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THE CAPRIVI CASE AND ABSOLUTE PROHIBITION OF TORTURE
|January 12, 2006
Posted by: nshr on Jan 11, 2006 - 11:26 AM
Press Releases In our NSHR Press Release of January 4 2006 urging Namibia’s top most custodian of the rule of law, Honorable Chief Justice Peter Shivute, to ‘promptly order or cause to be ordered an effective separate trial’ to establish whether or not the evidence now before High court in the Caprivi high treason saga had been obtained through torture and if so to (1) exclude such evidence from the said trial, (2) prosecute and punish those responsible for torture; and (3) to provide effective redress for the torture victims. We proposed that such trial should be instituted immediately before the resumption of the high treason trial on January 17 2006.
However, certain local media houses understood us (NSHR) to have urged the Chief Justice to “stop”, “suspend” or “stay” the high treason trial. Nothing could be further from the truth.
Rather, we stated that the Caprivi high treason trial is procedurally flawed and hence unfair and that we lamented the fact that a separate trial on torture had not come before the treason trial. In other words, we said that the torture trial should have come first. But since better late than never, it is still technically legally possible for a separate trial on torture to be instituted “as a corrective measure” even if such trial were to run concurrently with the high treason trial—a practice known as a trial within a trial!
Moreover, our separate trial argument is premised upon inter alia well-established legal principles and basic procedural values. The term “procedural” is understood by us to be referring to a time sequence of what comes first or before in a due process of law:
1. Promptness of Investigation
According to Articles 12 and 13 of the Convention against Torture (CAT), read together with the General Comment no. 8 of the UN Human Rights Committee (UNHRC), judges and prosecutors, given their role in upholding the rule of law, have a binding obligation to prevent all acts of torture and ill-treatment inter alia by promptly and effectively investigating such acts, by prosecuting and punishing all the torturers and their accomplices and by providing redress to the torture victims. The obligation to prosecute and punish alleged torturers is established in Article 5 of CAT read together Article 4 of CAT!
According to UNHRC’s General Comment 8(2), the term “promptly” means “not exceeding a few days”. Hence, for us “promptly” must be interpreted to mean just that. Nonetheless, in the case of the Caprivi torture victims more than six years had now lapsed, without such an investigation having been instituted into the torture allegation made against several law enforcement officials. This is a gross faux pas!
Moreover, it must be pointed out here that Namibia has acquired a notorious track record of tolerance or lenience towards alleged torturers dating back to the pre-independence era, where both apartheid South African authorities and the SWAPO leadership had subjected hundreds of Namibians to systematic torture and other gross ill treatment in flagrant violation of international human rights, humanitarian and customary law.
In the Caprivi secessionist case, ample prima facie evidence exists to enable Namibia’s judicial officers and State prosecutors to acquire a reasonable belief that systematic torture and other ill treatment had occurred in the aftermath of the August 2 1999 rebel attack. The following impermissible systematic commissions and omissions had occurred during the pre-trial detention interrogations and even thereafter:
· Severe bruising, injuries or scars all over the bodies of detainees
· Initial denial of detainees of access to legal representation
· Initial denial of ICRC personnel to have access to detainees
· Excessive, violent and irrelevant interrogation
· Forced confessions and intimidation to sign unread or false statements and failure to supply copies to the defendants
· Denial or lack of proper medical assistance
· Detention incommunicado for a long period of days
· Police refusal to give information about detainees to families
· Post-traumatic symptoms (sequelae) on the part of some detainees
· Failure by the police to properly investigate allegations of torture and take steps against the torturers and their accomplices
· Persistent delays in trial proceedings
There is also ample face value evidence that inter alia the following acts of torture were systematically and extensively used during the pre-trial proceedings to intimidate Caprivi treason suspects in order to force them to sign statements written by the torturers:
· Severe and systematic beatings with sjamboks
· Severe and systematic assault with rifle butts
· Grievous and systematic beating with rubber batons
· Serious and persistent assault with fists or punching
· Removal of finger or toe nails
· Banging of heads against the wall
· Application of electric shocks to genitals
· Splashing with beer, salt and water onto fresh wounds of suspects
· Death threats
· Denial of food and water as well as sleep
· Holding suspects naked even for days
Very severe physical and mental pain and suffering had therefore been intentionally inflicted on secessionist suspects in virtually all cases for various reasons. There is a strong suspicion of discrimination on the basis of ethnic affiliation, as virtually all the tortured suspects were suspected by the torturers to belong either to the United Democratic Party (UDP) or the Mafwe tribe and were interrogated about the functioning, membership and political plans of UDP, which is irrelevant to the charges they are facing. Thus, police and other torturers were also using torture and ill treatment for the purpose of gathering intelligence.
During their testimony, some of the suspects claimed that there was a clear ethnic targeting or tribal bias to the indiscriminate arrests of Mafwe tribesmen in connection with the alleged secessionist plot. Moreover, one of the alleged torturers from the Namibian police, one Sergeant Eimo Popyeinawa, confirmed as much when he testified in a Grootfontein Magistrate’s Court during applications of bond that, according to his investigations "it's only one group, one tribe (that) wants to overthrow the Government".
Also, this state of affairs of ethnic targeting is also aggravated by the application of the so-called “common purpose” doctrine. This one-size-fits-all doctrine virtually exempts the Office of the Prosecutor General from its obligation to prove beyond reasonable doubt that each and everyone of the 132 Caprivi secessionist suspects had committed an act which has the causal effect to the alleged attempt to secede the Caprivi Region from Namibia.
It was against that background that we expressed an opinion as we have done in our January 4 2006 Press Release that Namibian magistrates, judges, prosecutors and even defense lawyers had dismally wronged the Caprivi secessionists suspects inter alia by procedurally failing to promptly and effectively investigate or cause to be investigated allegations of torture by an independent, impartial and competent court of law. It is difficult to for us to say that Legal Assistance Centre (LAC) lawyers had also failed the alleged secessionist suspects because LAC does not handle criminal cases. NSHR, which handles both civil and criminal cases, had in the very beginning of September 1999 approached inter alia lawyer Lucius Murorua in this regard, but due to financial constraints the challenge could not materialize.
Since this wholesale failure on the part of the executive authorities, prosecutors, magistrates, trial judges and defense lawyers had occurred and with this momentous miscarriage of justice constantly in mind, we believe that the Honorable Chief Justice--being the country’s highest judicial officer, whose prime obligation is to respect, protect and fulfill the administration of justice and enforce national and international law--is the most appropriate person to cause to be undertaken the aforementioned corrective measures in the form of a separate trial.
Article 13 of CAT imposes upon every State Party to CAT an unfailing obligation to ensure that, any individuals alleging that they have been subjected to torture have the right to complain to inter alia judicial authorities and to have their complaints taken seriously. Caprivi secessionist suspects, have, on several occasions, complained in the magistrate’s courts during bond application hearings back in 1999 and even thereafter that they had been subjected to torture and other ill treatment. However, no prompt and effective investigation had so far been instituted into their allegations.
On the view that judicial officers, prosecutors and defense lawyers had so far failed to cause the allegations of torture to be investigated promptly and effectively, this is not the position of NSHR or Phil ya Nangoloh alone. According to Amnesty International (AI), one of the most reputable international human rights organizations, Namibian authorities (and this includes judicial authorities) had failed to investigate allegations of torture made by Caprivi high treason suspects.
As for the issue of a separate trial on torture, AI also agrees with NSHR:
“Amnesty International believes that whenever there is an allegation that a statement was elicited as result of torture, cruel inhuman or degrading treatment or duress, a separate hearing should be held before such evidence is admitted in the trial”.
2. Absoluteness of the Prohibition of Torture and Other Ill Treatment
One of the most basic tenets of human rights and compelling international customary law is the doctrine of universal proscription of torture and other ill treatment. Torture and other ill treatment are absolutely prohibited in terms of Article 5 of the Universal Declaration of Human Rights (UDHR), Articles 2(1) and 15 of CAT, Articles 7 and 10(1) of ICCPR, UNHRC’s General Comment no. 20, Article 3 common to the four Geneva Conventions of 1949, Articles 7(1)(f) and 8 (2)(ii) of the Statute of International Criminal Court, Article 5 of the African Charter on Human and Peoples Rights and Article 3 of the European Convention on Human Rights as well as Article 5(2) of the American Convention on Human Rights. Also, torture and cruel treatment is absolutely prohibited in terms of the Inter-American Convention to Prevent and Punish Torture and the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment.
Furthermore, Article 2, sub-Articles 2 and 3, of CAT says that no exceptional circumstances, whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture and that an order from a superior officer or a public authority may not be invoked as a justification of torture. Obviously, this prohibition includes the torture and other ill treatment of anyone on suspicion of high treason or “provocation” by Caprivi “terrorists”. Major General (ret.) Martin Shalli, one of the suspected torture accomplices, has, on numerous occasions, treated the Caprivi secessionist suspects as “terrorists”. The doctrine of the absolute prohibition of torture and other forms of ill treatment applies, irrespective of the conduct of “terrorists”. This doctrine cannot be overridden by a state’s national interest or dealing with alleged terrorists.
The absolute prohibition of torture doctrine constitutes a peremptory norm and has the status of jus cogens or juris gentium (meaning status of general international or international customary law). While the obligation to prohibit torture and other ill treatment has achieved the status of erga omnes (meaning an obligation that must be complied with by all States and, by extension, all individuals).
In addition, torture constitutes a crime against all States members of the international community. The crime of high treason, on the other hand, is a crime against only one such State. In the event of a conflict between national law (for example, a law criminalizing secessionism and high treason (such as Namibia’s Criminal Procedure Act 1977 as amended), on the one hand, and international law (for example, a law prohibiting or criminalizing the use of torture and other ill-treatment), on the other, preference is given to the application and interpretation of international law. In other words, it is absolute nonsense for the Office of the Prosecutor General to have claimed that in the alleged Caprivi secessionist saga, the allegations of torture are “not as serious as the other case of high treason”.
Furthermore, the fact that Namibia has so far failed to incorporate the provisions of CAT into its Criminal Procedure Act should neither be a defense nor a shield behind which our judicial officers and prosecutors may hide or may explain their failure to promptly and effectively enforce the doctrines of the absolute prohibition of torture and the inadmissibility of evidence tainted by the use of torture or similar acts.
The role of prosecutors in the investigation and prosecution of grave violations of human rights and other crimes recognized in international law is clearly set out in the UN Guidelines on the Role of Prosecutors and the Rome Statute of the International Criminal Court (ICC). However, in the case of the Caprivi secessionist saga, Namibian prosecutors in particular have deliberately or negligently ignored such international prescriptions in favor of their accusatorial and apparent punitive glee towards the suspects. There is no doubt in our mind that the prosecutors have firsthand information that systematic torture had taken place in the Caprivi secessionist saga! In this narrow regard, there seems to be a common purpose or cause on the part of prosecutors and the alleged torturers.
The interpretation and application of international norms must be carried out in good faith and in accordance with the general rules of international law. Namibia’s Office of the Prosecutor General must not invoke the country’s lacking criminal law to evade its international obligations. In accordance with Article 27 of the Vienna Convention on the Law of Treaties of 1969, a State party to a treaty cannot invoke the provisions of its internal law as justification for its failure to perform such a treaty.
The gravity of torture and other ill treatment does not need seasoned legal experts to know that torture and other ill treatment are part of the body of crimes classified as grave breaches of international human rights, humanitarian and customary law and crimes against humanity.
3. Inadmissibility of Torture Evidence: Doctrine of Exclusionary Rule
In terms of Articles 12 (1)(f) and 8(2)(b) of the Namibian Constitution, Articles 2(1) and 15 of CAT, Article 6 of European Convention on Human Rights, Article 10 of the Inter-American Convention to Prevent and Punish Torture the use of evidence obtained through torture in any legal proceedings is absolutely prohibited and such evidence entirely excluded from any such proceedings except against the torturers.
For a legitimate court to reach a decision on a case, either there must be evidence or lack of it. In other words, evidence is crucial for any legal proceedings to qualify to be fair proceedings! Hence, it goes without saying that a judicial investigation should have been promptly instituted way back in August 1999 after the first appearances of the Caprivi high treason suspects in the Caprivi and or Grootfontein Magistrate’s Courts to determine whether or not the evidence (of high treason) now before the Namibian High Court had been gained through coercive means, including torture and other ill treatment.
Finally having said tall the above should not be construed to mean that NSHR or Phil ya Nangoloh supports in any way, whatsoever, the rebel attack on three Government installations on August 2 1999. As matter of principle, NSHR strongly condemns such attack and does not in any fashion support anyone using force to achieve his or her objectives.
Phil ya Nangoloh
NSHR Executive Director
 Article 12: Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.
 Article 13: Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill treatment or intimidation as a consequence of his complaint or any evidence given.
 UNHRC General Comment 8(2) (on Article 9 of ICCPR) reads: “Article 9(3) requires that in criminal cases any person arrested or detained has to be brought “promptly” before a judge or other authorized by law to exercise judicial power. More precise time-limits are fixed by law in most States parties and, in the view of the Committee (i.e. UNHRC), delays must not exceed a few days. Many States have given insufficient information about the actual practices in this respect”.
 See Werner Menges, “Detainees denied key right”, The Namibian online, August 11 1999
 ICRC was finally given permission to visit detainees on August 18 1999, i.e. some two weeks after the mass arrests and torture started! See also Chrispin Inambao in “ICRC struggles to gain access to detainees”, The Namibian online, August 13 1999 and “ICRC finally gets green light”, The Namibian online, August 19 1999
 See Werner Menges in “High treason suspects to hear ruling on bail today”, The Namibian online, September 23 1999
 “Failure to investigate allegations of torture”, Namibia: Justice delayed is justice denied: The Caprivi Treason Trial, Amnesty International August 2003, AI Index: AFR 42/001/2003
 See “Flawed investigations” in Namibia: Justice delayed is justice denied: The Caprivi Treason Trial”, Amnesty International August 2003 (AI Index: AFR 42/001/2003). See also Fair Trial Manual, Amnesty International 1998, p.94
 Article 2: 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
 See Werner Menges, “Shalli on warpath in treason case”, The Namibian online, Wednesday, October 29 2003
 “Caprivi torture cases ‘on the back burner’”, The Namibian online, October 29 2002
 Article15: Prosecutors shall give due attention to the prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights and other crimes recognized by international law and, where authorized by law or consistent with local practice, the investigation of such offences.
Article 16: When prosecutors come into possession of evidence against suspects that they know or believe on reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave violation of the suspect's human rights, especially involving torture or cruel, inhuman or degrading treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence against anyone other than those who used such methods, or inform the Court accordingly, and shall take all necessary steps to ensure that those responsible for using such methods are brought to justice.
 Article 69(7) of ICC: “Evidence obtained by means of a violation of this Statute or internationally recognized human rights shall not be admissible if: (a) the violation casts substantial doubt on the reliability of the evidence; or (b) the admission of the evidence would be antithetical to and would seriously damage the
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