News and Information

Caprivi 13 rulings: A matter of rights
July 28, 2004

A WEEK ago, the Supreme Court ruled by a 3-2 margin that 13 Caprivi high treason suspects had been wrongly discharged from the case that they and 107 co-accused face in the High Court at Grootfontein. In an unprecedented five separate judgements, the members of the country's highest court dealt extensively with the issues raised in the appeal over the discharge of the 13. WERNER MENGES takes a closer look at these landmark decisions.

ULTIMATELY, it was a matter of the weighing up of rights that prompted a deeply divided Supreme Court last week to overturn the discharge of 13 men from the Caprivi high treason case.

For the three Appeal Judges who ruled that the 13 should be made to stand trial in the High Court at Grootfontein, the right of the public to have the alleged perpetrators of some extremely serious crimes put on trial, weighed heavily.

But the two other members of the bench came to the opposite conclusion - that all but one of the 13 had been correctly discharged from the case when Judge Elton Hoff ruled that the High Court did not have jurisdiction over them.

His ruling assumed that legally prescribed procedures had been flouted when they were brought from Botswana or Zambia to Namibia to be arrested and charged.

In the opinion of the dissenting judges, the 12 had been stripped of their rights to fair procedure to such an extent that it warranted a refusal by Namibia's courts to assume jurisdiction over them.

The same set of facts and arguments were placed before all five members of the Supreme Court that heard the appeal.

However, by weighing up the two opposing sets of rights - the community's right to see suspected offenders prosecuted and tried, on the one hand, and, on the other, the individual suspect's right to fairness and lawful procedure - the Supreme Court set course for a serious split in its ranks, triggered some robust dialogue between especially two of its members and caused some vehement disagreement between the Appeal Judges.


On one side of the debate was Acting Judge of Appeal Bryan O'Linn, who weighed in with a 183-page tome of a judgement.

Both he and acting Chief Justice Johan Strydom concluded that only the discharge of one of the 13, Charles Kalipa Samboma, was wrong, since the evidence before the High Court indicated that he had agreed to return to Namibia from Zambia.

For acting Judge O'Linn the position of the other 12 was something vastly different, though, and he did not mince words when expressing his opinion.

With the handing over of the 12, officials from both Zambia and Botswana, in conjunction with officials from Namibia, had not only failed to act in terms of Zambia's and Botswana's extradition and deportation laws, but also acted in defiance of international law in the form of the International Covenant of Civil and Political Rights and the United Nations Convention and Protocol on Refugees, he stated.

In doing so, they had also prevented the 12 from exercising their rights in terms of those laws, he added.

Acting Judge of Appeal O'Linn would have gone even further than Judge Hoff had when the latter found that there had been wrongdoing on the part of Namibian officials, his judgement shows.

He would have found that they had colluded and connived with their counterparts from Zambia or Botswana in order to get the high treason suspects surrendered to Namibia without following legal channels.

And he also would have found that in essence the Namibian authorities had indeed abducted the 12 from Zambia or Botswana - a finding that Judge Hoff did not make.

In December 2002, officials from Botswana had handed one of the 13, Osbert Mwenyi Likanyi, to Namibia only days after the Botswana High Court had ruled that another 13 high treason suspects in that country should not be extradited to Namibia, Judge O'Linn also noted.

He commented that the inference was unavoidable that the authorities had been discouraged by the Botswana High Court's decision, and had, as a result, taken "the haphazard, concocted and fraudulent steps" of Likanyi's hand-over to prevent a recurrence of that case.

"Surely this is an instance of gross abuse of both Botswana and Namibian legislation as well as international law and, in addition, a grave outrage to the fundamental rights of the accused," he declared.


"The illegal removal in which Namibian officials participated not only resulted in the destruction of the rights of the accused in Zambia and Botswana, but destroyed their rights specifically provided for in Section 17 of the Namibian Extradition Act, unless the trial Court declines jurisdiction to try them," acting Judge O'Linn stated.

Acting Chief Justice Johan Strydom agreed with him on that score, and pointed out that condoning such tactics could have grave effects on any Namibian.

As he put it:"Because of the involvement of the Namibian Police and/or members of the defence force, the respondents (twelve of the 13) were denied any rights they may have had in terms of the deportation laws and extradition laws of Zambia and Botswana and also Namibia.

These rights... were ignored by minor functionaries and, taken to its logical consequences, can open the door to the handing over also of Namibian citizens who had allegedly committed crimes in foreign countries despite the rights and safeguards provided for in the Extradition Act.

Any action which has the effect of suspending or circumventing the provisions of an Act, in this case Act 11 of 1996 (the Extradition Act), undermines the rule of law which is the basis of our Constitution."

It is in the public interest to uphold the fundamental rights of accused persons, just as it is in the public interest to protect victims and the public at large, O'Linn stated as he explained his opinion.

He also added:"I need to emphasise:Nothing in this judgment is intended to discourage co-operation between police, military and immigration officials of the Namibian State and their counterparts in neighbouring states.

What cannot be allowed, however, is co-operation in taking short cuts in conflict with the express provisions of the domestic law of these countries and even of International Law, because such actions will gravely undermine the Rule of Law entrenched in the Namibian Constitution, which is the Supreme Law of Namibia.

Such actions cannot be justified as in the public interest."


Acting Judges of Appeal Simpson Mtambanengwe and Mavis Gibson saw the public interest in a different light, though.

Having found that Judge Hoff had erred in examining whether the Zambian or Botswana authorities had adhered to their own countries' laws, they also concluded that there was no evidence to show that informal requests from Namibian officials for the handing over of treason suspects had prompted those countries to surrender suspects through a circumvention of their own laws.

Both pointed out that there was a principle in international law, that where agents of a State surrender a fugitive to another State for prosecution without resorting to their own extradition or deportation proceedings, the receiving State is not in breach of international law since it had not violated the territorial integrity of the surrendering State.

When the human rights of the high treason suspects are considered, the public interest in bringing those responsible for the August 2 1999 attacks at Katima Mulilo to justice was a weighty counter-balance that should also be considered, acting Judge Mtambanengwe reasoned.

Motivate the same opinion, acting Judge of Appeal Gibson quoted from a previous judgement of Namibia's High Court:"The Courts must particularly in the Namibian and South African reality, interpret and apply the Constitution in a way where it will be able to play its part in combating the emergence of a terror State, where the criminal minority dictates to and holds hostage the law-abiding majority and where no one, except the criminals, would have rights and freedoms."

The author of that judgement was Judge O'Linn.

With that, the four local Judges of this Supreme Court had deadlocked.

It would be up to Acting Judge of Appeal Fred Chomba to then tip the balance and make the ultimate decision.

Source: The Namibian News Paper

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