High Court makes history with Caprivi 13 ruling

THE ruling with which Judge Elton Hoff discharged 13 Caprivi high treason accused in the High Court at Grootfontein last Monday, has been one of the most polarising court decisions Namibia has seen in years.

On the one side it has been hailed as a judgement that serves as evidence of the independence of Namibia’s judiciary and of Judges’ adherence to their oath to apply the law and to dispense justice fearlessly and without prejudice or favour. On the other hand, the prosecution is planning to launch an appeal against the ruling, arguing that it is wrong in law.It also appears that in some quarters the ruling was either misunderstood or not fully understood, and has ended up being used to launch inflammatory attacks against the person of the Judge rather than the merits of his verdict.The Namibian’s WERNER MENGES, who has been reporting on court proceedings around the Caprivi high treason case since August 1999, takes a closer look at the historic judgement in the case of Moses Limbo Mushwena and Twelve Others versus The State.THE very first witness called by the prosecution to start building its case that the High Court of Namibia had jurisdiction over the 13 Caprivi high treason accused, who claimed to have been unlawfully abducted into Namibia, came back to haunt the State last Monday.That witness was military man Martin Shalli, the Major General who is the commander of the Namibian Army, who gave a make-no-excuses performance in the witness stand in the High Court at Grootfontein in late October last year.Last Monday, Shalli’s words returned time and again in Judge Hoff’s ruling, as he referred to them to motivate how he had reached the conclusion that the due processes of the law were not followed when the 13 were brought to Namibia from Zambia or Botswana.Judge Hoff concluded that 12 of the 13 were brought to Namibia through a process that he termed “disguised extradition”.Another of the 13 was brought from Zambia to Namibia without having given his proper consent to such a move, the Judge decided.NO ‘ABDUCTION’ Judge Hoff is the first Judge in independent Namibia to have been asked to make a ruling on a challenge to the High Court’s jurisdiction over people who claimed to have been brought into the country illegally.In that respect, he made legal history.In one significant respect he ruled in favour of the prosecution: finding that the evidence before him did not show that any of the 13 had been abducted from Zambia or Botswana in the way that an abduction had been defined in previous cases on the issue in other countries.That definition is that an abduction is, in essence, a kidnapping by agents of the state.In this case, the State which faced the accusation of abduction was Namibia.Judge Hoff also found that the evidence did not show that there had been “collusion” or “connivance” between the Namibian authorities and those of Zambia or Botswana to abduct the 13.He went further, though, finding instead that what had happened with 12 of the 13, was that they were in effect extradited from Zambia or Botswana without those countries’ extradition procedures having been followed.In testimony the prosecution placed before the court, “disguised extradition” was portrayed as lawful deportations of illegal immigrants from Zambia or Botswana.However, Shalli’s evidence, together with the absence of documentary proof that 12 of the 13 had been lawfully deported by the Zambian or Botswana authorities, helped persuade the Judge that the reality was quite different.The Major General appeared to be quite open with the court when he testified.He related that after the surprise armed attacks at Katima Mulilo on August 2 1999, he got in touch with his Zambian counterparts and asked them to hand over a group of “terrorists” that Namibia was looking for.The Zambians did exactly what they were supposed to do, Shalli added.He explained that there was no need to follow extradition proceedings because as far as the Zambian authorities were concerned they were dealing with illegal immigrants who had to be deported to Namibia in any case and, as far as the Namibian authorities were concerned, the suspects were terrorists who they badly wanted to apprehend.Whether they liked it or not, they had no choice but to return to Namibia since they had committed crimes in the country and they had to face “the ruthlessness of the law”, was how Judge Hoff summarised Shalli’s testimony.’POLITICAL OFFENCE’ However, the Judge indicated in his ruling, in terms of extradition laws the suspects indeed had the right to challenge a decision to return them to Namibia to be put on trial.One of the grounds on which they could have protested against a planned extradition was the “political offence exception” built into both Botswana’s and Zambia’s extradition laws.In terms of this, someone cannot be extradited to be tried for “a political offence”.Judge Hoff stated – in another very significant finding – that high treason “is by its very definition of a political nature”.Had Namibia initiated formal extradition proceedings, the extradition laws’ political offence exceptions would have been crucial in determining the issue, he added.To show how important courts had previously regarded the need for adhering to established extradition agreements, he quoted from an English House of Lords judgement: “If a practice developed in which the Police or prosecuting authorities of this country ignored extradition procedures and secured the return of an accused by a mere request to police colleagues in another country they would be flouting the extradition procedures and depriving the accused of safeguards built into the extradition process for his benefit.It is to my mind unthinkable that in such circumstances the Court should declare itself to be powerless and stand idly by”.He also quoted another English Law Lord: “The Courts of course have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution”.With his ruling, this is precisely what Judge Hoff appears to have tried to do.Judge Hoff’s 65-page judgement might still be tested on appeal in the Supreme Court.It remains to be seen whether it will be able to withstand that test.But at this stage already, the Judge has succeeded in making history and establishing his name as the author of what can only be considered to have been a trailblazing decision – irrespective of whether one agrees with it or not, and whether it will later be judged to have been correct in law or not.On the other hand, the prosecution is planning to launch an appeal against the ruling, arguing that it is wrong in law. It also appears that in some quarters the ruling was either misunderstood or not fully understood, and has ended up being used to launch inflammatory attacks against the person of the Judge rather than the merits of his verdict. The Namibian’s WERNER MENGES, who has been reporting on court proceedings around the Caprivi high treason case since August 1999, takes a closer look at the historic judgement in the case of Moses Limbo Mushwena and Twelve Others versus The State. THE very first witness called by the prosecution to start building its case that the High Court of Namibia had jurisdiction over the 13 Caprivi high treason accused, who claimed to have been unlawfully abducted into Namibia, came back to haunt the State last Monday. That witness was military man Martin Shalli, the Major General who is the commander of the Namibian Army, who gave a make-no-excuses performance in the witness stand in the High Court at Grootfontein in late October last year. Last Monday, Shalli’s words returned time and again in Judge Hoff’s ruling, as he referred to them to motivate how he had reached the conclusion that the due processes of the law were not followed when the 13 were brought to Namibia from Zambia or Botswana. Judge Hoff concluded that 12 of the 13 were brought to Namibia through a process that he termed “disguised extradition”. Another of the 13 was brought from Zambia to Namibia without having given his proper consent to such a move, the Judge decided. NO ‘ABDUCTION’ Judge Hoff is the first Judge in independent Namibia to have been asked to make a ruling on a challenge to the High Court’s jurisdiction over people who claimed to have been brought into the country illegally. In that respect, he made legal history. In one significant respect he ruled in favour of the prosecution: finding that the evidence before him did not show that any of the 13 had been abducted from Zambia or Botswana in the way that an abduction had been defined in previous cases on the issue in other countries. That definition is that an abduction is, in essence, a kidnapping by agents of the state. In this case, the State which faced the accusation of abduction was Namibia. Judge Hoff also found that the evidence did not show that there had been “collusion” or “connivance” between the Namibian authorities and those of Zambia or Botswana to abduct the 13. He went further, though, finding instead that what had happened with 12 of the 13, was that they were in effect extradited from Zambia or Botswana without those countries’ extradition procedures having been followed. In testimony the prosecution placed before the court, “disguised extradition” was portrayed as lawful deportations of illegal immigrants from Zambia or Botswana. However, Shalli’s evidence, together with the absence of documentary proof that 12 of the 13 had been lawfully deported by the Zambian or Botswana authorities, helped persuade the Judge that the reality was quite different. The Major General appeared to be quite open with the court when he testified. He related that after the surprise armed attacks at Katima Mulilo on August 2 1999, he got in touch with his Zambian counterparts and asked them to hand over a group of “terrorists” that Namibia was looking for. The Zambians did exactly what they were supposed to do, Shalli added. He explained that there was no need to follow extradition proceedings because as far as the Zambian authorities were concerned they were dealing with illegal immigrants who had to be deported to Namibia in any case and, as far as the Namibian authorities were concerned, the suspects were terrorists who they badly wanted to apprehend. Whether they liked it or not, they had no choice but to return to Namibia since they had committed crimes in the country and they had to face “the ruthlessness of the law”, was how Judge Hoff summarised Shalli’s testimony. ‘POLITICAL OFFENCE’ However, the Judge indicated in his ruling, in terms of extradition laws the suspects indeed had the right to challenge a decision to return them to Namibia to be put on trial. One of the grounds on which they could have protested against a planned extradition was the “political offence exception” built into both Botswana’s and Zambia’s extradition laws. In terms of this, someone cannot be extradited to be tried for “a political offence”. Judge Hoff stated – in another very significant finding – that high treason “is by its very definition of a political nature”. Had Namibia initiated formal extradition proceedings, the extradition laws’ political offence exceptions would have been crucial in determining the issue, he added. To show how important courts had previously regarded the need for adhering to established extradition agreements, he quoted from an English House of Lords judgement: “If a practice developed in which the Police or prosecuting authorities of this country ignored extradition procedures and secured the return of an accused by a mere request to police colleagues in another country they would be flouting the extradition procedures and depriving the accused of safeguards built into the extradition process for his benefit. It is to my mind unthinkable that in such circumstances the Court should declare itself to be powerless and stand idly by”. He also quoted another English Law Lord: “The Courts of course have no power to apply direct discipline to the police or the prosecuting authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their behaviour as an abuse of process and thus preventing a prosecution”. With his ruling, this is precisely what Judge Hoff appears to have tried to do. Judge Hoff’s 65-page judgement might still be tested on appeal in the Supreme Court. It remains to be seen whether it will be able to withstand that test. But at this stage already, the Judge has succeeded in making history and establishing his name as the author of what can only be considered to have been a trailblazing decision – irrespective of whether one agrees with it or not, and whether it will later be judged to have been correct in law or not.