Caprivi 13 release bid back to High Court

A PLAN to approach the Supreme Court for a ruling on the legality of the re-arrest and renewed prosecution of 13 Caprivi high treason accused, after they had been discharged from the treason case, has been abandoned.

Legal teams representing Government and the 13 are now set to again return to the High Court in Windhoek for the hearing of an application in which the 13 are asking the court to declare their re-arrest as being illegal and to order that they should be released immediately, lawyers involved in the case confirmed yesterday. The hearing, which is expected to take place before a full bench of three judges of the High Court, is scheduled to take place on April 16.Another related case involving the 13 has now also been set down for a hearing in the Supreme Court, the Office of the Chief Justice confirmed yesterday.That case – in which the State is appealing against the ruling with which Judge Elton Hoff discharged the 13 from the Caprivi high treason case and ordered their release on February 23, when he found that they had been brought before the High Court at Grootfontein irregularly – is set to be heard from May 10 to 12.Five judges of the Supreme Court are set to be on the bench when that appeal is heard, the Chief Justice’s Special Assistant, Mina Viljoen, said yesterday.They are Acting Chief Justice Johan Strydom, and Acting Judges of Appeal Simpson Mtambanengwe, Bryan O’Linn, Mavis Gibson and Fred Chomba.It will be only the second time since Independence that a five-judge bench of the Supreme Court will be sitting on an appeal.The first time was two years ago, when the court was asked to rule whether Government had to provide legal aid to the Caprivi high treason accused.At that stage they were facing the prospect of going on trial without legal representation.In respect of the application in which the 13 are asking for their immediate release, the Permanent Secretary in the Office of the Attorney General, Vicki Erenstein ya Toivo, confirmed yesterday that legal questions on that matter will now not be sent by the Attorney General to the Supreme Court to be answered.She explained that Government would have preferred it if the Supreme Court could have first dealt with the State’s appeal against the discharge of the 13, before the application for the release of the 13 would be taken to court.The continued detention of the 13 – they were again charged with high treason two days after Judge Hoff’s ruling that they were discharged from the Caprivi high treason case and that they had to be released – may well become a moot point of the Supreme Court rules in favour of the appeal against Judge Hoff’s decision, she explained.Erenstein ya Toivo said there had not been an agreement to have questions sent to the Supreme Court.There had however been a discussion about it, and she had made it clear to Government’s legal counsel in the case that they could not agree to anything until they had discussed it with their clients in the case (Government, the Minister of Home Affairs and the Prosecutor General).Also yesterday, Patrick Kauta, one the lawyers representing the 13, however disputed Erenstein ya Toivo’s claim that there had been no such agreement.He also disputed her claim that it was the legal representatives of the 13 who had approached Government’s lawyers with the offer that they could deal with the thirteen’s application for their immediate release by rather having the Attorney General send legal questions on their situation to the Supreme Court for a first and final ruling on the issue.According to Kauta it was the Government’s legal representatives that approached the lawyers of the 13 with an offer to have the matter sent directly to the Supreme Court.There was an agreement that this avenue would be followed, and the two legal teams also had a meeting at which they agreed on the formulation of the questions that the Supreme Court was going to be asked to adjudicate on, he said.One of the questions that was to be posed was whether, if the Supreme Court dismissed the State’s pending appeal, the Constitution prohibited the re-arrest or prosecution of persons whose presence in Namibia had been found to have been secured as a result of a breach of international law.That question touches on what had been a central point of dispute between the State and the defence in the treason case during the hearing in which Judge Hoff had to determine whether the High Court had jurisdiction over the 13.The 13 had disputed the court’s authority to try them, by claiming that they had been brought unlawfully to Namibia from either Zambia or Botswana.The hearing, which is expected to take place before a full bench of three judges of the High Court, is scheduled to take place on April 16.Another related case involving the 13 has now also been set down for a hearing in the Supreme Court, the Office of the Chief Justice confirmed yesterday.That case – in which the State is appealing against the ruling with which Judge Elton Hoff discharged the 13 from the Caprivi high treason case and ordered their release on February 23, when he found that they had been brought before the High Court at Grootfontein irregularly – is set to be heard from May 10 to 12.Five judges of the Supreme Court are set to be on the bench when that appeal is heard, the Chief Justice’s Special Assistant, Mina Viljoen, said yesterday.They are Acting Chief Justice Johan Strydom, and Acting Judges of Appeal Simpson Mtambanengwe, Bryan O’Linn, Mavis Gibson and Fred Chomba.It will be only the second time since Independence that a five-judge bench of the Supreme Court will be sitting on an appeal.The first time was two years ago, when the court was asked to rule whether Government had to provide legal aid to the Caprivi high treason accused.At that stage they were facing the prospect of going on trial without legal representation.In respect of the application in which the 13 are asking for their immediate release, the Permanent Secretary in the Office of the Attorney General, Vicki Erenstein ya Toivo, confirmed yesterday that legal questions on that matter will now not be sent by the Attorney General to the Supreme Court to be answered.She explained that Government would have preferred it if the Supreme Court could have first dealt with the State’s appeal against the discharge of the 13, before the application for the release of the 13 would be taken to court.The continued detention of the 13 – they were again charged with high treason two days after Judge Hoff’s ruling that they were discharged from the Caprivi high treason case and that they had to be released – may well become a moot point of the Supreme Court rules in favour of the appeal against Judge Hoff’s decision, she explained.Erenstein ya Toivo said there had not been an agreement to have questions sent to the Supreme Court.There had however been a discussion about it, and she had made it clear to Government’s legal counsel in the case that they could not agree to anything until they had discussed it with their clients in the case (Government, the Minister of Home Affairs and the Prosecutor General).Also yesterday, Patrick Kauta, one the lawyers representing the 13, however disputed Erenstein ya Toivo’s claim that there had been no such agreement.He also disputed her claim that it was the legal representatives of the 13 who had approached Government’s lawyers with the offer that they could deal with the thirteen’s application for their immediate release by rather having the Attorney General send legal questions on their situation to the Supreme Court for a first and final ruling on the issue.According to Kauta it was the Government’s legal representatives that approached the lawyers of the 13 with an offer to have the matter sent directly to the Supreme Court.There was an agreement that this avenue would be followed, and the two legal teams also had a meeting at which they agreed on the formulation of the questions that the Supreme Court was going to be asked to adjudicate on, he said.One of the questions that was to be posed was whether, if the Supreme Court dismissed the State’s
pending appeal, the Constitution prohibited the re-arrest or prosecution of persons whose presence in Namibia had been found to have been secured as a result of a breach of international law.That question touches on what had been a central point of dispute between the State and the defence in the treason case during the hearing in which Judge Hoff had to determine whether the High Court had jurisdiction over the 13.The 13 had disputed the court’s authority to try them, by claiming that they had been brought unlawfully to Namibia from either Zambia or Botswana.