News and Information

June 10, 2010

AN attempt by the Prosecutor General to widen an appeal against a ruling given in the main Caprivi high treason trial at the start of March ended in failure in the Supreme Court yesterday.

In a ruling given by Judge of Appeal Gerhard Maritz and Acting Judges of Appeal Johan Strydom and Simpson Mtambanengwe, the Supreme Court dismissed an application by the State to be given leave to appeal against the part of Judge Elton Hoff’s March 1 ruling in the treason trial which is not already the subject of a pending appeal in the country’s highest court. The Supreme Court also declined the State’s request that it should use its powers to review Judge Hoff’s decision.
The three judges were unanimous in their decision, which was given a day after they had heard arguments on the State’s petition to be given leave to appeal against Judge Hoff’s ruling and for the Supreme Court to exercise its power to review Judge Hoff’s decision. Reasons for the court’s ruling are expected to be given later.

Most of the arguments heard on Tuesday dwelt on the question whether the prosecution can pursue an appeal in the Supreme Court at this stage of the trial, which is still in progress before Judge Hoff with the State still presenting its case to the court. Judge Hoff ruled on March 1 that 26 alleged confessions made by some of the charged suspects who have been on trial before him since late 2003 are not admissible as evidence in the trial. A week later he also disallowed an alleged confession made by another of the accused persons. Some of the alleged confessions were disallowed because the suspects who made these statements claimed to have been assaulted by Police officers before they gave the statements.

Twelve of the statements were ruled out because the accused who gave these statements were not informed of their right to apply for State-funded legal aid before they made the alleged confessions. In respect of these twelve statements, which were disallowed only on the legal aid point, Judge Hoff gave the State leave to appeal to the Supreme Court on April 1. That appeal is still pending. The prosecution, wanting to also appeal in respect of an additional 13 statements that were ruled inadmissible as evidence, then filed a petition with the Supreme Court, asking to be given leave to appeal.

After hearing arguments from the lawyers before the court on Tuesday, Judge Maritz also gave an opportunity to the 14 accused involved in the appeal bid who are not legally represented to address the court.

A spokesperson for the group, Austin Ziezo, used the chance to read an eight-page statement to the court in which he and his colleagues complained that the Supreme Court order, dating from June 2002, in which Government was ordered to provide them with legal aid for their trial, is being flouted. The defence lawyers who had been representing this group withdrew in early 2005 when their clients insisted that the lawyers should launch a challenge to the High Court’s jurisdiction over them – an instruction that the lawyers considered doomed from the start and were not willing to carry out.

Ziezo told the three judges that the now unrepresented accused “instructed our lawyers first and before we answer to any charges to challenge the jurisdiction of the High Court of Namibia over us as Caprivians and that of the Namibian government over the Caprivi Strip and its nationals, which we know for sure that the two does not have. This has been and will always be our utmost defence in the Caprivi treason trial.”

Ziezo also told the court: “Up till now nobody can convince us to say that the prospects of success of our jurisdiction challenge are rated nil. We believe that there is no person who will be able to do just that, because the history of Caprivi Strip is totally different from that of Namibia, it’s for this reason that we are called Caprivians. On top of this, the Caprivi Strip had its constitution of 1971 which granted the Caprivians the right to govern themselves, which constitution was never repealed by the Namibian government. This means that the Namibian Swapo government is governing Caprivi Strip by a clenched fist, illegally and by force.”

Judge Maritz responded by telling Ziezo that the hearing was confined only to the narrow issue of the State’s application for leave to appeal. He also offered Ziezo some advice: that a jurisdiction challenge would not be the only legal defence available to them on the charges they are facing. If a hunter goes on a hunt, he would not put only one arrow in his quiver, Judge Maritz told Ziezo.

The State was represented by South African senior counsel Jeremy Gauntlett and a colleague, Frank Pelser, as well as Deputy Prosecutors General Herman January, Danie Small and Taswald July. Louis Botes, Percy McNally, Hennie Krüger, Jorge Neves and Victor Kachaka appeared for the represented accused.


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