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Confessions ruling appealed
April 7, 2010
Confessions ruling appealed


THE marathon Caprivi high treason trial has ground to a halt again – and many months could pass before it gets back on track once more.

For the second time since the start of the trial almost six and a half years ago, the high treason case is now heading to the Supreme Court for an appeal hearing. This comes in the wake of a ruling that Judge Elton Hoff gave in the High Court at Windhoek Central Prison on Thursday last week.

In the ruling, Judge Hoff granted the prosecution leave to appeal against part of a previous ruling, given on March 1, in which he had decided that 26 alleged confessions that the State wanted to use as evidence in the trial are not admissible as evidence.

With the prosecution now being allowed to appeal against at least part of the March 1 ruling, the trial has been stopped until the Supreme Court has heard the pending appeal and given its judgement on the issue.

The next session of the Supreme Court is scheduled to take place from June 1 to July 15. The court will have another session from October 1 to November 15.

The leader of the prosecution team, Deputy Prosecutor General Herman January, said yesterday that the case is set to first return to the High Court on April 26, when Judge Hoff could be informed if a date for the hearing of the appeal had been set yet.
January said the State would now also be directing a petition to the Supreme Court to ask that it be allowed to appeal against the parts of Judge Hoff’s ruling on which the judge has not given the prosecution leave to appeal.

Judge Hoff ruled on March 1 that none of the alleged confessions that 26 of the 116 men who are on trial before him made before various magistrates after their arrest are admissible as evidence in the trial. He found that the State had not proven that the statements were made freely and voluntarily.

With some of the statements, the person appearing before the magistrate reported that he had been assaulted previously. The magistrates did not make further enquiries into these reports or have them investigated, but proceeded to record the statements that the charged deponents appearing before them then made.

This failure of the magistrates in question was one of the grounds on which Judge Hoff found that it had not been proven that those statements were made freely and voluntarily.

In the case of three of the accused who made statements, witnesses who testified for the State corroborated their claims of having been assaulted by members of the security forces before they made the alleged confessions. Judge Hoff ruled the statements made by them as inadmissible on that ground alone.

The statements made by twelve of the accused were ruled inadmissible on the single ground that these accused had not also been informed that they had a right to apply to be provided with State-funded legal aid when their right to legal representation was explained to them by the magistrate who took down the statement of each of them.

Not in agreement with the March 1 ruling, the prosecution team involved in the trial applied to be given leave to appeal to the Supreme Court to have the ruling set aside.

In the judgement given on Thursday, Judge Hoff noted that a mid-trial ruling like the one of March 1 can normally not be appealed before a trial has reached its end.

Prosecution team leader January however argued that exceptional circumstances were present and that these should sway the court to allow an appeal at this stage of the trial.

Judge Hoff agreed that exceptional circumstances were present – at least as far as the statements that were ruled inadmissible because of a failure to inform the accused of the right to apply for legal aid are concerned. It was in respect of these twelve alleged confessions alone that he granted the State leave to appeal to the Supreme Court, having found that there is a reasonable prospect that another court may come to a different conclusion on the admissibility of those statements.

He stated in his ruling: “(B)ecause of the complexity of this case an educated guess of when this trial would be concluded is virtually impossible. I do not foresee, having regard to the information provided, namely that this court would in future be required to rule on a number of pointings out, that the State’s case would be concluded during the course of this year. The majority of the accused persons have now been in detention for the past ten years.”

He reasoned that if, for argument’s sake, the trial is finalised within the next three years and the State is only then allowed to appeal against the March 1 ruling, and the State then succeeds with the appeal, accused persons who may in the meantime have been acquitted at the close of the prosecution’s case would then have to be returned to court to be put on their defence and to answer to incriminating statements in their alleged confessions. That in turn would also delay the finalisation of the trial, Judge Hoff stated.

The first appeal in the high treason trial to have gone to the Supreme Court was against a ruling that Judge Hoff gave in the early days of the trial on February 23 2004, when he found that the court did not have jurisdiction over 13 of the accused who claimed to have been abducted from Zambia and Botswana to be charged and put on trial in Namibia.

The treason trial also remained in limbo while that appeal was pending, until the Supreme Court overturned Judge Hoff’s ruling in a 3-2 split decision on July 21 2004. The trial proceeded a month later.


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