A burden lifts with Caprivi high treason trial’s end

A CASE that has presented the Namibian justice system with an unprecedented array of challenges over the course of more than 16 years finally came to a conclusion this year – leaving a legacy of lessons to be learnt.

With the sentencing of the 30 men convicted of high treason, nine counts of murder and 90 charges of attempted murder in the main Caprivi high treason trial, the longest trial in Namibia’s history has come to an end – although appeals against the men’s convictions could still keep judges occupied with the matter for years to come. The lessons to be learnt from the mistakes that were made with this headache of a case, should also endure.

From the time that the first arrests of people accused of having tried to secede the then Caprivi region from Namibia were made in early August 1999, this case without equal in Namibian legal history has tested Namibia’s adherence to its constitutional values, such as respect for human rights, the prohibition of torture, and the right to a fair trial.

Human rights abuses – including, primarily, assaults and torture perpetrated by members of the Namibian Police – marred the Namibian security forces’ crackdown in the Zambezi region after separatist attacks at Katima Mulilo on 2 August 1999. Those abuses would echo on through the trial that followed.

The prosecution had to pay the price for the police’s excesses when its case was weakened because testimony obtained as a result of rights violations was ruled inadmissible by Judge Elton Hoff. With the sentencing Judge Hoff also made a point of stating his disapproval of the widespread use of violence against suspects and potential state witnesses alike, stating that those events were irreconcilable with the fundamental rights and freedoms protected in the Constitution.

With the benefit of hindsight, the eventual decision to indict 122 accused persons in the High Court on a massive 278 charges was also a mistake. The trial, which eventually took more than 12 years to be concluded, would not have taken so long if fewer accused had been prosecuted on a more concentrated indictment, or the accused had been grouped into smaller, separate trials.

The trial took a heavy toll on the accused. Twenty-two of them died in jail before the end of the trial; most of the accused spent more than a decade in jail.

Hindsight has also proven that the government’s decision to resist granting state-funded legal aid to the accused – a matter that went up to the Supreme Court, where five judges unanimously ruled against the government in June 2002 – was a mistake that unnecessarily delayed the start of the trial.

Once the trial started with a jurisdiction challenge near the end of October 2003, Judge Hoff rose to the occasion. With commendable calmness, patience and perseverance he shouldered a heavy burden and, 12 years later, steered an unwieldy, mammoth case to its end.

By then, though, the very magnitude and length of the trial had turned it into a burden for Namibia’s legal system – a matter that left a blot on the system despite the efforts of those involved to have a fair trial for both the state and the accused.

While it is said that hindsight is an exact science, it should be hoped that the wisdom in hindsight gained from this trial will not be wasted.

The treason trial was the big one that was finalised this year. Some notable other cases which were dealt with in the High Court and Supreme Court this year.

In the Oshakati High Court, Judge Herman January sentences Joseph Haufiku (46) to 36 years’ imprisonment on charges of murder and breaching a domestic violence protection order. Haufiku hacked his wife, Tangi Martin (35), to death with a panga at Epuku, a village in the Oshakati district, on 20 September 2012.

Having been convicted on two counts of murder and other charges, the 27-year-old Jakobus Jossop is sentenced in the Windhoek High Court to an effective 60 years of imprisonment. Judge Nate Ndauendapo found him guilty of the murder of two men, Isak Shikongo (32) and Johannes Matroos (41), near Karasburg on 23 January 2009. Shikongo was stabbed to death with a knife, while Jossop used sheep shears to also stab Matroos to death.

Former Keetmanshoop resident Quinton Pieters (34) receives a record sentence of an effective 110 years’ imprisonment from Judge Naomi Shivute in the Windhoek High Court. Judge Shivute convicted Pieters, already serving a 53-year jail term on charges of murder, rape and robbery with aggravating circumstances, of three counts of rape, a charge of attempted rape, and two other counts in connection with incidents in which a woman was raped at Keetmanshoop in June 2005, an attempt was made to rape an 11-year-old girl in August 2004, and a 13-year-old girl and a 10-year-old boy were raped at Keetmanshoop in October 2007.

The Supreme Court rules in a landmark judgement that a patient in a life-threatening medical condition retains the right to refuse treatment that could save her life. Chief Justice Peter Shivute finds that a woman had the right to refuse a blood transfusion on religious grounds even if the refusal put her life in danger and her three children at risk of losing their mother. In a dissenting judgement, Judge of Appeal Sylvester Mainga reasons that a patient’s right to decide what kind of medical treatment she would accept, may be limited where it competed with other rights, such as children’s rights to be cared for by their parents.

A security company that employed a guard who shot a young teacher, Johan Gabrielsen, in Windhoek in March 2004, leaving him paralysed, can be held liable for the actions of its former employee, the Supreme Court rules. Judge of Appeal Dave Smuts dismisses Crown Security’s appeal against a High Court decision in which the company was ordered to pay Gabrielsen N$8,6 million to compensate him for the damages he suffered as a result of the shooting.

Judge Herman January sentences the 30-year-old Fanny Mahamba, who has admitted that he abducted, raped and murdered a two-year-old girl at Katima Mulilo on 13 February 2014, in the Oshakati High Court to an effective prison term of 75 years. The crimes that Mahamba committed – in a state of drunkenness, he claimed – were horrific and gruesome, Judge January says.

Windhoek resident Engelbert Oxurub (49), who has been convicted of having carried out a series of sexual attacks on women in the vicinity of Windhoek’s state hospitals from June 2008 to April 2009, is sentenced by Acting Judge Collins Parker in the Windhoek High Court to an effective 82 years’ imprisonment on five counts of rape, a charge of assault with intent to do grievous bodily harm, and a charge of robbery.

An inquest into the death of the late Frieda Ndatipo (26), who was shot during a clash between police officers and protesting ‘children of the liberation struggle’ at the Swapo Party head office in Windhoek on 27 August 2014, ends inconclusively in the Windhoek High Court, with Judge Christie Liebenberg finding that Ndatipo’s death had been brought about by an unlawful act by an unknown person.

Three men convicted of having carried out a deadly armed robbery in Windhoek’s Northern Industrial Area on 2 November 2009 leave the Windhoek High Court with lengthy prison terms. Judge Naomi Shivute sentences Willem Kawulefelwa Valombola (44) to an affective jail term of 60 years and nine months, Fillipus Shishiveni Nomongula (38) to 57 years and nine months’ imprisonment, and Toivo Kashipolo (36) to a jail term of 55 years and nine months in connection with the robbery in which security company owner Andries de Jager (68) was killed.

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