News and Information

Court reserves judgement on Namibians' extradition
July 13, 2004
13 July, 2004

LOBATSE - Judgment on an appeal by the Namibian government for the extradition of 13 Namibian citizens, who have been given refuge in Botswana has been reserved.

An application for their extradition was made by the Namibian government through the Attorney General in 2001, citing high treason, attempted murder, robbery, possession of firearms, ammunition and explosives without a licence as crimes for which the men were wanted.

Some of the respondents are Kakena, Alfred, Chris Mushanana, Jones Kache, Francis Kakena, Aawid Mumbone, Richard Sitali, Samulandela Ntelamo, Mutoiwa Kabuku, Muzamai Thaddeus and Claasen Kawana.

The Gaborone Village Magistrate's Court had ruled in favour of the Namibian government by granting the application for their surrender.

The magistrate ruled that if extradited the men would not be prejudiced at their trial and that the offences for which they were sought were not punishable by death.

It further ruled that 13 men would not be tried or detained in Namibia for any offence committed prior to their surrender other than the extradition crimes proved by the facts on which the surrender is grounded.

The respondents appealed to the High Court in 2001 and won the appeal when the High Court ruled that the offence for which they were sought were precluded by Extradition Act of 1990.

Presenting an appeal on behalf of the Namibian government at the Court of Appeal, Bafi Nlanda, of the Attorney General's Chambers, argued before a panel five judges that the High Court should have established whether the crimes constituted "extradition crimes" in terms of the Extradition Act of 1990.

He also argued that if the court was satisfied that the crimes were extradition crimes, it should have enquired into and established whether or not the Act did preclude him from ordering the extradition.

"Before considering whether the crimes were offences of a political character, the judge should have first looked at what offences are excluded from being offences of a political character, he argued.

Nlanda further argued that after excluding some of the charges, the judge should have determined whether other charges constituted offences of a political character and thereafter determined which of the remaining charges should be excluded.

Nlanda contended that the 1990 Act did not have a list of extradition crimes hence treason and sedition were crimes for which a fugitive could be extradited subject to the 1968 Act.

He submitted that there was no definition of 'offence of a political character in the 1068n Act which could be retained.

Responding to the appellant submission, the respondents attorney Jeffrey Bookfinder argued that the crime of high treason in Namibia was an offence of a political character for which extradition is never granted.

He argued that "high treason is nothing but a political offence as its nature is aimed at protecting the state against the unlawful act of a person owing allegiance to the state".

Bookfinder further that under both South African law, taking up arms against the state to effect something less than the complete overthrow of the existing regime such as unconstitutional secession of region, constituted treason.

He said treason was also a political offence in terms of South Africa and Botswana laws.

He said the Namibian representative's statement incorporates an intractable contradiction, saying that he firstly argued that the crime which the men are being charged with is not political and then later on stated that the men allegedly took up arms for the purpose, unlawful and misguided as their course of conduct may have been of furthering their political beliefs.

Bookfinder contended that the representative must demonstrate sufficient evidence of the alleged offence in order to entitle the respondent to ground its application for surrender of the appellants for the offence of high treason.

He said if the acts, which the men are accused of, do not constitute evidence of a political crime, then they can not be extradited on a charge of high treason because "as stated, that is the only nature of the offence".

He argued that the appellant's grounds for appealing do not have merit as high treason was a political crime and that the court did not rely on hearsay evidence in determining the cases.

The five presiding judges are Justice Patrick Tebbutt, Justice Rodger Korsah, Justice Chris Plewman, Justice Ian Sutherland and Justice Hein Grosskopf, while state counsel were assisted by Ambrose Mubika and Virgil Verger respectively. BOPA


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