News and Information

Supreme Court calls time on treason trial
September 14, 2010

Supreme Court calls time on treason trial


THE main Caprivi high treason trial – already the largest and longest criminal trial in Namibia’s history – must come to an end as soon as possible, according to the Supreme Court.

“I must note the concern of all the Judges that this trial is not being driven forward with the urgency it deserves to bring it to finality,” Acting Judge of Appeal Johan Strydom commented at the end of an appeal judgement flowing from the high treason trial that was delivered in the Supreme Court yesterday. “It is in the interest of everybody, also in regard to the principle on which our State is constituted, namely the rule of law, and the right of the accused persons to a speedy trial, that this case be brought to finality as soon as possible.”

Former Chief Justice Strydom, who is continuing to serve in the Supreme Court as an acting judge of appeal, made the remarks at the close of a judgement in which reasons are given for an order that was announced in the Supreme Court on June 9.

With that order, the court turned down a request by the State to be allowed to appeal against part of a judgement in which Judge Elton Hoff ruled that alleged confessions made by 26 of the men being prosecuted in the treason trial cannot be used as evidence against them.

The Supreme Court’s ruling was a unanimous decision of Judge of Appeal Gerhard Maritz and Acting Judges of Appeal Strydom and Simpson Mtambanengwe.
The main Caprivi treason trial is now in its seventh year, with the State still presenting evidence to the court in a bid to prove its case against the 113 men still facing a total of 278 charges before Judge Hoff.

They are being prosecuted in connection with an alleged conspiracy to stoke an armed separatist rebellion in the Caprivi Region between January 1992 and December 2002.

At the start of the first stage of the trial in the High Court at Grootfontein in late October 2003, there were still 121 people in the dock. Since the start of the trial, eight of the charged men have died. Another ten suspects died before the start of the trial.

Most of the suspects have now been in custody for more than eleven years.

After Judge Hoff ruled on March 1 that alleged confessions by 26 of the charged men are not admissible as evidence, the prosecution asked to be given leave to appeal against his ruling.

Judge Hoff ruled on April 1 that the Sate can appeal to the Supreme Court only in respect of twelve alleged confessions that he excluded as evidence because the suspects who made the statements before Magistrates had not been warned of their right to apply for State-funded legal aid.

In the Supreme Court’s reasons given yesterday, Judge Strydom analysed the section of the Criminal Procedure Act that gives the Prosecutor General the right to appeal to the Supreme Court against “any decision” given in favour of an accused person in a criminal trial in the High Court.

Judge Hoff’s ruling of March 1 was not a final decision that cannot be changed by Judge Hoff himself later in the trial, he noted.
Considering the section of the Criminal Procedure Act that gives the Prosecutor General a right to appeal against a decision taken in favour of an accused person, Judge Strydom concluded that the State’s right to appeal would only arise after an accused person had actually been acquitted.
Judge Hoff’s ruling on the admissibility of the alleged confessions was not an acquittal.

In exceptional circumstances, however, leave to appeal can be given before a criminal trial has come to an end, Judge Strydom also noted.
Judge Strydom stated: “The question is then whether there are exceptional circumstances present in this matter which will enable this Court to grant leave to appeal at this stage of the proceedings. I agree that this is not the ordinary run of the mill case which more frequently takes up the time of Judges. Its sheer magnitude in the number of accused persons, the number of witnesses and charges, puts it on a different level from cases normally prosecuted. I do, however, not think that that factor is sufficient to warrant a departure by this Court from the general rule (. . .).”

The prosecution’s complaint is basically that Judge Hoff “excluded evidence which, according to the opinion of the State, should have been allowed,” he said. “This is no exceptional matter. It is one which Judges and magistrates face almost daily in dispensing justice in our criminal courts.”

Since Judge Hoff’s ruling of April 1 the trial has been suspended, while the Supreme Court hearing on the appeal that Judge Hoff allowed the State to pursue was being awaited.

That appeal is now scheduled to be heard on October 25.

The Supreme Court also had some comments to make about the fact that the trial – which Judge Strydom described as “unwieldy and colossal” – has not been continuing over the past five months: “It is difficult to understand why the trial has been postponed pending the outcome of this petition and the appeal. If the issues raised in the petition and the appeal were the only ones relevant to the remainder of the trial, the postponement – apparently granted at the instance of counsel for the defence – might have been justified. However, the Court has been assured that many of the few hundred remaining witnesses which the prosecution intends to call will testify on matters wholly unrelated to those issues.”

The trial is supposed to return to court on Monday next week, but the prosecution will still be asking for a further postponement pending the hearing of the appeal, Deputy Prosecutor General Herman January said yesterday.


    Support Caprivi Freedom
Fill out the form below to become a member of this site and receive our regular newsletter.

First Name
Last Name