By Risco Lumamezi
A judgement ruling that will pronounce whether the eight (8) Caprivian men accused in the second Caprivi high treason trial have succeeded to be acquitted , has been postponed to March 24, 2021.
Defence lawyer Ms.Ilse Angenbach told Caprivi Vision that legal arguments on the jurisdiction challenge were submitted on November 2, to the High Court Judge Petrus Unengu to consider the acquittals of her clients.
The long trial case which drags on since 2003 , was closed in the Windhoek High Court on September 29, 2020 by Judge Unengu who vehemently refused to grant the postponement of prosecution in order to hear state witnesses from Botswana to come and testify.
Ms. Angenbach who is hoping by God’s grace that the postponement of the ruling slated on March 24, 2021 will rule in favour of her clients to be discharged.
Section 174 of the Criminal Procedure Act of 1977 which reads that when the state close the case, the defence lawyers have a chance to forward application of discharge for persons not found guilty.
Article 25(4) of the Namibian constitution guarantee the power to the court to award monetary compensation in respect of any damage suffered by the aggrieved persons in consequence of such unlawful denial or violation of their fundamental rights and freedoms, where it considers such an award to be appropriate in circumstances of particular cases.
In 2013, the Supreme Court of Namibia set aside all convictions and sentences imposed on each of the 10 accused suspects of the Caprivi High Treason.
In its appeal Judgement, which was sent to Caprivi Vision and delivered in court on July 15, 2013 Chief Justice Peter Shivute sent back the matter to the High Court for retrial before another Judge on the original charge sheet.
In July 2007, Late High Court Judge John Manyarara sentenced Mr.Progress Kenyoka Munuma, Mr.Shine Samulandela Samulandela, Mr.Makendano Manuel Manepelo, Mr.Alex Sinjabata Mushakwa, Mr.Diamond Samunzala Salufu,Mr.Frederick Ntambilwa Isaka, Mr.Hoster Simasiku Ntombo, Mr.Boster Mubuyeata Samuele, Mr.John Mazila Tembwe and Mr.Alex Mafwila Liswani to 32 years imprisonment and after he failed to recuse himself.
The Registrar of the High Court was ordered to re-enrol the matter before August 1,2013.
They were part of a group of twelve people who were deported by the authorities of Botswana to Namibia during September and December 2002. They were arrested by the Namibian Police when they set their foot in Namibia.
They were arraigned before a judge of the High Court and charged with High Treason, Sedition, Public Violence and three charges related to offences committed under the Arms and Ammunition Act, Act No1 of 1996 in contravention of section 29 (1)(a)(e) and (b) respectively.
After their convictions they appealed to the Supreme Court with the Namibian Human Rights Lawyer Mr. Norman Tjombe on the grounds that the High Court had been biased against them and that the judge should have recused himself from the matter.
The accused persons told the late Judge Manyarara, that they considered themselves to be Caprivians and not Namibians.
They said him (Judge Manyarara) that they did not acknowledge the jurisdiction of a Namibian court which he ruled that the High Court had jurisdiction to hear the matter.
They made their brief appearance in the High Court of Namibia again on July 18, and their case was postponed to September 19.
More than 60 witnesses has so far testified, and two of the accused were convicted of the crime of High Treason.
In 2007, two accused persons, Mr. Vincent Siliye and Mr.Vincent Sinasi they were found not guilty, the State conceded that it did not prove their complicity in the crime.
It started off by appellant No. 10 refusing to accept the legal representative appointed for him by the Legal Aid Directorate because this person was in the employ of the State. The Court ordered that a private Legal Practitioner be appointed for the appellant. This was done and all the accused persons were then represented by Mr. Grobler and Mr Ndauendapo.
“The next step was a challenge to the jurisdiction of the Court in terms of s 106(3) of the Criminal Procedure Act, Act No. 51 of 1977.”
Special pleas were entered by all the accused persons with the exception of accused No. 8, i.e. appellant No 6. During the proceedings concerning the jurisdictional challenge the appellants, with the exception of accused No. 11 (appellant No. 9), gave evidence in which they stated that they sought, and were granted, political asylum in Botswana.
“Most of them were accommodated in a refugee camp at Dukwi. They also testified that, at the time, it had been explained to them that it would be a breach of the conditions of their status as political refugees should they ever return to Namibia. They stated that since their entry into Botswana they never returned to Namibia.” Said the statement.
They further claimed that they had been abducted from Botswana and that the authorities in Namibia and Botswana connived to achieve their return to Namibia.
The State also presented evidence and Cst. Kambungo stated that they, the State, had available evidence that the appellants did return to Namibia between the dates when they had left Namibia and were deported.
The Court dismissed the jurisdiction plea of the appellants and because of certain findings of the learned Judge in his judgment dismissing the plea of jurisdiction, all the appellants then applied for his recusal.
This application was refused and the accused’s application for leave to appeal against the Judge’s refusal to recuse himself, also met a similar fate.
“I am therefore of the opinion that the refusal by the Judge to recuse himself render the continuing of the proceedings a nullity and that the appeal must therefore succeed.” Said Chief Justice Shivute.
He however further explained that, “I have also considered the duration of the appellants’ detention as trial-awaiting suspects and as accused persons during the trial itself – as well as the period of their incarceration after the conviction to be set aside by this judgment – in assessing the most appropriate course to follow. I have no doubt that the limitation of their freedom for that period has caused – and is still causing – them great hardship.
This consideration raises the question whether it would not be more appropriate to simply allow the appeal and leave it to the Prosecutor-General to decide whether they (or any one or more of them) should be prosecuted again and, if so, on which charges. In that event, the appellants would be entitled to their immediate release from custody.”