News and Information

Groundbreaking treason trial witness ruling set for Friday
October 13, 2004


HIGH Court Judge Elton Hoff may be pioneering virgin legal ground when he rules on Friday whether the media should be prohibited from revealing the identity of the third prosecution witness in the Caprivi high treason trial.

Judge Hoff indicated yesterday that he would rule on Friday on a prosecution application for a ban on the publication of the witness' name and photograph in the media.

He postponed the treason trial to the end of the week after defence lawyer Percy McNally and State Advocate Taswald July had addressed him on the prosecution's application yesterday.

McNally asked the Judge to dismiss the application; July asked him to grant the State an order forbidding the media from revealing the witness's identity.

From the arguments that were placed before the court yesterday and on Friday last week it would appear that Judge Hoff's ruling would be the first of its kind that the High Court of Namibia has been asked to make since Independence.

While both lawyers cited a variety of past court decisions to back up their arguments, all of these originated in South African courts.

There was no reference to any past Namibian judgement dealing with the specific section of the Criminal Procedure Act that allows a court to prevent the publication of a witness' identity.

The third State witness is, according to July, being regarded as "a very important witness" in the high treason case.

On Friday last week, Deputy Commissioner Abraham Maasdorp, who is leading the Police unit investigation the high treason case, also termed the young man at the centre of the prosecution's request for an order for the protection of his identity as "a very important witness" and "a key witness" in the high treason case.

At this stage scant information that the witness himself has placed before the court indicates that he - like the second prosecution witness in the trial - may have been an accomplice of the 120 men on trial before Judge Hoff on charges that they had been part of a plot to violently secede the Caprivi Region from the rest of Namibia some five years ago.

July told the Judge yesterday that if this third witness' identity was not protected, other, future witnesses in the trial would become reluctant and hostile and would choose to commit contempt of court rather than testifying for the prosecution.

He said the ultimate aim of the order that the State was asking the court to make was not to safeguard a witness, but to ensure that justice was done.

If justice could not be done when court proceedings took place in public and with the media reporting witnesses' names, then the general rule allowing publicity of the proceedings would have to yield to "the paramount interests of justice", July argued.

He added that the ultimate aim of the order the prosecution was seeking was that the witness had to be free from fear of facing reprisals because of the testimony he would deliver, and that he had to be able to testify freely and without his testimony being distorted by fear.

But fear was not what the witness had testified about when he told the Judge last week that he did not want to have his identity revealed in the media, McNally argued.

The witness did not tell the court that he felt "frightened" by the prospect of the media reporting his name; he said it made him feel "bad", McNally said.

"What is however clear, is that the witness is afraid of losing a popularity contest," McNally commented.

"The witness's fear lies in what people will think of him once he returns to his village" after his testimony, the defence lawyer argued.

July had told the court that State witnesses faced the prospect of being labelled as traitors by their own people because of the fact that they had testified for the prosecution against accused persons who might hail from their own communities.

It was "a very difficult thing" that the State was asking from its witnesses, he remarked.

But that was not the sort of situation that the Criminal Procedure Act catered for with its provision for the protection of a witness's identity, McNally argued.

The law did not provide for the protection of a witness where there was a "remote, far-fetched and fantastical fear" that harm might befall him because of his testifying, according to McNally.

He charged that Maasdorp had made "a fatal concession" when he confirmed to the court that the application before the Judge was not for the protection of the witness, but for the convenience of the State.

In any event there was no logic behind the State's application, McNally added.

That is because the public would still be able to attend the court proceedings during the third witness's testimony, and they would then be able to report his identity to people in the Caprivi Region and the witness's home area in any event.

In that way, whatever order the court makes prohibiting publication of the witness's name would become academic, McNally stated.


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