CANU Describes Caprivi Strip Jurisdictional laws

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It is noticed with great concern through the media that, some of the amendments to the Namibian Constitution are aimed at incorporating Caprivi into Namibia unprocedurally and unlawfully.

Thus, Caprivi African National Union (CANU) Party makes it clear within the ambit of the powers and authority given to it by the United Nations after having heard CANU Party on 11 Septemeber 2012, on the issues officially raised pertaining to the non-implementation of the merger agreement between itself and SWAPO; as well as on the self-determination of the Caprivi people and the status of the Caprivi Strip; and on the CANU’s request that the United Nations be the mediator in these issues. It is pertinent also to mention here that in our discussions, though not included anywhere in its official reply because of perharps forgetfulness, the UN acknowledged the fact that indeed a referendum was supposed to be conducted in the Caprivi Strip in 1989 to enable the people of Caprivi to determine their destiny. Having investigated the facts presented by CANU Party, taking into account the facts acknowledged and raised in our discussions, the United Nations in conclusion, authoritatively and in recognition of CANU Party replied in paragraph 3 of its official letter dated 21 August 2013 that, we quote:

“Any further concerns pertaining to these two issues going forward should be raised by CANU through the relevant authorities and structures in the Country”. A proper reading of this sentence entails that, the United Nations having heard CANU Party and having read all documents filed of record taking into account acknowledgments in our discussions, as well as having finalised the investigations on the issues raised by CANU Party, do hereby recognize, permit and authorize CANU Party to raise any further concerns pertaining to the issues of (a) the non-implementation of the merger agreement between itself and SWAPO, and (b) the self-determination of the Caprivi people and the status of the Caprivi Strip through the relevant structures and authorities in the country on behalf of the Caprivi people.

This conclusion should be respected and honoured by the Namibian Government moreso when it is a member state of the said Body which jointly with the said body has a responsibility of maintaining peace and respect for human dignity. Hence, nothing pertaining to the Caprivi issues should be discussed in the absence of the Caprivi African National Union (CANU) Party. On this note we reiterate therefore that CANU Party be consulted and only after such consultations with CANU Party may any change pertaining to the Caprivi Strip be effected. This consultation should not be interpreted to mean that CANU Party has compromised its call for a referendum in the Caprivi Strip. We stand by that and we do not move from that call for the following reasons:

In the Pleadings, Oral Arguments, Documents before the International Court of Justice, in the South West Africa Cases, in which Liberia and Ethopia, took South Africa to that Court in 1966, because aparently she (South Africa) was not entitled to separate Caprivi Zipfel from Namibia, that Court said amongst others on page 105 that: “ the period 1929 to 1939, the area has been administered by the Administrator of South West Africa as a representative of theSouth African Government”. This means South West Africa (Namibia) had during that period as herein mentioned administered Caprivi Zipfel as a South African agent with no title to acquire it as its property. Hence it cannot and may not have any right to claim Caprivi Zipfel being its portion.

It is true that Caprivi Strip became a German sphere of influence by a right of free access to the Zambezi granted to it on 1 July 1890, but unfortunately even so Germany itself referred to the Strip as Germany Barotseland or Germany Zambezi Region or Deustche Bechaunaland or Sambesi Korridor and not Germany South West Africa. Hence Namibia cannot and may not claim Caprivi to be its portion. And this proves that Germany never acquired Caprivi as part of its colony hence unnaturally linked to Namibia. If A allows B a free way in the stream lying along A’s village, with no right of acquisition over A’s village, then B only has a licence or a public right of way to pass through A’s stream and B may erect a post somewhere to guard her public right of way and or her licence but will and shall not claim A’s village to be his or hers. This was the situation with Germany in the Caprivi Zipfel and this is the reason German even after 1 July 1890 named it Caprivi Zipfel and not GSWA.

On 1 August 1939, on the request of South West Africa (now Namibia), that it can nomore continue to administer Caprivi Zipfel because of its geographical situation and other conditions which till up to date such conditions have not changed, Caprivi Zipfel was by the South Africa Eastern Caprivi Zipfel Administration Proclamation 147 of 1939 transferred back to South Africa. If Caprivi could have been part of Namibia, one doubts whether Namibia could have given it to South Africa because this was evident in the case of Walvis Bay where it vehemently and consistently continued to claim it. But because Caprivi was not a portion or part of Namibia, it (Namibia) has given it back to South Africa.

Thus,From 1 August 1939to the present when Namibia then SWA ended its administrative agency in the Eastern Caprivi Zipfel, no administrative agency in the Eastern Caprivi Zipfel was delegated to Namibia then SWA by South Africa or the people of Caprivi unless the contrary is proven. The current appendage to Namibia is unnatural. We are forced to be Namibians and this is against International law and even the law of contract. Such a forced appendage as it exists currently is unenforceable internationally or even with domestic laws. For example, once you kidnap a person and make him part of your family member against his or her will it is unlawful and you may be charged with kidnapping with a sentence of imprisonment to 20 years or so. In this case therefore the South African Government is the legitimate administering power of the Caprivi Zipfel whereas the Namibian Government is the kidnapper.

It is recorded somewhere else in the documents in CANU Party’s position that South Africa had at one stage expressed concern that, it was not proper for the Caprivi Strip and its inhabitants to be at the mercy of the white governments, being thrown hither and thither, without the governments making serious Plans for their development. ……..A referendum could have decided whether a Union of the Eastern Caprivi with Northern Rhodesia (now Zambia) or the Bechaunaland Protectorate(Botswana) was desired rather than continuing this unnatural appendage linked to the rest of Namibia Territory. This statement as expressed by the colonizers also proves that the Caprivi appendage linkage to Namibia is unnatural. They knew that it was unnatural but they kept on forcing Caprivians to be part of Namibia.

Both the South West Africa Constitution Act 39 of 1968 and the South West Africa Legislative Executive Authority Establsihment Proclamation 1985, (No. R101 of 1985) precluded the Administrator –General of South West Africa, the Legislative Assembly of the Territory of South -West Africa and the National Assembly of the Transitional Government of the Territory of South -West Africa from inter alia amending or repealing section 38 (5) of the South West Africa Constitution Act 39 of 1968, which inter alia read:“No Act of Parliament of the Republic of South Africa and no ordinance of the Legislative Assembly of the then Territory of South -West Africa passed on or after the first day of November 1951 would apply in that part of the said Territory that was demarcated and known as the Eastern Caprivi Zipfel, unless it was expressly declared so to apply”. Now the question is, has the people of Caprivi Zipfel so declared and if they did in which way did they do so? We have seen the death of South Africa over Walvis Bay and accordingly Namibia has a resurrection certificate of Walvis Bay when it was resurrected from the grave of South Africa. But when was Caprivi Zipfel resurrected into Namibia? Who witnessed such a resurrection? And who were the negotiators of such a resurection?

Further the said laws as cited above indicates and or informs us that we are separate from Namibia particulary when historically and geographically and culturally we differ most from Namibia’s. Secondly particulary that even when we were administered by it (Namibia) it did so as an agent for South Africa. Even moreso during the time of the Germans Caprivi Zipfel was not referred to as German South –West Africa. It does not mean because Germany had at one stage a sphere of influence over Caprivi, and one stage had been the Colonizer of SWA now Namibia, automatically Caprivi Zipfel should be made part or portion of Namibia. To do so is selling the birth right and sovereinty of the Caprivi Zipfel and its inhabitants. CANU Party rejects such with all contempt it deserves.

Further, as if it was not enough, the South-West Africa Amendment Act 55 of 1951,section 4 sub-sections (1), (2) , (3) and (4) states: “ the High Court of South –West Africa shall as from the date referred to in sub-section (1) of section two, cease to have jurisdiction in the said Eastern Caprivi Zipfel and as from that date the Transvaal Provincial Division of the Supreme Court of South Africa or any circuit court referred to in section eight of the General Amendment Act 54 of 1949 shall exercise within the said Eastern Caprivi Zipfel the same jurisdiction as it has in the province of the Transvaal. For the purposes of section eight of the General Law Amendment Act 1949, the area of the said Eastern Caprivi Zipfel may be constituted as a separate circuit district or may be included in any other circuit district of the Transvaal: Provided that notwithstanding anything in the said section shall be held in the said Eastern Caprivi Zipfel only as and when the Judge-President of the Transvaal Provincial Division of the Supreme Court of South Africa determines that it is necessary for such a court to be heldtherein. Any reference in any law applicable to the said Eastern Caprivi Zipfel to the High Court of South –West Africa shall be deemedto be a reference to the Transvaal Provincial Division or a circuit local division of the Supreme Court of South Africa having jurisdiction in the said Eastern Caprivi Zipfel by virtue of the provisions of sub-section (1). The Attorney-General appointed for the province of the Transvaal shall as from the date referred to in sub-section (1) and subject to the control and directions of the Minister of Justice, exercise in relation to the said Eastern Caprivi Zipfel all the powers vested in the Attorney-General of the Territory of South –West Africa in relation to the said Eastern Caprivi Zipfel.

Now therefore in terms of section 11 (2) (b) of the Interpretation of Laws No. 37 of 1920, in which it is inter alia stated that, “ where a law repeals any other law, then, unless the contrary intention appears, the repeal shall not affect the previous operation of any law so repealed or anything duly done or suffered under the law so repealed”, the above cited laws are still in operation in that area of the said Eastern Caprivi Zipfel and accordingly the Namibian Government has no power to make laws for the Eastern Caprivi Zipfel. Equally Namibia has no majestus in the Eastern Caprivi Zipfel. Moreso the Application of Laws to the Eastern Caprivi Zipfel of 1999 is equally and accordingly not applicable in the Eastern Caprivi Zipfel. In actual fact it is a nullity. To put it sunctily, the Territory over which a Mandate was conferred upon His Britanic Majestic for and on behalf of the Government of the Union of South Africa comprised the Territory which formerly constituted the German Protectorate of South-West Africa, and not Caprivi Zipfel. According to the Table of Contents, such territories that form South- West Africa is the area between Cape Frio and Orange River and the territory between Ovamboland and Hereroland and Caprivi Strip is not part.

Therefore in the end, we call upon:

The administering power    South Africa to grant the people of the Caprivi Zipfel the self-determination, including independence as soon as possible;

The administering power South Africa to take measures to ensure that Namibia withdraws itself peacefully in whole and in sundry from the Caprivi Zipfel;

The administering power South Africa should ensure that any portion of the Caprivi Zipfel she had previously misappropriated to Namibia is returned;

The administering power South Africa should from its budget facilitate the participation of CANU Party and Other stake holders in the relevant meetings and conferences of the specialized agencies and organizations of the UN systems, in accordance with relevant UN resolutions and decisions, including decisions and resolutions of the General Assembly and the Special Committee so that CANU Party and those Other relevant stake holders may benefit from the related activities of these agencies.

The administering power should ensure that infrastructures such as the High Court and Supreme Court are built in the Caprivi Zipfel as soon as possible as these structures are not provided for in the Caprivi Zipfel. She should also ensure that all infrastructures required in the Caprivi Zipfel are provided for as soon as possible. A few of such are a National bank, a National University, a National Technikon and a National airport.

The administering power jointly with the United Nations, United Kingdom should see to it that no National AssemblyElections and Presidential Elections are held in the Caprivi Zipfel in November 2014 unless and until after a referendum supervised by the United Nations is conducted in the Eastern Caprivi Zipfel with immediate effect.

The United Nations and its agencies to accord priority to the question of the Caprivi Zipfel by ensuring that our call as per above is complied with by the Namibian Government and that the administering power is also complying with the above call, and that the United Nations provide assistance to the people of the Caprivi Strip, and to CANU.

The United Nations jointly with Britain and South Africa should ensure that what the International Court of Justice said in conclusion in the South –West Africa case, inter alia, in the provisions of page 117, paragraph 34, that, indeed practical considerations, and the interests of the Caprivi Zipfel people, may dictate separation of administration is complied with by jointly South Africa and Namibia as a matter of urgency. The United Nations must further ensure that what the said Court said on page 118 paragraph 37, inter alia that, such administrative differences as do exist at present can in no way interfere with the political and general advancement of the Caprivi people towards possible self-determination, and do not frustrate opportunities for progress in that direction of self-setermination is complied with, because this is more than clear that the international community recognizes the inherent right of the Caprivi people towards self-determination, including independence because we are now matured enough to manage and control our own affairs.

 

Take notice further that even the UN map on Namibia contains a disclaimer that: “the delineation of the boundaries between Namibia and neighbouring countries and the names shown on this map do not imply official endorsement or acceptance by the United Nations as they are to be determined by the independent Namibia”. It is clear therefore that in terms of this authoritative statement Caprivi has never been incorporated into Namibia by the international community. The international community says this was subject to discussions after independence. How then if this statement contains a disclaimer did Namibia inherit Caprivi Zipfel without discussing with us. One important thing is that it does not mean because we attained independence in association with Namibians we have given up the sovereinty of Caprivi Strip.

 

We therefore in conclusion reiterate our call to all the Caprivians that “NO REFERENDUM, NO VOTE” because when you vote you are empowering the Namibia Government to continue to rule us against our will and to continue to rule us unlawful and illegal. After all SWAPO has through its PLAN wing army commanders made it clear already around September 1985 in Lumbango at a general meeting that:

 

“all Caprivians are CANU members, except for one girl”.

 

Why then should you vote for it or any other Namibian Party or any Party registrered with the Namibian Government if CANU your Party is still calling for a referendum for your total freedom.

 

IN GOD WE TRUST

LYA ZWA TWAAAAH!

CANU PARTY EXECUTIVE

SIGNED: PARTY PRESIDENT- ALEX K.M.KAMWI

P.O.BOX 2002 , Ngweze, KatimaMulilo, Caprivi Zipfel: email: akamwi@gmail.com

 


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