News and Information

Treason trial boycott starts
March 13, 2007


THIRTY of the 119 men being prosecuted in the main Caprivi high treason trial have started boycotting the trial in the wake of a ruling that closed the door on their plan to challenge the High Court's territorial jurisdiction over the Caprivi Region.

In a ruling delivered in the High Court on the grounds of Windhoek Central Prison on Thursday last week, Judge Elton Hoff dismissed an application brought by Aggrey Makendano, a leading figure in the ranks of 30 of the accused who are not legally represented in the trial.

Although Judge Hoff's ruling applies only to Makendano's application to challenge the court's power to try him, its outcome could apply equally to any similar jurisdiction challenges that the other unrepresented accused may have been planning to pursue.

Judge Hoff's ruling for the first time directly addressed an issue that has been lingering under the surface at the trial since the accused men pleaded to the 278 counts against them in the High Court at Grootfontein almost three years ago.

When they pleaded in mid-March 2004, all the charged men were still legally represented.

Thirteen of them, who had previously challenged the High Court's jurisdiction to try them because they claimed they had been unlawfully abducted to Namibia to be arrested and charged, refused to plead to the charges and the court then entered pleas of not guilty on their behalf.

On behalf of some of the other accused, including Makendano, the court was at that stage informed that they were pleading not guilty and also reserved their rights to challenge the jurisdiction of the court when such an issue arose.

To raise such a jurisdiction challenge at this stage of the already protracted trial, after more than 90 prosecution witnesses had already testified, cannot be allowed, Judge Hoff ruled on Thursday, which was the 200th day of proceedings in the trial.

The ruling followed on an address that Makendano gave to the court earlier last week.

Makendano told Judge Hoff that he was ready to challenge the State to prove that the boundaries of Namibia included the Caprivi Region and that a Namibian court as a result would have power over that region.

He summarised his position: "It is my view that the Namibian Government or the Namibian State has no authority, legally or factually, over the Caprivi Strip and its nationals.

Consequently I believe that this court has no jurisdiction to try me on charges of treason or sedition."

Makendano further claimed: "Since 1990 the Namibian Government had invaded the Caprivi Strip and has continued to occupy and govern Caprivi Strip illegally, by force and at gunpoint, and I strongly believe that Namibian laws are not applicable in the Caprivi Strip and I believe that the Namibian Constitution is not applicable in Caprivi."

The sort of jurisdiction challenge that Makendano and other unrepresented accused persons want to pursue is based primarily on political considerations, and it is not surprising that the defence lawyers who initially represented them refused to proceed with such an application, Judge Hoff remarked in his ruling.

When an accused at any criminal trial pleads not guilty or raises anything but a guilty plea - such as for instance a jurisdiction challenge - such a plea would serve to inform the State what is in dispute at the trial, Judge Hoff pointed out.

"Where an accused reserves his or her right to challenge the jurisdiction of any court such a reservation hamshackles one of the very aims of a plea, that is the determination of the ambit of the dispute," the Judge stated.

He added: "(I)t would also be a waste of costs to allow an accused person to dispute the jurisdiction of a court at a time the accused finds it convenient to do so especially in a complex and protracted trial as the one we are presently engaged in.

"If an accused were to be allowed to keep a plea that a court has no jurisdiction in abeyance it would result in the court, the prosecutor, co-accused persons and defence counsel being kept in suspense for an indeterminate period of time.

Such a situation would simply be untenable."

If he wanted to dispute the court's jurisdiction, Makendano should have done so at the time that he and his co-accused pleaded to the charges, Judge Hoff ruled.

"He failed to do so, and (...) he cannot now be allowed to resurrect a non-existent plea."

Makendano and the other unrepresented accused men walked quietly out of court after the ruling had been given.

Yesterday they appeared before Judge Hoff without their represented co-accused to try to sort out whether they would continue attending the trial or not.

Addressing Judge Hoff as spokesperson for the 30, Makendano repeated that the group believes that the laws and Constitution of Namibia do not apply in the Caprivi Region, and that "the Caprivi Strip" is not part of Namibia.

He and the others in their group are not prepared to sit in on the trial to hear what State witnesses had to say to the court, because they do not believe that they are part of the trial, Makendano announced.

He said he and the rest of the group would be willing to return to court only after the State had closed its case against them.

If they do stay away from the proceedings, it would be without the court's consent, Judge Hoff told the men.

Their absence from court would however not be an obstacle to the trial continuing, and if they want to choose that option, the court would not prescribe to them what to do, he said.

The 30 stayed away from the rest of the day's court proceedings.

Except for Makendano, other leading figures among the accused who are part of the group of 30 include John Samboma, alleged leader of the secessionist Caprivi Liberation Army, Thaddeus Ndala and Martin Tubaundule.

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