Defence wins another round in treason trial

THE “deliberate and conscious violation” of the constitutional rights of one of the 119 men being prosecuted in the main Caprivi high treason trial yesterday handed the State its latest defeat in the trial.

The defeat came the prosecution’s way in a ruling that Judge Elton Hoff made in a trial-within-a-trial that has kept the treason trial occupied for the past three weeks. The issue at stake before Judge Hoff in the High Court on the grounds of the Windhoek Central Prison was whether evidence about alleged admissions that one of the 119 accused men, Linus Luseso, was claimed to have made to the Police on August 28 1999, as well as the pointing out of the location of a claimed secessionist rebel base that Luseso is claimed to have made, should be admitted as evidence in the trial.Luseso’s defence counsel, Winnie Sithole Mwenda, objected.She claimed that Luseso had in the first place not made such claimed admissions or pointed out the place where the alleged Caprivi separatists’ base was said to have been found, and that if he had made the claimed statements to the Police, it was not done freely and voluntarily.Four witnesses testified for the State during the hearing of the trial-within-a-trial on the admissibility of evidence about the statements that Luseso’s is alleged to have made to the Police.Luseso also testified on his own behalf.He claimed in his testimony that he was badly assaulted by members of the Namibian security forces after they had picked him up from his home village, Mpacha, close to Katima Mulilo.He denied that he had accompanied the Police to a place in the bush between 30 and 40 kilometres from Katima Mulilo, where two Police officers who testified claimed the ‘Cameroon’ secessionist base was found.One issue that was not in dispute in the trial-within-a-trial was that Luseso was not informed that he had the right to legal representation, the right not to incriminate himself – these are both rights that are specifically protected in terms of the Constitution – or the right to remain silent, which is a right that is normally explained to a suspect in terms of the so-called Judges’ Rules that serve as a guideline for the treatment of suspects by the Police, Judge Hoff pointed out in his ruling.”In my view an important consideration in determining whether an admission had been made freely and voluntarily is whether what an accused had informed a Police officer can be regarded as an informed decision,” Judge Hoff stated.During the trial-within-a-trial, Deputy Prosecutor General Taswald July argued on behalf of the State that Namibia’s Constitution – unlike the South African constitution, for instance – does not expressly state that an accused person has a right to be informed of his rights in terms of the Constitution, the Judge also noted.He however also remarked that Article 12 of the Constitution, which sets out the right to a fair trial, “means that the entire process of bringing an accused person to trial and the trial itself needs to be tested against the standard of a fair trial”.Just as an accused person is entitled to fair trial procedures, a suspect who has not yet been arrested is entitled to the same rights, including the right to legal representation, the right to be presumed innocent, the right to remain silent, and the right against self-incrimination, Judge Hoff stated.According to evidence presented on behalf of the State, Luseso was regarded as a suspect as well as someone who could assist the Police when he was first questioned at Mpacha village, Judge Hoff noted.Under those circumstances, the Police had a duty to inform him of his constitutional rights and to warn him in terms of the Judges’ Rules, the Judge stated.This, of course, was not done.Judge Hoff quoted from a South African judgement that has been accepted as a basis for Namibian courts’ recognition of the importance of being informed of the right to legal representation: “The failure to recognise the importance of informing an accused of his right to consult with a legal advisor during the pre-trial stage has the effect of depriving persons, especially the uneducated, the unsophisticated and the poor of the protection of their right to remain silent and not to incriminate themselves.This offends not only the concept of substantive fairness which now informs the right to a fair trial in this country, but also the right to equality before the law.Lack of education, ignorance and poverty will probably result in the underprivileged sections of the community having to bear the brunt of not recognising the right to be informed of the right to consult a lawyer.”He is convinced that Luseso was “one of those members of society who would not have known of his constitutional rights”, and who should have been warned according to Judges’ Rules, Judge Hoff said.”On the State’s own version, in this trial-within-a-trial the evidence clearly points to the fact that there was a deliberate and conscious violation of the constitutional right to legal representation and the right against self-incrimination, as well as the right to remain silent,” he stated.This violation of rights, he added, “is, in my view, of such a nature that at least it would in the event of this court eventually convicting the accused person taint such a conviction”.As a result, evidence about the alleged admission made by Luseso, or about him having pointed out the location of the alleged base at Cameroon, was not admissible in the trial, Judge Hoff ordered.This trial-within-a-trial is the first in which Judge Hoff was asked to make a ruling on the admissibility of evidence that is alleged to have been obtained from one of the 119 suspects under alleged circumstances in which their rights were violated.With the prosecution understood to be in possession of numerous statements containing alleged admissions and confessions that some of the 119 suspects are claimed to have made, it is also widely known, and has been widely reported, that many of the suspects were subjected to serious assaults by Police officers while they were in custody in the immediate aftermath of the alleged secessionist attacks that hit Katima Mulilo on August 2 1999.In these circumstances, the ruling that Judge Hoff made yesterday may still serve as an indication how the court would also view future claims that self-incriminating evidence had been obtained from some of the suspects in circumstances where their rights were violated.The issue at stake before Judge Hoff in the High Court on the grounds of the Windhoek Central Prison was whether evidence about alleged admissions that one of the 119 accused men, Linus Luseso, was claimed to have made to the Police on August 28 1999, as well as the pointing out of the location of a claimed secessionist rebel base that Luseso is claimed to have made, should be admitted as evidence in the trial.Luseso’s defence counsel, Winnie Sithole Mwenda, objected.She claimed that Luseso had in the first place not made such claimed admissions or pointed out the place where the alleged Caprivi separatists’ base was said to have been found, and that if he had made the claimed statements to the Police, it was not done freely and voluntarily.Four witnesses testified for the State during the hearing of the trial-within-a-trial on the admissibility of evidence about the statements that Luseso’s is alleged to have made to the Police.Luseso also testified on his own behalf.He claimed in his testimony that he was badly assaulted by members of the Namibian security forces after they had picked him up from his home village, Mpacha, close to Katima Mulilo.He denied that he had accompanied the Police to a place in the bush between 30 and 40 kilometres from Katima Mulilo, where two Police officers who testified claimed the ‘Cameroon’ secessionist base was found.One issue that was not in dispute in the trial-within-a-trial was that Luseso was not informed that he had the right to legal representation, the right not to incriminate himself – these are both rights that are specifically protected in terms of the Constitution – or the right to remain silent, which
is a right that is normally explained to a suspect in terms of the so-called Judges’ Rules that serve as a guideline for the treatment of suspects by the Police, Judge Hoff pointed out in his ruling.”In my view an important consideration in determining whether an admission had been made freely and voluntarily is whether what an accused had informed a Police officer can be regarded as an informed decision,” Judge Hoff stated.During the trial-within-a-trial, Deputy Prosecutor General Taswald July argued on behalf of the State that Namibia’s Constitution – unlike the South African constitution, for instance – does not expressly state that an accused person has a right to be informed of his rights in terms of the Constitution, the Judge also noted.He however also remarked that Article 12 of the Constitution, which sets out the right to a fair trial, “means that the entire process of bringing an accused person to trial and the trial itself needs to be tested against the standard of a fair trial”.Just as an accused person is entitled to fair trial procedures, a suspect who has not yet been arrested is entitled to the same rights, including the right to legal representation, the right to be presumed innocent, the right to remain silent, and the right against self-incrimination, Judge Hoff stated.According to evidence presented on behalf of the State, Luseso was regarded as a suspect as well as someone who could assist the Police when he was first questioned at Mpacha village, Judge Hoff noted.Under those circumstances, the Police had a duty to inform him of his constitutional rights and to warn him in terms of the Judges’ Rules, the Judge stated.This, of course, was not done.Judge Hoff quoted from a South African judgement that has been accepted as a basis for Namibian courts’ recognition of the importance of being informed of the right to legal representation: “The failure to recognise the importance of informing an accused of his right to consult with a legal advisor during the pre-trial stage has the effect of depriving persons, especially the uneducated, the unsophisticated and the poor of the protection of their right to remain silent and not to incriminate themselves.This offends not only the concept of substantive fairness which now informs the right to a fair trial in this country, but also the right to equality before the law.Lack of education, ignorance and poverty will probably result in the underprivileged sections of the community having to bear the brunt of not recognising the right to be informed of the right to consult a lawyer.”He is convinced that Luseso was “one of those members of society who would not have known of his constitutional rights”, and who should have been warned according to Judges’ Rules, Judge Hoff said.”On the State’s own version, in this trial-within-a-trial the evidence clearly points to the fact that there was a deliberate and conscious violation of the constitutional right to legal representation and the right against self-incrimination, as well as the right to remain silent,” he stated.This violation of rights, he added, “is, in my view, of such a nature that at least it would in the event of this court eventually convicting the accused person taint such a conviction”.As a result, evidence about the alleged admission made by Luseso, or about him having pointed out the location of the alleged base at Cameroon, was not admissible in the trial, Judge Hoff ordered.This trial-within-a-trial is the first in which Judge Hoff was asked to make a ruling on the admissibility of evidence that is alleged to have been obtained from one of the 119 suspects under alleged circumstances in which their rights were violated.With the prosecution understood to be in possession of numerous statements containing alleged admissions and confessions that some of the 119 suspects are claimed to have made, it is also widely known, and has been widely reported, that many of the suspects were subjected to serious assaults by Police officers while they were in custody in the immediate aftermath of the alleged secessionist attacks that hit Katima Mulilo on August 2 1999.In these circumstances, the ruling that Judge Hoff made yesterday may still serve as an indication how the court would also view future claims that self-incriminating evidence had been obtained from some of the suspects in circumstances where their rights were violated.