News and Information

Treason defence lawyers turn on each other
February 20, 2006


BATTLE lines were redrawn in the main Caprivi high treason trial last week, with defence lawyers crossing words with each other instead of against the prosecution as the trial passed the milestone of its 100th day of court proceedings.

For the first time since the start of the trial in August 2004, Judge Elton Hoff was not being asked to settle a courtroom dispute between the defence and the prosecution, but instead between two defence lawyers.

The prosecution team in the trial was relegated to the status of sideline spectators as the most public disagreement yet in the ranks of the team of defence lawyers gave a new dimension to the trial, pitting defence counsel Patrick Kauta and his colleague Jonathan Samukange against each other, rather than against the State as had been the pattern throughout the trial - or until last week at least.

In a ruling that Judge Elton Hoff handed down on Tuesday, he settled the dispute in Samukange's favour by directing that Kauta would not be allowed to require one of the accused represented by Samukange, Bennet Mutuso, to rise while Kauta was cross-questioning the 26th State witness, Hamlet Muzwakwi, so that Muzwakwi could get an opportunity to tell the court whether that was the person that had featured in part of his testimony.

Reasons for the ruling are expected to be handed down today.

While he had mentioned Mutuso in his testimony, Muzwakwi failed to identify him when he was given an opportunity to look through the ranks of the 119 accused persons in court to see if he could spot any of the people that he had mentioned in his evidence.

He had mentioned Mutuso when he told the court that on the morning after alleged armed separatists had attacked Government-related targets at Katima Mulilo on August 2 1999, he saw Mutuso at the house of another of the 119 accused persons, Richwell Manyemo, and that Mutuso appeared to have an AK47 rifle in his possession.

Some eight months after that, on April 29 2000, Mutuso and Manyemo were arrested together with one of his clients, Agry Muamba, who was working as a taxi driver, Kauta told the court.

Muamba was giving them transport as part of his normal duties as a taxi driver, but then the Police discovered an AK47 rifle - a "weapon of war" in Kauta's words - in the boot of his taxi while he was transporting Mutuso and Manyemo.

The State's case against Muamba is that he joined a conspiracy to secede the Caprivi Region after the attack of August 2 1999, and that he had associated himself with the secession by giving assistance to efforts to regroup supporters of a separatist movement in the Caprivi Region with the aim of carrying out a second attack, Kauta told the Judge.

If the firearm in his vehicle is linked, through Muzwakwi's testimony, to the weapon that is claimed to have been seen with Mutuso on the day after the attack, and is also linked to the attack of August 2 1999, then the State will have to prove no further evidence against his client, since on the law as it stands currently, he will be convicted of high treason, Kauta said.

With Muzwakwi not having identified Mutuso in court, Samukange did not cross-examine him, since in his view no link had been proven between the person he had mentioned in his testimony and the person named Bennet Mutuso who is one of the people in the dock before Judge Hoff - but that argument is wrong, Kauta argued.

When Kauta first asked the Judge to permit him to require Mutuso to stand up in court, Samukange objected that it was a cross-examination tactic that was highly prejudicial to his client.

Kauta not only agreed that it would be prejudicial, but took it much further than that.

"I in fact want to go further; that I do not intend it only to be prejudicial, I intend it to be incriminating," he told the Judge on Monday.

"That's the very purpose why I wish to cross-examine like this, I wish to cross-examine it so far that I put the AK47 firmly in the hands of Bennet Mutuso."

In doing so, he explained, he intended to advance his client Muamba's defence.

Kauta was being "purely malicious", and was trying to employ a method of cross-examination that is only tailored "for the purpose of malicious damage to (...) Bennet Mutuso," Samukange told the court.

Just like the prosecution cannot be allowed to ask an accused person in court to stand up so that a witness could confirm whether that was the person that the witness had mentioned in his testimony, Kauta could also not do the same, Samukange argued.

What Kauta was trying to do, he added, was to help his drowning client get hold of Mutuso and drag him down with him while he was going under.

"(A)s my client is concerned that weapon was concealed and he had no knowledge of its existence throughout the ride.

He only got to know about the weapon when the Police said they found it," he stated Mutuso's version on that point to the Judge.

"It was just unfortunate that he jumped into, he was in a wrong place at the wrong time with the wrong person who was carrying a weapon."

The trial continues today, with the State's 30th witness to continue testifying.

The trial marked its hundredth day of proceedings on Thursday last week.


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