News and Information

Terrorism sways the swing vote
July 28, 2004

WITH a decisive, tie-breaking vote to cast in the Supreme Court appeal over the discharge of 13 accused from the Caprivi high treason case, Acting Judge of Appeal Fred Chomba reminded himself of a very topical current issue - terrorism - to make his decision last week.

At the stage that Acting Judge of Appeal Chomba had to make his verdict on the fate of the 13 and the prosecution - or not - against them, each of his four colleagues on the Supreme Court bench had already made his or her ruling.

With that, the bench was split down the middle - two Judges having ruled that the 13 had been wrongly discharged from the case, and two having decided that only in respect of one of the 13 had the High Court made a mistake when it ruled five months ago that it did not have jurisdiction over the group.

In the most concise of the five judgements that were handed down in the Supreme Court last week, Acting Judge of Appeal Chomba broke that 2-2 tie, and sent the 13 back to the High Court to be tried.

He wrote a six-page opinion to do that, and in the process took a view strongly influenced by contemporary concerns over a world worry that does not know borders - that is, terrorism.

Acting Judge of Appeal Chomba added his voice to those of two of his colleagues, Acting Judges of Appeal Simpson Mtambanengwe and Mavis Gibson, as he stated his opinion that the circumstances in which the 13 were brought to Namibia - all with the cooperation of officials from Zambia or Botswana - did not constitute a breach of international law.

Using the rationale - in the past often applied by various courts - that a court would decline exercising jurisdiction over people who had been brought before it through a breach of deportation or extradition laws, would not meet the tenets of justice, he remarked:"In this day and age when the world has been and continues to be ravaged by terrorist activity it is otiose (serving no practical purpose) to apply that rationale."

There had been "a tumultuous upheaval" - a "riotous pandemonium" involving mayhem, destruction and security-threatening events - in the Caprivi Region on August 2 1999, Acting Judge of Appeal Chomba noted.

In the wake of those events - the armed attacks being blamed on an alleged separatist movement that the 13 are claimed to have been part of - alleged perpetrators decamped and took refuge in neighbouring countries of Namibia, he also noted.

To now use the rationale of the celebrated cases on jurisdiction challenges where unlawful cross-border surrenders of alleged offenders were claimed to have taken place, would send wrong signals to potential terrorists, the Appeal Judge continued.

He reasoned:"All you have to do is terrorise a state and when you are about to be apprehended by the authorities you cross territorial borders if you have the means to do so and you will be safe unless and until the country of refuge catches up with you and either deports or extradites you under the law.

Meanwhile any of your collaborators who were unable to make a cross border escape can face the consequences of the law alone.

Furthermore, I think that the human rights of fugitives from the law should not be considered by courts to be of prior concern over those of victims whose security remains endangered as long as the fugitives remain at large."

With that, his voice was added to those of Acting Appeal Judges Gibson and Mtambanengwe, and the balance of the scales of justice in this case tilted against the rights of the 13, and in favour of the rights of those wishing to see the alleged perpetrators of the August 2 1999 attacks tried and punished.

In the age of terrorism, is was clear, the world has become less safe not only for ordinary, law-abiding citizens.

It has also become so for people accused of acts regarded as terrorist in nature.

But the limitation of their rights comes with its own risks, since this could apply to terrorism suspects all-round - whether they had been proven guilty, or are in fact guilty, or not.


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