News and Information

PG's office raps NSHR over the knuckles
February 21, 2006


THE National Society for Human Rights may be flirting with the risk of committing contempt of court through media statements that it has been issuing about the main Caprivi high treason trial, the Office of the Prosecutor General warned last week.

Two press releases that the NSHR issued earlier this month and at the end of last month "might constitute criminal contempt of court," the PG's Office commented in a media release that it issued on Wednesday.

Instead of going public with the information relating to the trial that it has been claiming to possess, the NSHR should rather forward it to lawyers involved in the trial so that it could be aired in court and properly tested and evaluated, the Prosecutor General's Office stated.In a press statement that it issued on January 30, the human rights organisation claimed that it had received a complaint from a traditional headman in the Caprivi Region who reported that he had faced intimidation and threats that he would be tortured in an attempt to force him to testify in the trial.

In a second media statement that the NSHR issued on February 6, it claimed that another witness, who actually did testify in the trial, had earlier approached the organisation to complain that he had been tortured by Police officers investigating the case and was being forced to give false testimony.

That witness denied such claims when he was asked about it during his testimony before Judge Elton Hoff.

The headman, it also turned out, had been listed as a possible State witness in the trial, but after the prosecution had consulted with him late last year and found him to be disavowing most of the witness statement that the Police had taken from him, it was decided not to ask him to testify for the State during the trial.

The leader of the Police's high treason investigation team, Deputy Commissioner Abraham Maasdorp, also denied that the headman had been intimidated or forced to testify, and claimed that in fact State witnesses were facing intimidation from people who did not want them to testify in the trial.While Namibia's Constitution guarantees the right to freedom of speech and expression, that right must still be exercised subject to the country's laws, and may in terms of the Constitution be reasonably restricted in the interests of a number of things, including in relation to contempt of court, the PG's Office stated in this week's press release.

"Publishing information or comment concerning a pending (sub judice) court case, which has the tendency to influence or prejudice the outcome of the proceedings or to interfere with the administration of justice in that proceeding, constitutes contempt of court," the PG's press statement reads.

It continues: "A case is pending from the moment of its commencement until it has been finally disposed of in the judicial process.

In this regard only a reasonable exercise of one's right to freedom of speech and expression, done in a manner that does not undermine the very important tenets of our constitutional order of upholding the rule of law, would therefore be protected speech.

"The whole concept of a fair trial presupposes a trial in which the court decides on issues before it on the basis of the evidence placed before it in an admissible way, and not on the basis of statements or opinions of the media or individuals who issue press releases for whatever reason," it continued.

"If anyone has information that he or she believes might affect the outcome of a pending trial, he or she should rather provide such information to the legal representatives of the accused who can make use of it in a legal manner and in court.

Then its merits or demerits can be properly evaluated by the court itself.

Then, and only then, will such person have, and promote, respect for the rule of law and independence of the judiciary."

Its statement should not be seen as an attempt to silence the NSHR or anyone else and to threaten criminal prosecution, the PG's Office added, and then nevertheless concluded with a thinly veiled threat that criminal prosecutions could indeed happen if public statements about the trial continue to be made.

The statement, the PG's Office declared, should rather be seen as "an attempt to educate and to point out that a prosecution for contempt of court, should it become necessary, should in itself be seen and understood as another method of promoting respect for the rule of law and the independence of the judiciary."


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