Caprivi case makes history again

FOR the second time in two years, the Caprivi high treason case has made history in the Supreme Court: yesterday saw a five-judge bench of Namibia’s highest court convened for only the second time since Independence.

Acting Chief Justice Johan Strydom and acting Judges of Appeal Mavis Gibson, Bryan O’Linn, Simpson Mtambanengwe and Fred Chomba are today scheduled to continue hearing arguments on the second State appeal to the Supreme Court from the Caprivi high treason case. As with the first appeal – in which Government unsuccessfully asked the Supreme Court to overturn a High Court judgement which ordered to provide the high treason suspects with State-financed legal representation – five Appeal Judges have again been called to sit in judgement on the appeal.In this appeal, the State is asking the Supreme Court to overturn the ruling in which Judge Elton Hoff decided on February 23 that the High Court did not have jurisdiction over 13 of the 120 high treason accused before the court at that stage.COURT QUERIESFor Cape Town senior counsel Jeremy Gauntlett, representing the State, yesterday’s hearing was mostly smooth sailing.The hearing had been set down to run over three days until tomorrow, but by one o-clock yesterday, after he had addressed the court for more than two-and-a-half hours, Gauntlett had already wrapped up his arguments.The seemingly critical questioning that he faced came mostly from acting Judge of Appeal O’Linn.As far as the interventions of some of the other judges went, Gauntlett could mostly reply that he agreed with the views that those members of the bench put to him for testing.For Patrick Kauta, representing the 13 high treason suspects who had based their challenge to the High Court’s jurisdiction over them on claims that they were abducted from Botswana or Zambia, there were more questions and testing of arguments in store from the bench – especially from acting Judges of Appeal Gibson, Mtambanengwe and Chomba.Gauntlett was still in the early stages of his argument when Judge O’Linn asked whether Judge Hoff’s ruling did not mean that the 13 were not free from prosecution, but that they could again be charged as soon as the correct procedures to bring them from Botswana or Zambia to Namibia and under the court’s jurisdiction had been followed.Gauntlett’s responded that, as Namibian citizens, the 13 could not be deported from their own country.He said the meaning of Judge Hoff’s ruling was that the 13 could not again be arrested on the same charges that the court had declined to assume jurisdiction on.The effect would be that the 13 would be immune from further prosecution on those charges, he said.In any event, the 13 are again facing the same charges.They were re-arrested and again charged with high treason, murder and attempted murder after Judge Hoff’s ruling.Last month, in a High Court hearing on the re-arrest, Gauntlett termed that re-arrest and continued detention as “a holding operation”, to keep the 13 in Namibia and under the control of the authorities until the Supreme Court was able to express itself on the appeal that it started to hear yesterday.ATTACK ON RULINGIn his ruling on the jurisdiction challenge of the 13, Judge Hoff found that the authorities in Botswana and Zambia had not followed those countries’ extradition laws.He also found that the delivery of the 13 to Namibia, which was portrayed to the court as a result of deportation proceedings, were in fact “disguised extradition”.According to Judge Hoff, the process through which the 13 were delivered to Namibia had furthermore been “tainted” by a request from the Namibian army’s top echelons for fugitive “terrorists” wanted in connection with alleged separatist attacks at Katima Mulilo in 1999, to be surrendered to Namibia.All of these findings came under attack from Gauntlett.He argued that the only logic by which a Namibian court could be stumped was for something that Namibia had done – and not for some wrong for which the Zambian or Botswana authorities were responsible.The evidence did not show that Namibia violated international law when Namibian officials received the 13 from other countries, who handed them over voluntarily, Gauntlett argued.Even if it was found that there was a violation of international law – which does not allow one State to exercise its authority over the territory of another State – such a violation was, in this case, not so serious that a Namibian court should not be able accept jurisdiction over the 13, he added.Gauntlett asked the court to set aside Judge Hoff’s order for the release of the 13.He also asked the court to, if possible, hand down the result of its judgement on the appeal as soon as possible, even if reasons for it had to follow later, as the high treason case was set to return to the High Court at Grootfontein on June 1.Kauta is set to continue with his address to the court today.As with the first appeal – in which Government unsuccessfully asked the Supreme Court to overturn a High Court judgement which ordered to provide the high treason suspects with State-financed legal representation – five Appeal Judges have again been called to sit in judgement on the appeal.In this appeal, the State is asking the Supreme Court to overturn the ruling in which Judge Elton Hoff decided on February 23 that the High Court did not have jurisdiction over 13 of the 120 high treason accused before the court at that stage.COURT QUERIESFor Cape Town senior counsel Jeremy Gauntlett, representing the State, yesterday’s hearing was mostly smooth sailing.The hearing had been set down to run over three days until tomorrow, but by one o-clock yesterday, after he had addressed the court for more than two-and-a-half hours, Gauntlett had already wrapped up his arguments.The seemingly critical questioning that he faced came mostly from acting Judge of Appeal O’Linn.As far as the interventions of some of the other judges went, Gauntlett could mostly reply that he agreed with the views that those members of the bench put to him for testing.For Patrick Kauta, representing the 13 high treason suspects who had based their challenge to the High Court’s jurisdiction over them on claims that they were abducted from Botswana or Zambia, there were more questions and testing of arguments in store from the bench – especially from acting Judges of Appeal Gibson, Mtambanengwe and Chomba.Gauntlett was still in the early stages of his argument when Judge O’Linn asked whether Judge Hoff’s ruling did not mean that the 13 were not free from prosecution, but that they could again be charged as soon as the correct procedures to bring them from Botswana or Zambia to Namibia and under the court’s jurisdiction had been followed.Gauntlett’s responded that, as Namibian citizens, the 13 could not be deported from their own country.He said the meaning of Judge Hoff’s ruling was that the 13 could not again be arrested on the same charges that the court had declined to assume jurisdiction on.The effect would be that the 13 would be immune from further prosecution on those charges, he said.In any event, the 13 are again facing the same charges.They were re-arrested and again charged with high treason, murder and attempted murder after Judge Hoff’s ruling.Last month, in a High Court hearing on the re-arrest, Gauntlett termed that re-arrest and continued detention as “a holding operation”, to keep the 13 in Namibia and under the control of the authorities until the Supreme Court was able to express itself on the appeal that it started to hear yesterday.ATTACK ON RULINGIn his ruling on the jurisdiction challenge of the 13, Judge Hoff found that the authorities in Botswana and Zambia had not followed those countries’ extradition laws.He also found that the delivery of the 13 to Namibia, which was portrayed to the court as a result of deportation proceedings, were in fact “disguised extradition”.According to Judge Hoff, the process through which the 13 were delivered to Namibia had furthermore been “tainted” by a request from the Namibian army’s top echelons for fugitive “terrorists” wanted
in connection with alleged separatist attacks at Katima Mulilo in 1999, to be surrendered to Namibia.All of these findings came under attack from Gauntlett.He argued that the only logic by which a Namibian court could be stumped was for something that Namibia had done – and not for some wrong for which the Zambian or Botswana authorities were responsible.The evidence did not show that Namibia violated international law when Namibian officials received the 13 from other countries, who handed them over voluntarily, Gauntlett argued.Even if it was found that there was a violation of international law – which does not allow one State to exercise its authority over the territory of another State – such a violation was, in this case, not so serious that a Namibian court should not be able accept jurisdiction over the 13, he added.Gauntlett asked the court to set aside Judge Hoff’s order for the release of the 13.He also asked the court to, if possible, hand down the result of its judgement on the appeal as soon as possible, even if reasons for it had to follow later, as the high treason case was set to return to the High Court at Grootfontein on June 1.Kauta is set to continue with his address to the court today.