News and Information

Date set for 2nd Caprivi treason trial ruling
October 18, 2005


A RULING that should indicate whether the second Caprivi high treason trial will continue, or whether 11 of the 12 men charged have succeeded with a challenge against the court's power to try them, is to be given in the High Court on Tuesday next week.

Defence lawyers Nate Ndauendapo and Zagrys Grobler and Deputy Prosecutor General Danie Small wrapped up their legal arguments on the jurisdiction challenge before Acting Judge John Manyarara on Wednesday last week.

The trial of the 11 and another co-accused, who is not questioning the legality of the way in which he was brought before court, started on September 19 with the two defence lawyers telling the court that they were submitting special pleas to the court.

In terms of these pleas, 10 of the accused men who are represented by Ndauendapo claim that the authorities in Botswana arrested them unlawfully, abducted them to hand them over to the Namibian Police, and in the process breached international law.

Grobler also challenged the court's jurisdiction on behalf of his client, John Mazila Tembwe, but his special plea took a different line to the pleas raised by Ndauendapo.

Grobler informed the court that Tembwe was also arrested by the Botswana authorities and handed over to Namibia, but that this was done without him being given a fair trial to establish his refugee status in Botswana.

The result was that the Botswana police's actions when they handed Tembwe over to Namibia, and the Namibian authorities' receipt of Tembwe, violated his human rights and as a result were unlawful, the court was told.

All 11 men challenging the court's jurisdiction claimed that they had been granted asylum in Botswana as refugees from Namibia.

No witnesses from Botswana testified during the hearing on the special plea of the 11.

Instead, Small concentrated the State's efforts on evidence from Namibian officials who told the court that they had received people who, according to what they were informed at the time, were being deported from Botswana.

The Namibian officials were told that the deportees' refugee status had been revoked because they had breached the conditions of that status by having returned to Namibia in the interim.

But according to Ndauendapo's argument last week, there was no actual direct evidence before the court to show that his 10 clients' refugee status had been revoked.

He told the court that both Botswana and Namibia had an Extradition Act in place, but that it was clear that no extradition procedures were followed to have the men returned to Namibia.

His clients were also not served with deportation orders, were not informed of their rights, and in the process there was a gross violation of human rights, Ndauendapo.

With laws regulating the extradition of people accused of crimes in both Namibia and Botswana, those laws should have been followed, Ndauendapo said.

He quoted from a South African Constitutional Court judgement on what he argued had been a similar failure to follow extradition procedures: "Government is the potent omnipotent teacher for good or ill, it teaches the whole people by its example.

(...) If the Government becomes a lawbreaker, it breeds contempt for the law, it invites every man to become a law unto himself, it invites anarchy."

Grobler argued that, with Tembwe not claiming that he was abducted to be brought before a Namibian court, the prosecution was left with the burden of proving that he had been brought before court legally.

No evidence had been led to show that Tembwe had been brought before court in a lawful way, and because of that, the court should decline to exercise its jurisdiction over him, Grobler said.

The prosecution should have proven either that Tembwe had been extradited, or that he had been deported, but had not managed to establish any of these, Grobler argued.

Small argued that neither of the two lawyers seemed to understand the majority judgement in which the Supreme Court last year overturned a High Court judgement in which a similar jurisdiction challenge from 13 high treason suspects on trial in the High Court at Grootfontein had been accepted.

According to the Supreme Court's decision, international legal principles precluded a Namibian court from sitting in judgement on the legality of acts that another state's authorities had performed, Small said.

In this vein, a Namibian court would only be entitled to refuse to assume jurisdiction over people who another country's government had handed over to the Namibian authorities if it was shown that Namibian officials had connived with officials from the other country to break or circumvent laws to get suspects delivered to Namibia, Small argued.

Even if Botswana had, for example, chosen to load the treason suspects into a circus cannon and shoot them across the border, Namibian courts would have nothing to say on that, unless it was shown that Namibian officials had stood next to the cannon or had helped to load it, Small told the court.

The 11 were handed over to Namibia on three separate occasions.

Tembwe and a co-accused were handed over on September 20 2002, another two were handed over on December 6 2002, and Botswana handed over another seven on December 12 2003.

All of them have been kept in Police custody since their arrival in Namibia.


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