News and Information

Botswana rules against extradition of treason suspects
July 30, 2004

THE prosecution of alleged separatists accused of trying to secede the Caprivi Region from the rest of Namibia almost five years ago received a setback this week.

A five-judge bench of the Botswana Court of Appeal ruled on Tuesday that 13 suspected secessionists should not be extradited to Namibia to be tried for high treason.

The court's decision was unanimous.

Namibia's Ministry of Justice, which had played a key role in the now almost four-year-long process during which the extradition of the 13 had been requested, was informed of the court's decision yesterday.

At the heart of the Botswana Court of Appeal's judgement were findings that, firstly, the charge of high treason on which the 13 Namibians' extradition had been requested, was an offence that was political in nature.

In terms of Botswana's Extradition Act, no-one may be extradited from that country to another to be put on trial and punished for an offence of a political character.

On this score, Judge President Patrick Tebbutt, who wrote the Appeal Court's judgement, stated that the Gaborone Magistrate who had originally ruled that the 13 could be extradited was wrong when she found that the offences that the 13 were accused of were not political, but were simply acts of terrorism.

"I cannot agree," Judge President Tebbutt stated.

He also said that he accepted that it had been shown that there was evidence to show that the 13 had a case to answer to on the charges that Namibia wanted them to be extradited on.

The Judge added:"The evidence that they were committed in pursuance of a political ideal is overwhelming.

The possession of arms and ammunition was part of those actions and the offences arising from such possession were therefore also offences of a political character."

The Appeal Court also ruled that while the 13 cannot claim that they would not receive a fair trial before a Namibian court, they had shown that there was a reasonable chance that if they were surrendered to Namibia they might be punished on account of their political opinions by being ill-treated by Police investigating their cases or by prison authorities.

On this point, Botswana's Extradition Act states that a fugitive criminal should not be surrendered to any country if there is a likelihood that he may be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his political opinions.

In this respect the Court of Appeal also confirmed the Botswana High Court decision which in December 2002 overturned the Gaborone Magistrate's Court ruling that the 13 may be extradited.

Judges of Appeal Rodger Korsah, Chris Plewman, Hein Grosskopf and Lord Ranald Sutherland agreed with Judge President Tebbutt's judgement.

The 13 are Alfred Kakena Likunga, Chris Samuel Mushanana, Jones Brownson Kache, Francis Kavetu Karufu, Puteho Obbicious Matengu, Dunbar Tumisa Muswena, Ivan Masole Kakena, David Nalisa Mumbone, Richard Musupali Sitali, Samulandela Kennedy Ntelamo, Mutoiwa George Kabuko, Thaddeus Muzamai and Claasen John Kawana.

All of them would have been charged with high treason in Namibia if they had been extradited.

Two of them, Ivan Masole Kakena and Richard Musupali Sitali, would also have faced a charge of murder, on which it is alleged that they had killed a deserter from the separatist Caprivi Liberation Army, Victor Falali, in the Caprivi Region in late October 1998.

It was Falali's killing which prompted close to a hundred alleged members of the secessionist movement's armed wing, together with their alleged leader, Mishake Muyongo, to leave Namibia near the end of October to seek asylum in Botswana.

The 13 were claimed to have been among those people who tried to take up refuge in Botswana and who, on August 2 1999, also took part - either directly or indirectly - in suspected separatists' armed attacks at Katima Mulilo.

The extradition process against them had been ongoing since August 2000.

Source: The namibian News Paper

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