News and Information

Pleas by default start treason trial
August 24, 2004


FINALLY, after five years of postponements upon adjournments upon delays, the main trial of the 120 men accused in the Caprivi high treason case in the High Court at Grootfontein has begun.

The hour of 12h20 marked the proper start of the trial of the 120 yesterday.

That was the time at which Judge Elton Hoff brought down the curtain on the latest preliminary point in the treason case that was raised before him, and entered pleas of not guilty on behalf of 13 of the accused who had refused to plead to the 278 charges faced by them and their 107 co-accused.

The 13 are the suspects who raised a challenge to the jurisdiction of the High Court in October last year, arguing that because they had been unlawfully brought to Namibia from Botswana or Zambia, the High Court had to decline to exercise its power to try them.

Yesterday it was six months since their special pleas over the court's jurisdiction were upheld by Judge Hoff, and a little over a month since that ruling was set aside in a split decision by the Supreme Court.

Still the 13 do not want to let the matter rest there, it was indicated to Judge Hoff.

They now want to have those Supreme Court judgements set aside.

In their view the Supreme Court bench that heard the State appeal was not properly constituted, the Judge was informed at the start of proceedings yesterday.

The 13 were present in court, having refused to attend the proceedings when the case was last in court two weeks ago.

First addressing the court on their behalf, defence counsel Patrick Kauta explained to the Judge that the defence lawyers now held instructions from the 13 to apply to the Supreme Court to set aside the judgements handed down on July... "We will contend that the Supreme Court was not duly constituted in terms of Section 5 of the Supreme Court Act, Act 15 0f 1990 read with the Namibian Constitution at the time of hearing and determination of the appeal," Kauta read from a letter in which the prosecution was informed of the 13's latest plans late on Friday afternoon.

That section of the Supreme Court Act states:"The Supreme Court shall consist of the Chief Justice and such additional judges appointed in a permanent capacity as determined in accordance with the provisions of Article 79 (1) of the Namibian Constitution."

That part of the Constitution in turn states that the Supreme Court shall consist of a Chief Justice "and such additional Judges as the President, acting on the recommendation of the Judicial Service Commission, may determine".

It is understood that the argument to be raised by the 13 would be that neither the Supreme Court Act nor the Constitution provided for an Acting Chief Justice and Acting Judges of Appeal to constitute the Supreme Court, while the five-Judge bench that sat on the appeal against their discharge from the treason case consisted of an Acting Chief Justice and four Acting Judges of Appeal.

Explained Jonathan Samukange, another member of the team of nine defence lawyers:"As far as they are concerned, there is only one judgement, and that is your judgement.

The judgement of the Supreme Court is in our view merely an opinion.

It was not properly constituted."

Samukange also told the court that senior counsel from South Africa was already working on such an application by the 13, and remarked that the fact that such an SC had taken on the case was already an indication that they could be considered to have reasonable prospects of success.

On hearing that statement, it appeared as if the team of three prosecutors, joined at their desk by Attorney General Pendukeni Iivula-Ithana, was about to collapse with indignant bemusement.

At that stage Judge Hoff had already cut to a logical conundrum that would be at the heart of such an application by the... They would approach the very Supreme Court whose composition they wanted to challenge as unlawful, to make a finding declaring as much to be the case, he noted.

Kauta conceded that it was "a peculiar, difficult legal position that I have no answer to".

Samukange told the court that, until they had exhausted their options, the 13 were not prepared to plead to the charges against them.

But having heard out the defence lawyers and Deputy Prosecutor General Herman January, Judge Hoff ruled that the issue raised by the 13 was one that was before the Supreme Court, and not the High Court, with the result that he did not have to make a special entry into the record to reflect that the 13 thought the proceedings during their trial had been irregular or not according to law.

He added that because it had also been made clear that the 13 did not want to plead to the charges against them at this stage, he could infer that they refused to give a plea.

As a result, he entered a plea of not guilty.

With the formalities having finally been dealt with, State Advocate Taswald July took prosecution's lectern to give the State's perspective of what the high treason trial would be about.

In keeping with the pattern that the treason case has followed over the past five years, it quickly got bogged down in arguments over practicalities again yesterday afternoon.

With the prosecution's first witness, crime scene investigation Detective Warrant Officer Daniel Mouton ready to start taking the court through maps of the Caprivi Region and Katima Mulilo, where alleged armed separatists staged surprise attacks on August 2 1999, the defence first aired complaints that they had not been properly notified of what evidence was to be given or what photographs, maps and plans were to be used.

These problems were supposed to be sorted out later yesterday, with Mouton scheduled to return to court again today to start testifying.


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