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News and Information
MEDIA BRIEFING: TWO CAPRIVIANS ACQUITTED
| June 25, 2007 |
 June 2007: MEDIA BRIEFING: TWO CAPRIVIANS ACQUITTED
Posted by: nshr on Jun 14, 2007 - 07:30 AM
MEDIA BRIEFING: TWO CAPRIVIANS ACQUITTED
The main objective of this media briefing is to welcome the acquittal by the High Court of Messrs Vincent Liswaniso SILIYE (38) and Vincent Khasu SINASI (47) on all six-related charges of (1) high treason; (2) sedition; (3) public violence; (4) unlawful importation, supply or possession of certain types of firearms; (5) illegal importation, supply or possession of certain ammunition; and; (6) unlawful importation, supply or possession of certain projectiles and or rockets with the intention to secede the Caprivi Region from the rest of Namibia.
Siliye and Sinasi were arrested and detained in neighboring Botswana on September 6 2001 and November 19 1999, respectively. Like the at least 2 500 other people from the Caprivi Region who also fled Namibia between 1998 and 2003, Siliye and Sinasi were forced to leave Namibia and to enter Botswana following gross and systematic violations of human rights and fundamental freedoms committed by members of the Namibian security forces in the Caprivi Region. At the receiving end of the said violations were predominantly if not exclusively members of either the Mafwe tribe or members and supporters of the United Democratic Party (UDP) led by Mr. Mishake Muyongo, now in exile in Denmark.
By welcoming this acquittal, we would like to state that we are not at all surprised by the ruling because of the generally unlawful and unprocedural manner through which Siliye and Sinasi were hauled by the High Court in the first place. As you might be aware, both men were abducted from Botswana and brought to Namibia in order to face the charges of high treason.
“High treason” is the common law crime characterized by an intention to undermine the authority of one’s State or the actual attempt to do so. Other offenses constituting high treason include waging war against the State and collaborating with the State's enemies by giving them aid or comfort. Alternatively, high treason constitutes the willful violation of one’s allegiance toward one's country, especially the betrayal of one's country, by waging war against it or by consciously and purposely acting to aid its enemies. “Sedition” on the other hand is the common law offense manifesting itself through the existence of an organized opposition intended to unlawfully change or overthrow existing authority by means of insurgence, insurgency, insurrection, mutiny, rebellion, revolt, revolution and uprising.
The crimes of high treason and sedition as well as those public violence; unlawful importation, supply or possession of certain types of firearms; illegal importation, supply or possession of certain ammunition; and unlawful importation, supply or possession of certain projects and or rockets with the intention of unlawful secession of the Caprivi Region from the rest of Namibia are interrelated, interdependent and interconnected.
Secondly, after they were handed over to the Namibian Police at the Ngoma border post on or around December 13 2003 and after they were arrested and before they were subjected to interrogations, Siliye and Sinasi were never warned about their four Article 7 rights, viz:
(1) the right to remain silent;
(2) the right not to say anything that can and will be used against them;
(3) the right to a lawyer before being interrogated and to have such lawyer present when they are being questioned; and
(4) if they cannot afford a lawyer and if they so desire, the right to be provided with such lawyer by the State before any interrogations.
These are called “Article 7 rights” because in terms of Article 7, read together with Article 12(1)(f), of the Namibian Constitution on the protection of personal liberty “no one shall be deprived of personal liberty except according to procedures established by law” and “no one shall be compelled to give testimony against themselves …”
The above provisions presuppose that there should be no law under the Constitution which authorizes or in anyway legalizes the unlawful deprivation of personal liberty in respect of anyone in the country. However, the two men were forcefully subjected to interrogations by a certain Detective Sergeants Kombungu and Eimo Popyeinawa as well as by a host of State security and military intelligence agents while their request to have access to a lawyer prior to interrogations were denied. Both Detective Sergeants Kombungu and Popyeinawa feature prominently on our lists of most notorious torturers of Caprivi detainees.
Thirdly, the detainees were procedurally only brought appeared before the Katima Mulilo Magistrate’s Court on February 2 2004 on charges of high treason. However, the have the right to habeas corpus or to be brought before court within 48 hours or soon thereafter as per the provisions of Article 11(3) of the said Constitution.
On December 12 2005 the UN Working Group on Arbitrary Detention (WGAD) classified the detention of 13 alleged Caprivi secessionists as a Category III detention. According to WGAD, the detention of John Samboma and 12 other persons constituted “total or partial non-observance of the international norms relating to the right to a fair trial which is of such gravity as to give the deprivation of liberty an arbitrary character”.[1]
Having allegedly been abducted from neighboring countries, Samboma & Others are disputing Namibia’s jurisdiction to try them for the crime of high treason.
WGAD said that, in classifying the detention of Samboma & Others as Category III detention, it considered the general principles set out in the Universal Declaration of Human Rights and the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment as well as the criteria laid down in Articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR).
In addition, during its consideration of Namibia’s First Periodic Country Report under ICCPR on July 30 2004, the supervisory UN Human Rights Committee (HRC) expressed concern that, contrary to the provisions of Article 14 of ICCPR, the right to legal aid “is not properly ensured in practice” in the country. Hence, HRC recommended that Government of Namibia (GoN) take measures to strengthen the implementation of the legal aid scheme and ensure provision of legal assistance to individuals entitled to such aid.[2]
A least 40 of the 131 high treason trialists remained without legal representation following the withdrawal of their GoN-instructed legal counsels. Legal counsel in respect of 15 of the 119 accused in the First Caprivi High Treason Trial withdrew on February 1 2005. Another fifteen's counsel withdrew from representing them on May 17 2005. Also in the First Caprivi High Treason Trial, defense counsel also withdrew from representing another two accused persons on November 1 2005, while one of the accused persons whose counsel had withdrawn from representing him earlier, again took up the defense lawyer's services later on.
The legal counsel for the 12 in the Second Caprivi Treason Trial formally withdrew in July 2006. They withdrew because according to them they could not carry out their clients' instructions to challenge the High Court's jurisdiction to judge them. The concerned treason trialists insisted that were not Namibians but Caprivians and that the Caprivi Zipfel has legally never been part of Namibia. They also argued that they were foreigners in a foreign country and were being wrongly tried in a foreign court for commissions or omissions that have occurred in their own motherland.[3] They demanded to be allowed to have legal counsel who was prepared to carry out their instructions, viz. to argue that Caprivi was never really part of Namibia.[4]
On several occasions NSHR has expressed concern at inter alia the procedural fairness of trial in which the accused are not allowed to have a legal counsel of their choice.[5] NSHR pointed out that the Caprivi high treason trialists are entitled to have a legal counsel of their choice, even if such counsel were to argue that the Caprivi Region was not part of Namibia.[6]
On July 27 2006 NSHR expressed its “deepest concern” about the prospects of unfairness in very serious criminal proceedings, in which an accused is denied, either by commission or omission, the fundamental and intrinsic right to defend himself or herself. We pointed out that the right to a fair trial by an independent, impartial, competent and lawful court is firmly enshrined in Articles 12(1)(a) and 78(2) of NC.
Furthermore, we have argued that the right of everyone to legal counsel of one’s own choosing is universally acknowledged in terms of Articles 14(3) (d), 7(1) (c), 8(2) (d) and 6(3) (c) of ICCPR, the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms, respectively.
[1] see Opinion no. 47/2005 issued on December 12 2005 UN Document (E/CN.4/2006/7, p.8)
[2] see paragraph 16, “Concluding Observations of the Human Rights Committee: Namibia. 30/07/2004. CCPR/CO/81/NAM (Concluding Observations/Comments”, Office of the High Commissioner for Human Rights, July 30 2004
[3] “NAMIBIA: Caprivi separatists still defiant”, IRINnews online, May 26 2005,“Second batch of high treason suspects lose their lawyers”, The Namibian online, Thursday, May 19 2005 and “Second treason trial still stuck”, The Namibian online, Monday, July 11 2005
[4] “We are not Namibians, say 15 treason accused - Trial hangs in the balance once again”, The Namibian online, Wednesday, February 2 2005, “’Caprivi 15’ treason suspects refuse to budge on jurisdiction challenge”, The Namibian online, Thursday, February 24 2005 and “Second batch of high treason suspects lose their lawyers”, The Namibian online, Thursday, May 19 2005
[5] “Fairness of second high treason trial questioned”, The Namibian online, Friday, August 11 2006
[6] “Fairness of second high treason trial questioned”, The Namibian online, Friday, August 11 2006
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Source: www.nshr.org.na |
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