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Treason ‘confessions’ thrown out
March 3, 2010
Treason ‘confessions’ thrown out


A LONG battle to have alleged confessions and written admissions by 26 of the men being prosecuted in the main Caprivi high treason trial admitted as evidence in the trial has ended in a defeat for the State.

The trial before Judge Elton Hoff in the High Court at Windhoek Central Prison has since early in April last year been occupied with a trial within a trial to determine the admissibility of allegedly self-incriminating statements that 26 of the accused in the case made before various magistrates after their arrest.

In a judgement given on Monday, Judge Hoff declared all of the statements to be inadmissible as evidence.
The ruling is a key decision in the trial of the 116 men who are accused of having been involved in an alleged conspiracy to take up arms to secede the Caprivi Region from Namibia between January 1992 and December 2002. The ruling could determine if the prosecution would opt to still forge ahead with further possible attempts to try to introduce other self-incriminating evidence, this time about places connected to the case that accused persons are alleged to have pointed out to Police officers, in a bid to build their case against the accused.

Defence lawyers representing the accused objected to the use of the alleged confessions and admissions as evidence in the trial, based on claims that these statements were not made freely and voluntarily and that what was said in the statements was the result of what members of the security forces forced or told the accused to narrate to the magistrates.

According to the Criminal Procedure Act, a confession or written admission by an accused person is admissible as evidence against that accused if it had been proven that the statement had been made freely and voluntarily by a person in his or her sound and sober senses and without the person having been unduly influenced to make such a statement.

During the trial within a trial defence lawyers representing 13 of the 26 accused involved – the other 13 are no longer legally represented and are boycotting the trial – claimed that they were assaulted by Police officers or members of the Namibia Defence Force, that they were not properly informed of their rights, such as the right to legal representation, and that they were threatened and instructed about what they were supposed to tell the magistrates who later took down the statements from them.

Some of the magistrates who took down the statements recorded that the suspect before them had told them that he had been assaulted, and noted that numerous scars were visible on the person’s body – but then did not go further into that issue to determine the circumstances of the alleged assaults and the effect of these on the person’s claimed willingness to make a statement.

A magistrate who takes down a confession or admission being given by an accused person does not act like a recording machine, but has a duty, before taking down the statement, to be satisfied that the person before him or her is giving the statement freely and voluntarily, Judge Hoff remarked in the course of his 83-page ruling.
With several of the statements at issue in the trial within a trial the magistrates involved failed to carry out this duty, the judge indicated.

He stated that where an accused person has made an allegation of assault by the Police, the magistrate must question the person to eventually establish if the statement the accused is about to make would be given freely and voluntarily.

This was not done when several of the alleged confessions were taken down by the magistrates.
In some instances, the magistrates involved duly informed the accused person before them of his right to legal representation. They however did not inform the accused that he has a right to apply for legal aid if he cannot afford to pay for legal representation out of his own pocket.

This failure to inform an accused person of his entitlement to legal aid is fatal, Judge Hoff stated.
“Even though the entitlement to legal aid is not a fundamental right in terms of the provisions of the Namibian Constitution, how else would an unrepresented lay person be in a position to exercise his right to legal representation if this entitlement is (inadvertently?) withheld from him or her?” Judge Hoff reasoned.
A failure to inform an accused person of his right to apply for legal aid is tantamount to a violation of the fundamental right to legal representation, and such a failure violates an accused person’s right to fair pre-trial procedures, the judge stated.

One of the accused involved in the trial within a trial was John Tibiso Masake, who was arrested at Katima Mulilo in January 2001. A statement that he made to a ma-gistrate at Katima Mulilo on January 16 2001 was ruled inadmissible by Judge Hoff, who commented that a failure by the magistrate to inform Masake of his right to apply for legal aid “amounts to a fatal irregularity”.

Masake is also the only one of the accused in the trial to have previously pleaded guilty to a charge of high treason. He did that in the Grootfontein Magistrate’s Court on January 22 2001.
Before he pleaded, though, Masake indicated to the court that he needed legal aid, Judge Hoff noted. The magistrate then asked him if he wanted to plead to the charge and thereafter apply for legal aid, and Masake agreed to plead without having legal representation.

Judge Hoff commented that in his view this was an irregularity committed by the magistrate. “The accused should first have been given the opportunity to apply for legal aid before any charge was put to him,” he stated.
The trial is continuing on Monday next week. The prosecution is now presenting testimony from Police witnesses who were present at Katima Mulilo at the time of the alleged secessionist attacks at the town on August 2 1999 to the court.


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