News and Information

November 8, 2005
Posted by: nshr on Nov 08, 2005 - 11:30 AM
Press Releases November 8 2005

Eight of the first 13 alleged Caprivi secessionists claiming to have been abducted from Botswana and Zambia and unlawfully hauled before the High Court of Namibia to face multiple charges of high treason have requested Namibia's National Society for Human Rights (NSHR) for assistance in lodging a complaint under one of the several international and regional human rights treaties applicable in the country. The 13 are part of over 130 persons held on numerous charges of high treason following the armed Caprivi Liberation
Army (CLA) attack in Namibia's disputed Caprivi Region on August 2 1999.

The request by Osbert Mwenyi LIKANYI, Richard Libano MISUHA, Charles Mafenyeho MUSHAKWA, Moses Limbo MUSHWENA, Oscar Muyuka PUTEHO, Oscar Nyambe PUTEHO, Richard John SAMATI and Freddy Maemelo ZIEZO has been granted.

On February 23 2004 Caprivi high treason trial Judge Elton Hoff ordered all the 13 suspects released after he ruled that they were "irregularly before the court". Hence, the High Court lacked jurisdiction to try them. However, shortly after their release the 13 were re-arrested and subsequently indicted on the same charges. They have been in police custody since.

In addition, the Government of Namibia (GoN) appealed the High Court ruling and on July 21 2004 the Supreme Court, Namibia's highest judicial authority, quashed Judge Hoff's decision in a highly contentious split verdict. While three of the five Supreme Court judges nixed Hoff's ruling, two others
agreed with Justice Hoff's decision. The two 'dissenting' judges include Acting Chief Justice Johan Strydom. Judge Strydom is celebrated as one of
the most tested judicial officers in the country.

In terms of Article 81 of the Namibian Constitution the decisions of the Supreme Court are "binding on all other courts of Namibia and all persons in Namibia". Given the fact that the Supreme Court has ruled against the 13 suspects, it is obvious that the aforementioned 8 have exhausted all possible domestic remedies.

"Several international and regional human rights treaties applicable in Namibia allow individuals claiming that their rights under those treaties
have been violated and who have exhausted all domestic remedies to submit written complaints to that effect. Virtually all the high treason suspects
have been subjected to torture, prolonged detention without trial and have initially been denied legal representation", NSHR executive Director Phil ya
Nangoloh said this morning.

Exceptions to exhaustion of domestic remedies could be made on the grounds of unreasonable delay in a trial process and or because of an ineffective
nature of bringing a case before the Court. The July 21 2004 Supreme Court verdict, which provides a road map for any future rulings, would also make
any other pending cases on the legality of the Court to try suspects who had been forcibly repatriated open to lodging a complaint under international human rights treaties.

In a parallel Caprivi high treason trial, Acting Judge John Manyarara on October 25 2005 ruled that another group of 11 secessionism suspects who
were also forcibly repatriated from Botswana during 2002 had been properly and lawfully brought before the High Court. The group charged that they had
been granted political asylum in Botswana. However, the Botswana authorities unlawfully deprived them of their liberty and subsequently handed them over
to Namibian authorities in violation of international law. Hence, due the circumstances under which they were repatriated to Namibia, the group also
challenged the High Court's jurisdiction to try them.

Treaties such as the African Charter on Human and Peoples Rights, the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) contain complaint mechanisms under which individuals may
submit petitions to the treaty supervisory bodies.

"Namibia, Botswana and Zambia have all ratified those treaties. In terms of CAT these States Parties are under obligation not to return any detainees to
any States where there are substantial grounds for believing that the detainees would face torture and or similar degrading treatment. The substantive obligations set out in Articles 1 to 16 of CAT impose a series of measures aimed at ensuring that acts of torture are appropriately investigated and the perpetrators promptly prosecuted. Yet, in the case of
all the over 130 alleged Caprivi secessionists, none of these measures have been complied with, whatsoever, by Namibia, Zambia or Botswana", ya Nangoloh
pointed out.

There are several reasons to believe that the Botswana and Zambian authorities have conspired with GoN in a 'joint criminal enterprise' in regard to the abduction of the 13 suspects. There were widespread and persistent international media reports that Namibian security forces have perpetrated gross violations of human rights in the aftermath of the August 2 1999 armed CLA attack. However, CAT makes it clear that "no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture." Hence, reasonable and substantial grounds existed for Botswana and Zambian authorities to believe that the forced repatriation to Namibia of the 13 would result in the detainees being subjected to torture or summary execution. Nonetheless, the forced
repatriation went ahead.

Moreover, in 2002 Botswana's Highest Court rejected GoN's request to have a separate group of 13 alleged Caprivi secessionists extradited to on grounds that they would face politically motivated trial. Nonetheless, on December 13 2003 the Botswana Government forcibly returned yet another group of 8
Caprivi refugees to Namibia. After handover to Namibian authorities 7 of their members were subsequently arrested and also indicted on high treason charges.

Furthermore, since early this year at least 30 high treason trialists have lost their GoN-sponsored legal representation after they insisted that they wanted to challenge the Namibian High Court's locus standi to try them. They argue that the High Court has no jurisdiction over them because they regard themselves as Caprivians, and not Namibian citizens, and that the Caprivi Region has never legally been part of Namibia.

"On several occasions in the past, we have stated and we repeat now our contention that the majority of the alleged secessionists are classic political prisoners, having been arrested, indicted and tortured in
connection with the August 2 1999 Caprivi solely based on their actual or perceived non-violent support for the Opposition United Democratic Party (UDP) or merely because of them being members of the Mafwe tribe of which exiled UDP President Mishake Muyongo and Mafwe Chief Boniface Bebi Mamili are senior traditional leaders. Hence, we also repeat our call of February 21 2005 upon GoN to opt for a comprehensive negotiated settlement of the
Caprivi dispute", NSHR spokesperson Dorkas Phillemon said.

Note: In case of further enquiries please call: Phil ya Nangoloh or Dorkas
Phillemon at Tel: +264 61 236 183 or +264 61 253 447 or
or or


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