News and Information
Foul play claims prove to be smoking gun in treason trial
|December 2, 2005
* WERNER MENGES
ACCUSATIONS of foul play on the part of the prosecution team in the main Caprivi high treason case turned the trial upside-down in the High Court in Windhoek yesterday.
Complaints raised by defence lawyer Patrick Kauta over contacts between members of the prosecution team and State witnesses set in motion a reversal of roles, transforming two members of the defence team into witnesses, while two members of the prosecution team found themselves in the role of suddenly being the accused.
As this twist in the trial played out before Judge Elton Hoff, the focus of attention shifted away from the 120 men arraigned before the Judge on high treason and 277 other charges, leaving the men in the dock as witnesses to probably the most serious clash yet between the prosecution and the defence in the trial.
Proceedings veered off on a side course that could have a major impact on the trial when Kauta told the Judge yesterday that the defence was asking him to make a special entry on the record to state that the proceedings in the trial so far had been irregular.
The effect of that, if it is done, could be that all the evidence so far led in the trial would be called into question.
Some 76 days of trial proceedings and the testimony of 18 State witnesses could then be questioned to such an extent that the Judge could be asked to attach no weight to it when he has to reach a verdict.
Kauta charged that the prosecution had been coaching witnesses on what to testify, had been consulting with witnesses after they started giving testimony in court, and had been consulting with witnesses while they were under cross-examination.
This was a pattern of gross irregularities, he claimed.
The smoking habit of one of the defence counsel in the trial, Jorge Neves, led to yesterday's events.
Neves was the second witness to testify as part of Kauta's application for the making of a special entry on the record.
He did so after one of his colleagues, Jonathan Samukange, had also given testimony.
As their testimony was heard, the two prosecution team members at the centre of Kauta's claims, Deputy Prosecutor General Taswald July and Niel Lakay, were absent from the courtroom, waiting outside for their turn to testify.
Neves told the court that he was looking for a cigarette when he walked into the prosecution's office, without knocking, during an adjournment on Wednesday morning.
July and Lakay were inside, and they appeared to be startled by his unannounced entrance, said Neves.
"With all due respect to this court, I thought they had seen the devil," Neves said.
He added that the State witness who had started testifying earlier that morning, Bernard Baleke Kanzeka, was with the two prosecutors, and from their reaction, he could say "categorically" that the prosecutors were consulting with the witness.
Neves said he asked if anyone had a cigarette, was told that they did not, and he left, returning to the defence's office to report to his colleagues that he had found the prosecutors consulting with their witness.
Samukange told the Judge he at first did not believe Neves, and then went to the prosecution's office to see for himself what was going on.
He said he found Lakay sitting next to the witness on a couch, with the written statement that the witness had made to the Police in his hands, while July sat facing the witness, with notes that he had made in court in his hands.
He did not himself witness any consultation going on, but from what he saw, the only inference that he could draw was that a consultation was indeed in progress, Samukange said.
July asked him to excuse them, because they were consulting with the witness, he said.
July's version of their exchange will be different, Deputy Prosecutor General Danie Small, who represented the State in his two colleagues' absence, told Samukange.
July will tell the court that he had asked Samukange to excuse them because they were busy - and that he did not mention consulting.
Small also indicated in his questioning of the two lawyers that in his interpretation of Namibian law there was no outright prohibition of consultations between a State witness and a prosecutor while the witness was still giving his evidence-in-chief, before defence lawyers had started cross-questioning him.
But as he knows the law, from his experience of practising law in Zimbabwe, it was unacceptable to continue consulting with a witness after the witness had started testifying, Samukange told the court.
It was a gross irregularity which affects a conviction, he said.
According to Neves, the event on Wednesday was not the first of its kind.
While one of the previous witnesses, Shailock Sinfwa, was already under cross-examination, Neves's smoking habit again manifested itself during an adjournment, the court heard.
Neves said he stepped outside to smoke a cigarette, and saw through the window of the prosecution's office that Sinfwa was in the office, seated on the same couch where Kanzeka was later to be found.
He also saw July, with a writing pad in his hand, gesturing and talking to Sinfwa, he said.
Neves claimed that the defence team had noticed that State witnesses tended to change their testimony on crucial issues after adjournments.
That was what had made the defence more observant to see what "unlawful activities" were going on behind the door of the prosecution's office, he claimed.
Small also pressed Neves on the point whether he knew of any Namibian court rulings or specific legal provisions that prohibit consultations with a witness during evidence-in-chief.
On that question, Neves declared that he was testifying not as an expert or as an admitted attorney, but that as a layman he thought it went against the fairness of a trial to allow such a practice.
July and Lakay are expected to go into the witness box to give their side of the matter when the trial continues today.
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