News and Information
Challenge kicks off Caprivi treason trial No 2
|September 20, 2005
* WERNER MENGES
THE second Caprivi high treason trial - or at least a crucial preliminary stage of it - has begun.
The trial started before Acting Judge John Manyarara in the High Court in Windhoek yesterday - a year and nine months after the last arrests were made in this second criminal case about an alleged attempt to force the secession of the Caprivi Region.
Twelve men are being prosecuted in the second trial to flow from the alleged separatist plot, and 11 of them yesterday went on the offensive against the prosecution they face.
They informed the court, though their defence lawyers, Nate Ndauendapo and Zagrys Grobler, that they are raising a special plea that the court has no jurisdiction to try them for the offences they are accused of.
By doing this, they have embarked on the same route that 13 of the 120 men being prosecuted in the first Caprivi high treason trial pioneered when that trial started in the High Court at Grootfontein in late October 2003.
A challenge against the State over the legality of their arrests underpins the special pleas that the 11 raised yesterday.
They all claim that they were arrested by the Botswana authorities, who thereafter handed them over to The Namibian Police, and that this process was illegal.
As a result, they claim, they are not lawfully before the court, with the effect that the court does not have the jurisdiction to try them and should immediately discharge them.
Ndauendapo, who is representing 10 of the men disputing the court's jurisdiction, read brief statements from each of his clients, in which they set out the special plea, to the court to start off the trial proceedings.
Except for some dates that differ, all 10 statements are identical.
In the statements, the 10 say that each of them had left the Caprivi Region by illegally crossing the border into Botswana "due to persistent harassment by The Namibian Police Namibia Defence Force".
The first two accused, Progress Munuma and Shine Samulandela, were the first to leave the country, on October 27 1998, the court was told.
On November 4, Vincent Siliye did the same, on November 5 1998 Diamond Salufu and Alex Mafwila Liswani followed suit, and so did Boster Samuele on November 6 1998, Hoster Ntombo on December 10 1998, Alex Mushakwa on December 28 1998, Vincent Sinasi on January 12 1999, and Manuel Makendano in July 2001.
They were all granted political asylum in Botswana and based at Dukwe refugee camp, according to the statements that Ndauendapo read out in court.
They were later "forcibly and unlawfully arrested by the Botswana authorities and handed over to The Namibian Police," they stated further.
Seven of the men that Ndauendapo represents -Munuma, Samulandela, Makendano, Siliye, Sinasi, Mushakwa and Salufu - were arrested in Botswana and returned to Namibia in December 2003, they claim.
Ntombo received the same treatment on September 20 2002, while Samuele and Liswani were brought from Botswana to Namibia in the same way on December 6 2002, the court was told.
Each of the 10 claims that his "apprehension and abduction" from Botswana, the transportation to Namibia and the subsequent arrest and detention in Namibia "is in breach of international law and wrongful and unlawful".
They stated the ultimate thrust of their claims: "Under the circumstances I have not properly and lawfully been arrested and properly and lawfully been arraigned before a court of competent jurisdiction for purposes of trying me on the indictment referred against me and should be discharged forthwith."
Grobler, who is representing the eleventh accused, John Mazila Tembwe, informed the court in a notice that Tembwe, too, would be challenging the court's jurisdiction.
Grobler gave notice that Tembwe would tell the court that he fled to Botswana as a political refugee, that the Botswana Police arrested him and handed him over to The Namibian authorities, and that in this process he "was not afforded a fair trial to establish his refugee status and was handed over to The Namibian authorities without any legal process whatsoever".
Both the Botswana police's actions in handing him over to The Namibian authorities, and the latter's receipt of him, were unlawful and a violation of his human rights, Grobler told the court.
These pleas by 11 of the 12 accused - only Frederick Ntambilwa, who is claimed to have been arrested inside Namibia on July 18 2002, is not challenging the court's jurisdiction - left the prosecution with the task of proving to the court that the men are lawfully before the court.
That is what Deputy Prosecutor General Danie Small, who is leading the prosecution, set out to do yesterday.
His first witness was a Namibian Police member, Detective Sergeant Kavenauue Kombungu, who was involved in receiving the seven men whom the Botswana authorities handed over to Namibia in December 2003.
Kombungu told the court that according to instructions he received from Police headquarters on December 12 2003, he and some colleagues had to travel to the Ngoma border post in the Katima Mulilo area to receive Namibians who were being deported from Botswana and who were also suspects in the high treason case.
According to official letters attached to those written instructions, Botswana's Ministry of Foreign Affairs and International Co-operation had informed Namibia's High Commissioner in Botswana the previous day that Botswana was about to deport eight Namibian refugees to Namibia.
They stated that this was being done because The Namibians had violated the conditions for their stay in Botswana, and also violated the United Nations Convention on Status of Refugees by returning to Namibia during their stay in Botswana, Kombungu testified.
He is set to continue with his testimony today.
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