News and Information

Caprivi 13 plan to go on the offensive
August 23, 2004

THE 13 suspects whose discharge from the Caprivi high treason case was overturned by the Supreme Court a month ago now plan to challenge the validity of the court's make-up in an effort to have its judgement declared null and void.

The High Court at Grootfontein is set to be informed today of the 13's latest plan to try and avoid standing trial on a count of high treason and 277 other charges, legal sources connected to the high treason case revealed at the weekend.

Indications were that the defence lawyers would tell Judge Elton Hoff today that they had been instructed by the 13 to bring an application in the Supreme Court to question the composition of the five-Judge bench that had sat on the appeal over their discharge from the treason case.

The defence lawyers will also ask that the trial of the 107 other accused in the case should start in the meantime - a step that appears set to be opposed by the prosecution, which will argue against the separation of the trials of the 13 and their co-accused, it was indicated.

In the ranks of the 13 are some of the alleged main actors in an armed movement that aimed to force the secession of the Caprivi Region, including John Samboma, who is alleged to have been the commander of the separatist movement's armed wing, the Caprivi Liberation Army.

The 13 have already displayed dismay over the Supreme Court's judgement in the State's favour by refusing to appear in the High Court at Grootfontein a fortnight ago - a step that led to a two-week postponement of the case until today.

According to sources connected to the case, their latest attempt to avoid standing trial based on their claims to have been illegally brought from Zambia or Botswana to Namibia to be arrested, charged and prosecuted, is set to entail challenging the constitution of the Supreme Court bench that sat in judgement on their case.

The core of the challenge would be that the court had not been properly constituted as only acting judges - and specifically also an Acting Chief Justice - had been on the bench.

As a result, that bench's judgement was a nullity.

They would base their argument on the fact that the Supreme Court Act contains no reference to an Acting Chief Justice, it appears.

If the challenge succeeds, it could have far-reaching consequences as it could mean that all judgements of the Supreme Court in the year since Acting Chief Justice Johan Strydom has occupied his post in a non-permanent capacity would also have to be considered null and void.

If their challenge goes wider by being directed at the fact that only Acting Judges of Appeal had sat on the bench with Acting Chief Justice Strydom, it could have even more extreme consequences, since it could then have the effect that all judgements of the Supreme Court since Independence could be considered a nullity, since Namibia's highest court has always functioned with Acting Judges of Appeal joining the Chief Justice on the bench.

The court has only had one permanent Judge of Appeal - Judge Pio Teek - since late June last year.

The 13 would however be in somewhat of a Catch-22 situation if they wanted to approach the Supreme Court to have itself declare its own judgement a nullity.

Since there is an Acting Chief Justice in office, they would in effect have to ask a court that they would say does not constitute a proper, legal court, to make an order to the same effect.

The 13 have set their sights not only on the Supreme Court, though, sources also indicated.

They have approached lawyers in Windhoek to explore the possibility of having their case referred to the United Nations' Human Rights Committee, which is a body that is mandated to consider cases under the International Covenant on Civil and Political Rights.

While the Committee has the power to decide that a Supreme Court judgement was contrary to the provisions of the Covenant, it however does not have the power to force a state to conform to its decisions.


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