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News and Information
Press Releases: THE CAPRIVI TRIAL:
| August 8, 2009 |
 Press Releases: THE CAPRIVI TRIAL:
Published: Aug 07, 2009 - 07:57 AM
August 5 2009
1. Background
A decade has passed since the abortive attempt by persons, some of whom were suspected members of the former Caprivi Liberation Front (CLF) to secede the Caprivi Region from Namibia. The Constitution of the Republic of Namibia in Chapter 1 Article 1 (1) makes it clear that the Republic has been established as a sovereign, secular, democratic and unitary State founded upon the principles of democracy, the rule of law and justice for all.
In summary form, Article 1 (4) constitutes the Republic of Namibia on the basis that the national territory shall consist of “the whole of the territory recognized by the international community through the organs of the United Nations as Namibia…”. While, Article 1 (6) provides that “This Constitution shall be the Supreme Law of Namibia”.
Based on extensive media coverage of the ongoing trial, the facts in the public domain support the view that the actions of the Caprivi Liberation Front (CLF) and their former leader, Mishake Muyongo, violated the provisions of the Constitution of Namibia, particularly those cited above. This matter is not in dispute.
2. Previous and current situation in the Caprivi Region
Based on data generated through two successive National Housing Income and Expenditure Surveys (NHIES) of 1993/94 and 2003/2004 respectively, as well as on demographic and social characteristics based on the Village-Level Participatory Poverty Assessments – Poverty Profiles of the 13 Regions, published by the National Planning Commission (NPC) in 2007 and the most recent Millennium Development Goals (MDGs) for Namibia of 2006 and 2008, respectively, the Caprivi Region, almost two decades after Independence, continues to experience a high level (poor) of household poverty and a significant level of extremely poor household poverty.
If one looks at the key socio-economic and social indicators that were obtained during the Participatory Poverty Assessment, which was undertaken at village level in the Caprivi Region during October/November 2004, then it shows that the “poor” Household Poverty Levels stood at 40% and the “extremely poor” Household poverty levels stood at 7%.
It could be of interest to note that the Caprivi follows the Kavango Region with the second highest percentage of poor households. The Kavango Region had 51% of poor households and 19.6% of extremely poor households at the time of the village-level participatory poverty assessment.
Although we admit that the Caprivi Region has seen some development since Independence, it still remains below the national averages in respect of the literacy rate for those older than 15 years, access to water and electricity for lighting at household level.
The Village-Level Participatory Poverty Assessment for the Caprivi Region, for example, shows that 19% of Caprivians over the age of 15 years have never been to school. Based on the data of the Namibia Household Income and Expenditure Survey (NHIES) 1993/4, the average annual household expenditure was N$ 5,763 and the average annual income per capita was N$ 1,598.
The Ministry of Health and Social Services 2002 Essential Indicator Report 2001-2002, that the ratio of population to doctor was 12,454 and the ratio of population to nurse was 1, 437. The total recurrent health expenditure per person was N$ 312.
(Source: Regional Poverty Profile Caprivi Based on Village-Level Participatory Poverty Assessments (October/November 2004) Summary Report, published by The National Planning Commission, 2006, p. 9).
It must therefore be clear that the Caprivians had all the reason to have felt that they had been ignored by the Swapo government.
Then there were the claims of promises made by the former President of SWAPO, Sam Nujoma, as to the effect that the Caprivi Region will be accorded a meaningful level of autonomy after independence in 1990, but it could not have been independently verified and one must assume that it cannot have a material bearing on the current case before the courts.
There were also claims by Muyongo (who has gone into exile in the Republic of Denmark) and others, that the Caprivi has been and remains one of the most underdeveloped and marginal regions within the social economy of an independent Namibia, which no-one can dispute, because the argument of underdevelopment and neglect of the Region by the Swapo Government is not in question and although such claims cannot and should not be invoked to justify their actions, it nonetheless forms an important background and provides a wider socio-economic and political context to the case before us, because I am convinced that all the above have fueled the personal motivation and unfortunate misguided passion of some of the individuals and that it had triggered the secessionist attempt of August 1999.
Although one had and still has great sympathy for the desperate plight of the Caprivian people and although I am convinced that it must be taken into consideration, it however remains a fact that, as I said before, it could not have justified their actions.
Having said that, ladies and gentlemen, I would like us to look at the following:
3. Trial within a reasonable time
The notion in law of trial within a reasonable time is of special relevance to the Caprivi case. This notion forms part of an extensive body of applicable International Human Rights Treaties and Conventions as well as the Jurisprudence of National States.
The principal International Human Rights Treaties and Conventions include among others: The International Bill of Human Rights, the African Charter of Human and Peoples Rights and the International Covenant of Civil and Political Rights (hereafter referred to as ICCPR).
[The International Bill of Rights consists of the Universal Declaration of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols.]
In Law, there is admittedly a tension between the demands of sovereignty placed on States and Governments inter alia the responsibility to protect and defend the integrity of the State, and to maintain peace and security. This is also a constitutional demand in Namibia and is not in dispute here.
The Namibian criminal justice system indeed provides for the legal and institutional framework of the powers exercised by law enforcement agencies and judicial officers.
The notion of trial within a reasonable time, however transcends the provisions of State Law, since under Chapter 21 of the Constitution (Article 144) “Unless otherwise provided by this Constitution or Act of Parliament, the general rules of public international law and international agreements binding upon Namibia under this Constitution shall form part of the law of Namibia” (Emphasis added).
Moreover, the provisions of the International Human Rights Treaties and Conventions cited above, do not only provide for the safeguarding of individual rights and freedoms, but also for the mechanisms for redress and appropriate remedies that are available to a victim of human rights violations. State parties to such covenants are bound to these international instruments and therefore any alleged violation of individual rights are governed not only by the State Law of a particular jurisdiction, but also by International Law.
The Human Rights Committee established under the International Covenant of Civil and Political Rights (ICCPR) for example, is mandated to monitor and supervise the implementation of the rights set out in the Covenant (ICCPR). At the continental level such treaty bodies as the African Court on People’s Human and People’s Rights, and the African Commission on Human and People’s Rights1] are mandated to protect and defend the rights of the individual against violations by state agencies.
[The Protocol establishing the African Court on Human and People’s Rights entered into force on 25th January 2004.]
It is important to reiterate, that as a general application of the basic principles of the law of treaties, in international law the parties to these international treaties are States (Namibia) and the United Nations (UN) and therefore such international standards and norms become binding on a State like Namibia, either through the constitutional technique of legislative incorporation or automatic incorporation2]
2] See V. Leary, International Labour Conventions and National Law (1982), read in conjunction with Article 144 of the Constitution of the Republic of Namibia.
Against this background, the specific provisions of International Human Rights Treaties and Conventions that apply are in summary form, the following:
a) The International Covenant of Civil and Political Rights (ICCPR)
The ICCPR states in Article 9(3) that:
Anyone arrested on a criminal charge shall be brought promptly before a judge or a judicial officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.
And it states in Article 2 that the ICCPR also requires State Parties:
to make reparation to individuals whose Covenant rights have been violated. The Covenant generally provides for appropriate compensation. Reparation can include restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and charges in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations. Victims of violations of rights suffering from long periods of detention, such as the case of the accused, are entitled to compensation.
b) African Charter on Human and People’s Rights and the Protocol
The African Charter on Human and People’s Rights under Article 7 (d) states that every individual has the right to be tried within a reasonable time by an impartial court or tribunal.
The African Commission on Human and People’s Rights as well as the African Court on Human and People’s Rights has jurisdiction to enforce the application of Article 7 (d).
Having briefly introduced the provisions and applicability of International Human Rights Conventions and Protocols and their potential relevance to the case; the actual application of the standards that have a bearing on the notion of trial within a reasonable time, need to be briefly outlined. The following few paragraphs address this matter.
1. The application of actual standards
For the notion of a trial within a reasonable time to be legally enforced, there is a need to establish substantive grounds in law of what constitutes ‘reasonable time’. The determination of what constitutes ‘reasonable time’ has been considered in judicial decisions in different jurisdictions such as the Supreme Court of the United States and Canada and the Superior Courts in Namibia and South Africa and here I specifically would like to refer to the case S v Heidenrich, (Nm HC), (1996) 2 BCLR 197: (1998) nr 229
One of the most celebrated cases is that of R vs Askov that served in the Supreme Court of Canada (1990) 2 S.C.R 1199; (1991) 49 CRR 1 (Supreme Court of Canada). (R=Rex/Regina – king/queen/crown)
In this particular Canadian case, four factors were determined by the Supreme Court for determining ‘reasonable time’, namely: (1) the length of the delay, (2) the explanation for the delay (this includes evidence relating to the conduct of the Crown or the State, systematic and institutional delays and the conduct of the accused), (3) the waiver and (4) prejudice to the accused.
The Supreme Court of Canada held that the first factor (the length of the delay) is the triggering mechanism or threshold determination for determining trial within reasonable time and that if that delay appears prima facie excessive, the Court must then determine the three remaining factors to determine whether the accused have been deprived of their fundamental rights and freedoms.
There are also procedural considerations for determining what constitutes ‘reasonable time’.
A further influential application of the actual standards emanates from the Supreme Court of the United States. The case was that of Barker v. Wingo, 407 U.S. 514 (1972). In that case Barker, who was charged with murder, was brought to trial five years after the murder was committed.
The US Supreme Court ruled that a flexible approach should be taken to cases involving delay and that the multiple purposes or aims of the Sixth Amendment must be appreciated. Supreme Court Judge J. Powell, noted that there were three individual interests which the Sixth Amendment was designed to protect, namely
(i) to prevent oppressive pre-trial incarceration;
(ii) to minimize the anxiety and concern of the accused; and
(iii) to limit the possibility that the defense will be impaired or prejudiced.
The determination of whether a delay has been ‘unreasonable’ and if the right to a ‘speedy trial’ has been infringed, depended on:
(i) The length of the delay;
(ii) The reason for the delay;
(iii) The accused assertion of right, and
(iv) Prejudice to the accused.
2. Appropriate remedies
If the long period of detention and the related circumstances amount to a violation of the rights and freedoms of the victim/applicant by the State, and if the answer is in the affirmative, then appropriate remedies exist in both international and state law.
Such remedies include:
Reparation/ compensation under International Law;
Permanent stay of prosecution subject to conditions;
Release;
Public Apology to the accused.
In criminal law jurisprudence there are two schools of thought on the appropriate remedy to be ordered in the case of violation of the right to fair trial; whether an order for a stay of prosecution (and order to abort the trial) or an order for a speedy trial. In the R v Askov case the Court granted a stay of proceedings. In the Namibian case of State v Heidenrich , Judge Hannah stated that:
“Once the main of the sub-article 12(1) (b) of the Constitution of Namibia, which provides that the accused shall be released in the event of the violation of right, has been identified as being not only to minimize the possibility of lengthy pre-trial incarceration and to curtail restrictions placed on an accused who is on bail but also to reduce the inconvenience, social stigma and other pressures which he is likely to suffer and to advance the prospect of fair hearing, then it seems to me that ‘release’ must mean release from further prosecution for the offence with which he is charged. It is only by giving the term this wider meaning that the full purpose of the sub-article is met. Release from custody or from onerous conditions of bail meets part of the sub-article.”
[S v Heidnrich, (NmHC), 1996 (2) BCLR 197 (NmH): 1998 NR 229 at page 235 A-C.]
CONCLUSION
Based on the legal provisions contained in key International Human Rights Conventions Treaties and Protocols, to which Namibia as a constitutional democracy has subscribed, and their applicability to the Caprivi treason trial, the question arises:
Where do we stand and what need to be done now? What is the way forward?
It must be obvious that the Swapo government has overstepped all human and legal boundaries and made themselves guilty of gross human rights violations and abuse
Firstly for having allowed the security forces to commit acts of cruelty and torture against some, if not most of the accused, in direct violation of not only the Convention Against Torture and other Acts of Cruelty, Degrading and Human Treatment or Punishment that was ratified by the Government on 28 November 2008, but also the Namibian Constitution which clearly states in Art. 8 (2)(b) that:
“ No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”
The fact is most if not all the accused have been tortured and cruelly punished, The question is what happened to the perpetrators? Were they apprehended and tried, if so, when and if not, why not and who then is supposed to ensure that the Fundamental Human Rights and Freedoms of the people of Namibia, not only be protected but also enforced?
It is also clear from what I have argued earlier, that the Swapo government is in material breach of, not only our own Constitution, but also international Treaties / Conventions and Declarations, for having failed to ensure that the accused received a fair trial within a reasonable time.
Most of the accused have been jailed for 10 years this month, on “suspicion” of having participated in the abortive secessionist activities without having their constitutional rights exercised, namely the right to a fair trial. Many people have died while in custody.
The fact is that the Swapo government has failed dismally to act accordance with the Constitution of the Republic of Namibia and to the benefit of Namibia and its people
The fact that basically the entire leadership of the Mafwe tribe had been removed and jailed in the process and “appointment” and recognition of other traditional leaders who are perceived to be mere puppets of the Swapo government also raises a few question marks.
But the most important fact is that the way in which this Caprivi Issue was dealt with by the Swapo Government has caused immense pain, suffering and humiliation, physically and mentally, not only to the accused, but also to their families, due to the absence of their fathers, brothers, husbands and sons – the breadwinners. One can safely say that the Caprivi Region as a whole has been suffering tremendously.
If one analyses the present situation in which the incarcerated Caprivians find themselves, against the backdrop of the international charters and conventions to which we as a democracy have subscribed, as well as the quoted case law and the entrenched rights guaranteed in our Constitution, it leaves us with only one possible conclusion, namely that there has to be a political agenda, unbeknown to us, but very real in its existence, which led or even now, leads Government to ride roughshod over these entrenched and accepted principles of local and international justice.
Another perception exists in the world is that African countries are quick to sign Conventions, Treaties and Charters, but that they, after having done that, only pay lip service to it.
It is our submission that the international legal instruments and jurisprudence not only offer a legal way out to Government, based on legal precedence elsewhere, but that the Fundamental Human Rights and Freedoms enshrined in the Constitution of Namibia (especially in Chapter 3), should take precedence in this matter.
The protection of liberty (Article 7), respect for Human Dignity (Article 8) and Articles 11 and 12 that deal with arrest and detention and a fair trial, respectively are of special concern.
Here now is an excellent opportunity for the Namibia government to prove to the world that it is serious in subscribing to the said international principles and it is for this reason that we humbly request His Excellency, the President of the Republic of Namibia to act in the interest of Namibia as a constitutional and sovereign state and to release all the accused in the Caprivi Trial forthwith.
To pardon and to release the Caprivians accused of high treason, would amount to moral action that speaks of innate strength and an unwavering belief in the intrinsic value of the human person. It would amount to more than a symbolic act, but would demonstrate to every Namibian and to the world, that national reconciliation, justice, fairness, and equality are the cornerstones of our Republic. Let them go home, reconcile with their families and start to make their contribution to develop their region for the benefit of not only the Caprivians, but also the Namibian Nation as a whole.
We would however like to caution that should the accused not be released, then we, the Republican Party of Namibia will encourage the human rights organizations amongst others Amnesty International, to assist us in taking this issue to court as well as the international arena, because it should be evident that the Government cannot win this one.
I thank you
Henk Mudge
President of the Republican Party of Namibia
Foot notes: In case of enquiries please call or contact Republican Party President Henk Mudge at Tel:+ 264 61) 235006/7 or Fax: + 264 61 235547 or e-mail: hfmudge@mweb.com.na |
Source: www.shr.org.nan |
| http://www.nshr.org.na/index.php?module=News&func=display&sid=1138 |
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