be insensitive and unfair to the vulnerable witness. Therefore, special arrangement that eliminated face to face confrontation between the vulnerable witness and accused were introduced. However, the right to confrontation has been recognized since time immemorial as being a fundamental requirement of a fair trail. The right of an accused to be confronted with the witnesses against him is deemed to be one of his/her most valuable safeguards. Such a right protects the accused against the dangers of conviction on the basis of an ex parte testimony of affidavits given in his absence or when he is not granted the opportunity to cross-examine. It has been indicated that vulnerable witness experience a variety of mental or physical distress, which maybe greatly aggravated by forcing a victim to testify in open court in the pressure of the perpetrator. It is also claimed confrontation is essential because cross-examination is an essential component of fair trail. An examination of vulnerable witness protection measures as well as the accused confrontational rights in South Africa and the United States of America reveals that the two competing interests are equally important both from a constitutional perspective and legal philosophical reviews perspective. The dissertation would therefore recommend the development of alternative legal measures to achieve a balance between these competing interests in Namibia