News and Information

Supreme Court responds to treason trial torture claims
January 20, 2006


THE Chief Justice does not have either the right or the power to intervene now in the Caprivi treason trial to deal with allegations that some of the people accused in the trial have been tortured, the Registrar of the Supreme Court said in a statement released yesterday.

Earlier this month, the National Society for Human Rights (NSHR) issued a media statement to urge Chief Justice Peter Shivute "to promptly order a separate trial in the marathon Caprivi high treason trial in order to ensure that no evidence before the High Court has been tainted through coercive means, including torture and other ill treatment".

To ensure that the treason trial is fair, the organisation stated, such a trial on allegations of torture had to take place before the resumption of the trial, which restarted before Judge Elton Hoff in the High Court on Tuesday this week.

The NSHR also stated that it believed that Chief Justice Shivute, "as our supreme judicial officer (...) has, under both national and international law, a compelling obligation to order or cause to be ordered a separate trial to ensure that the doctrines of the absolute prohibition of torture and the exclusionary rule are upheld and the rule of law complied with".

"(A)llowing the treason trial to go ahead, without first ascertaining that the evidence of witnesses and suspects has not been tainted through torture or other atrocious treatment, constitutes an impermissible and momentous travesty of justice which should not stand," NSHR executive director Phil ya Nangoloh stated.

The action that the NSHR now wants the Chief Justice to take at this stage of the treason trial is, however, not legally permissible, Joubert stated yesterday.

Such an intervention "will also be premature and derogate from the independence and constitutional powers of the trial Judge," he added.

Joubert said a confession made by an accused person was only permissible as evidence when the prosecution proved beyond reasonable doubt that the statement had been freely and voluntarily made.

The Constitution precludes any court from allowing any evidence obtained by subjecting an accused person to cruel, inhuman or degrading treatment or punishment, he stated.

If any of the Caprivi accused alleges that a confession or other statement made by him was obtained in breach of that principle, the admissibility of the statement will have to be determined in a trial within the main treason trial, Joubert stated.

The trial court is best suited to deal with such a hearing, and will disallow a statement by an accused person unless it is satisfied beyond reasonable doubt that it had been made voluntarily, according to Joubert.

"No other court of equal or inferior jurisdiction has jurisdiction to decide on the admissibility thereof," he stated.

"Similarly, if it is alleged that a witness for the State has been unduly influenced or coerced to fabricate incriminating evidence against an accused, the trial court will allow the allegation to be canvassed under cross-examination and will in due course decide on the admissibility and weight, if any, to be accorded to the evidence of such a witness."

The Chief Justice would enter the picture only if the prosecution or a convicted accused person wants to attack a finding from the trial court on appeal to the Supreme Court, he indicated.

The NSHR was quick to react to the explanation from the Supreme Court yesterday.

In a press statement, the human rights organisation strongly commended the court for its reaction and explanation.


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