News and Information
Namibia loses appeal
|August 4, 2004
| 04 August, 2004
LOBATSE - The Namibian government has lost an appeal to have 13 of its citizens extradited back to their country.
In its judgement the Court of Appeal dismissed the appeal and upheld the High Court judgement of December 2002 which said that the respondents should not be extradited.
The Court of Appeal panel of judges, comprising Justice Patrick Tebbutt, Justice Rodger Korsah and Justice Chris Plewman ruled that the crimes for which the 13 men are wanted were political.
The 13 respondents are Kakena Alfred, Chris Mushanana, Jones Kache, Francis Kafura, Puteho Matengu, Duncan Mushwena, Ivan Kakena, Aawid Mumbone, Richard Sitali, Samulandela Ntelamo, Mutoiwa Kabuku, Muzamai Thaddeus and Cleasen Kawana.
Justice Tebbut said because of the ambit of the extradition law, courts dealing with extradition cases frequently refer to decisions from other jurisdictions dealing with the same point.
"Thus there is in effect an international law of extradition even if it is applied in municipal courts. This should, in my view, also be the approach of courts in Botswana," he said.
The court, therefore, referred to decision of American and British courts in dealing with the appeal. The appellant had made the appeal on the grounds that the crimes for which the men were wanted were not of political character and that the High Court had wrongly relied on inadmissible hearsay evidence.
Tebbutt explained that the extradition law not only sought to assist states in criminal matters but it was also aimed at protecting the fugitive's rights.
Regarding extradition offences, Tebbutt cited a ruling by a UK court in which the judge ruled that the use of force or it may be other means to compel a sovereign to change his advisers or to compel a government to change its policy may be just as political in character as the use of force to achieve a revolution".
Justice Tebbutt agreed with the quoted ruling saying the views expressed by the judges were consistent with and should have application to the extradition laws of Botswana.
He said that high treason and unlawful possession of arms and ammunition were considered political offences in both the UK and the US.
Tebbutt cited the Penal Code as saying that a person is guilty of treason if he/she prepares or endeavours to procure by force any alteration of the law or policies of government or if he/she prepares or endeavours to carry out by force any enterprise, which usurps the executive power of the state in any matter of both public and general nature.
He said the definitions bring treason full square within the political character of offences as described in the cases cited.
Justice Tebbutt said that the appellant's attorney Bafi Nlanda was unable to suggest any type of treason that would not be of a political character.
Nlanda had submitted that the men could have used other democratic avenues to seek redress of their grievances.
In response, Tebbutt said that was irrelevant because if the respondents had chosen to pursue other avenues they would not have committed and been charged with treason.
"More over, Mushwena's averment that they had exhausted their democratic and peaceful means and had to look to other options has not been challenged.
Justice Tebbutt went on to say that the extradition of the men charged had to be refused because high treason is a political offence and because the actions of the men in August 1999 were in light of the background to them committed in course of a political struggle against the Namibian government in pursuance of the respondents' political aims to secure secession of Caprivi.
The Village magistrate had in her ruling said the offences were not politically motivated and that they were acts of terrorism.
Justice Tebbutt disagreed saying the evidence that they were committed in pursuance of a political ideals is overwhelming.
Tebbutt agreed with the High Court ruling that the likelihood that the men may be prejudiced if tried in their country connoted a possibility rather than a probability.
Regarding the murder and armed robbery charges which the men were also to face, Tebbutt said the charges were extraditable but the High Court refused to extradite them because their defence was sound and had to succeed.
The men had argued that they would be prejudiced at their trial or punished detained or restricted in their personal liberty by reasons of their political opinions.
Tebbut said the deputy inspector general had in his affidavit failed to deal with the allegations of torture and shooting of ex-refugees.
He said the deputy inspector general was unable to give direct evidence himself as to any of the allegations, in respect of most of them he said he had no knowledge of them but also denied them.
Regarding the second ground of appeal that the High Court relied on hearsay evidence, Tebbutt said that the allegations of abuse by one of the respondents were implicitly conceded by the inspector general or badly without substantiation denied by him and that the allegations by a brother to one of the respondents, Mathews Kawana, were not hearsay.
"Kawana's affidavit provided corroboration that human rights abuses were talking place in Namibia which the appellant, through the inspector general, appears to concede. It also provided corroboration for the fact that many of these stemmed from the political discontent in Caprivi", he said.
An application for their extradition was made by the Namibian government through the attorney general in 2001, citing high treason, murder, attempted murder, robbery, possession of fire arms, ammunition and explosives without a licence as crimes for which the men were wanted.
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 the 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 offences for which they were sought were precluded by Extradition Act of 1990. No order was made regarding the costs of the case. BOPA
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