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Namibian charges come back to haunt ‘Dr Death’

Namibian charges come back to haunt ‘Dr Death’

APARTHEID-ERA biological and chemical warfare mastermind Wouter Basson may be prosecuted on six charges that were quashed when his trial started in the Pretoria High Court almost six years ago – including a charge related to the alleged execution of as many as 200 captive Swapo guerrillas during the 1980s – South Africa’s Constitutional Court ruled on Friday.

The ruling gives South Africa’s National Prosecuting Authority (NPA) the option of reopening the prosecution of Basson on charges that he took part in conspiracies hatched in South Africa to kill perceived enemies of the then South African government outside that country’s borders, including in Namibia, London, Swaziland and Mozambique. A renewed prosecution against Basson, a heart specialist who headed South Africa’s biological and chemical warfare programme under its National Party government, is not a foregone conclusion, though.The Constitutional Court – the highest court in South Africa – expressly stated that it was now up to the State in South Africa to decide on whether to put Basson on trial on the same charges or on an amended indictment.Basson’s right to be tried within a reasonable time and the question of double jeopardy – the principle that a person cannot be tried more than once on the same charges – would, if necessary, still have to be considered, the court noted.’WAR CRIMES’ This leaves Basson with two obvious options: to argue that he has not received a trial within a reasonable period of time, or that he has already been on trial on the six charges which can now be reinstated, since another charge which had not been quashed at the start of his trial involved much of the same evidence as would have been led on the six charges that had been set aside.Basson was eventually acquitted in April 2002 on all charges after the six murder conspiracy charges were quashed.Among the charges that the Constitutional Court ruled could be reinstated are three counts that originated from alleged secret military operations in Namibia that Basson is accused of having been involved in before Independence in 1990.All six charges are counts of conspiracy to murder under South Africa’s 1956 Riotous Assemblies Act.In the first Namibian charge, Basson was accused of involvement in a plan that the South African Defence Force’s Special Forces unit was claimed to have carried out between 1981 and 1988 with the aim of killing captive Swapo combatants whose numbers were considered to have become too high to handle and who were considered to have become a security risk.According to the indictment that Basson originally faced at his trial in the Pretoria High Court, a plan was hatched in which he provided muscle relaxants and narcotics to fellow SADF members, who allegedly injected captive guerrillas with overdoses of the substances in order to kill them.An estimated 200 Swapo captives were alleged to have been murdered in this way.It was claimed in the indictment that the plan further involved getting rid of the victims’ remains by loading their bodies onto an aircraft, from which they were thrown into the sea.As part of the same charge, Basson was also accused of giving sleeping pills to five men detained at the Fort Doppies military base in Namibia.The men at first refused to take the pills, and hid them in the legs of chairs that were in the room where they were being kept, the indictment against Basson related.According to the indictment, Basson and a colleague observed this through a one-way window, whereafter Basson entered the room and convinced the men to take the pills, which they then did.When these had put them to sleep, he and his colleague, Lieutenant Colonel Johan Theron, injected the five men with muscle relaxants, which killed them through suffocation, it was alleged.Basson was a passenger in the aeroplane with which those five victims’ bodies were thrown out over the sea, it was also alleged.In the second charge resulting from alleged secret military operations in Namibia, it was claimed that Basson in 1985 supplied a toxic substance which was to be used to kill Peter Kalangula, who at that stage headed the then ethnic administration for Owamboland.That plan was never carried out, it was alleged.The third Namibian charge dated from the run-up to Namibia’s Independence elections in 1989, when the Civil Co-operation Bureau, a secret death squad created by the South African military and of which Basson is also alleged to have been a member, is claimed to have focused their efforts on derailing Namibia’s Independence process.It was alleged that Basson gave orders for laboratory-cultivated cholera bacteria to be supplied to CCB members during August 1989.The bacteria had to be put into the water supply of a refugee camp near Windhoek, where mainly Swapo members were housed.’EXTREME GRAVITY’ The three charges that relate to crimes claimed to have been committed against Namibians during the country’s struggle for Independence were included in the six counts against Basson that Pretoria High Court Judge Willie Hartzenberg set aside at the start of Basson’s trial in October 1999.The Judge ruled that because these charges concerned crimes committed outside South Africa, a South African court did not have the jurisdiction to try Basson on those counts.In a unanimous judgement, the Constitutional Court has now overturned that ruling.In so doing, the court also overturned a South African Supreme Court of Appeal ruling,which in June 2003 dismissed a first attempt to appeal against Basson’s eventual acquittal on the 61 charges that had remained against him after the six murder conspiracy charges were set aside.One factor that the Supreme Court of Appeal (SCA) did not properly consider, was “the extreme gravity” of the charges Basson faced, as well as the need to take account of South Africa’s international obligations to uphold principles of international humanitarian law, the court decided.It stated: “War by its very nature is brutal.It involves the intentional and frequently cruel killing of human beings, using all the force that a state can muster.Yet the law declares firmly that all is not fair in love and war.Since ancient times throughout the globe humanity has imposed limits on what can be done in the course of armed conflict.”Basson is alleged to have transgressed those limits, and the SCA should also have taken the seriousness of his alleged crimes into consideration, the Constitutional Court indicated.It recounted: “The quashed charges allege that Dr Basson used his medical knowledge not to treat the wounded and the sick, but to subject healthy prisoners in the hands of the SADF to asphyxiation through poison followed by the disposal of their corpses from aircraft over the sea.(…) They allege murder by poison and the existence of an active link between Dr Basson and a programme of assassination conducted by the Civil Co-operation Bureau.”The court stated: “As was pointed out at Nuremberg, crimes against international law are committed by people, not by abstract entities, so that only by punishing individuals who commit such crimes can the provisions of international law be enforced.Given the nature of the charges, the SCA should have given appropriate weight and attention to these considerations, even in the absence of any argument on these issues by the state.Given the extreme gravity of the charges and the powerful national and international need to have these issues properly adjudicated, particularly in the light of the international consensus on the normative desirability of prosecuting war criminals, only the most compelling reasons would have justified the SCA in exercising its discretion to refuse to rule on the charges.”Over the weekend the NPA was reported to have expressed delight at the judgement, while at the same time it indicated that it would need to study the judgement in full before deciding whether to re-launch the prosecution against Basson.Basson was reported to have phoned a radio talk show on Friday to say that he believed that attempts to prosecute him were “all over bar the shouting”.He reportedly said he thoug
ht it was quite clear that, given the legal arguments it has been “bandying about the last while and the way they go about it”, the prosecution was merely “ashamed, angry and sad”.A renewed prosecution against Basson, a heart specialist who headed South Africa’s biological and chemical warfare programme under its National Party government, is not a foregone conclusion, though.The Constitutional Court – the highest court in South Africa – expressly stated that it was now up to the State in South Africa to decide on whether to put Basson on trial on the same charges or on an amended indictment.Basson’s right to be tried within a reasonable time and the question of double jeopardy – the principle that a person cannot be tried more than once on the same charges – would, if necessary, still have to be considered, the court noted.’WAR CRIMES’ This leaves Basson with two obvious options: to argue that he has not received a trial within a reasonable period of time, or that he has already been on trial on the six charges which can now be reinstated, since another charge which had not been quashed at the start of his trial involved much of the same evidence as would have been led on the six charges that had been set aside.Basson was eventually acquitted in April 2002 on all charges after the six murder conspiracy charges were quashed. Among the charges that the Constitutional Court ruled could be reinstated are three counts that originated from alleged secret military operations in Namibia that Basson is accused of having been involved in before Independence in 1990.All six charges are counts of conspiracy to murder under South Africa’s 1956 Riotous Assemblies Act.In the first Namibian charge, Basson was accused of involvement in a plan that the South African Defence Force’s Special Forces unit was claimed to have carried out between 1981 and 1988 with the aim of killing captive Swapo combatants whose numbers were considered to have become too high to handle and who were considered to have become a security risk.According to the indictment that Basson originally faced at his trial in the Pretoria High Court, a plan was hatched in which he provided muscle relaxants and narcotics to fellow SADF members, who allegedly injected captive guerrillas with overdoses of the substances in order to kill them.An estimated 200 Swapo captives were alleged to have been murdered in this way.It was claimed in the indictment that the plan further involved getting rid of the victims’ remains by loading their bodies onto an aircraft, from which they were thrown into the sea.As part of the same charge, Basson was also accused of giving sleeping pills to five men detained at the Fort Doppies military base in Namibia.The men at first refused to take the pills, and hid them in the legs of chairs that were in the room where they were being kept, the indictment against Basson related.According to the indictment, Basson and a colleague observed this through a one-way window, whereafter Basson entered the room and convinced the men to take the pills, which they then did.When these had put them to sleep, he and his colleague, Lieutenant Colonel Johan Theron, injected the five men with muscle relaxants, which killed them through suffocation, it was alleged.Basson was a passenger in the aeroplane with which those five victims’ bodies were thrown out over the sea, it was also alleged.In the second charge resulting from alleged secret military operations in Namibia, it was claimed that Basson in 1985 supplied a toxic substance which was to be used to kill Peter Kalangula, who at that stage headed the then ethnic administration for Owamboland.That plan was never carried out, it was alleged.The third Namibian charge dated from the run-up to Namibia’s Independence elections in 1989, when the Civil Co-operation Bureau, a secret death squad created by the South African military and of which Basson is also alleged to have been a member, is claimed to have focused their efforts on derailing Namibia’s Independence process.It was alleged that Basson gave orders for laboratory-cultivated cholera bacteria to be supplied to CCB members during August 1989.The bacteria had to be put into the water supply of a refugee camp near Windhoek, where mainly Swapo members were housed.’EXTREME GRAVITY’ The three charges that relate to crimes claimed to have been committed against Namibians during the country’s struggle for Independence were included in the six counts against Basson that Pretoria High Court Judge Willie Hartzenberg set aside at the start of Basson’s trial in October 1999.The Judge ruled that because these charges concerned crimes committed outside South Africa, a South African court did not have the jurisdiction to try Basson on those counts.In a unanimous judgement, the Constitutional Court has now overturned that ruling.In so doing, the court also overturned a South African Supreme Court of Appeal ruling,which in June 2003 dismissed a first attempt to appeal against Basson’s eventual acquittal on the 61 charges that had remained against him after the six murder conspiracy charges were set aside.One factor that the Supreme Court of Appeal (SCA) did not properly consider, was “the extreme gravity” of the charges Basson faced, as well as the need to take account of South Africa’s international obligations to uphold principles of international humanitarian law, the court decided.It stated: “War by its very nature is brutal.It involves the intentional and frequently cruel killing of human beings, using all the force that a state can muster.Yet the law declares firmly that all is not fair in love and war.Since ancient times throughout the globe humanity has imposed limits on what can be done in the course of armed conflict.”Basson is alleged to have transgressed those limits, and the SCA should also have taken the seriousness of his alleged crimes into consideration, the Constitutional Court indicated.It recounted: “The quashed charges allege that Dr Basson used his medical knowledge not to treat the wounded and the sick, but to subject healthy prisoners in the hands of the SADF to asphyxiation through poison followed by the disposal of their corpses from aircraft over the sea.(…) They allege murder by poison and the existence of an active link between Dr Basson and a programme of assassination conducted by the Civil Co-operation Bureau.”The court stated: “As was pointed out at Nuremberg, crimes against international law are committed by people, not by abstract entities, so that only by punishing individuals who commit such crimes can the provisions of international law be enforced.Given the nature of the charges, the SCA should have given appropriate weight and attention to these considerations, even in the absence of any argument on these issues by the state.Given the extreme gravity of the charges and the powerful national and international need to have these issues properly adjudicated, particularly in the light of the international consensus on the normative desirability of prosecuting war criminals, only the most compelling reasons would have justified the SCA in exercising its discretion to refuse to rule on the charges.”Over the weekend the NPA was reported to have expressed delight at the judgement, while at the same time it indicated that it would need to study the judgement in full before deciding whether to re-launch the prosecution against Basson.Basson was reported to have phoned a radio talk show on Friday to say that he believed that attempts to prosecute him were “all over bar the shouting”.He reportedly said he thought it was quite clear that, given the legal arguments it has been “bandying about the last while and the way they go about it”, the prosecution was merely “ashamed, angry and sad”.

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