State asked to explain Caprivi 13 confusion

THE State prosecution in the Caprivi high treason case will today have to explain whether 13 of the accused were released last week as ordered by the High Court at Grootfontein.

As soon as the court went into session yesterday, after a six-day break in proceedings, the State was hit by fallout from last week’s developments around the 13. The 13 are still in custody despite Judge Elton Hoff’s ruling last Monday that they be released.He made that order after finding that the High Court did not have the jurisdiction to try them because of irregularities in the way the suspects were brought into Namibia to be charged and prosecuted.Since that order, the 13 have reported that the Police twice informed them that they were released, only for them to find themselves re-arrested twice and eventually charged with high treason – again.Deputy Prosecutor General Herman January had scarcely started the introduction to his address to the court yesterday when defence counsel Patrick Kauta rose with an interjection.He said the State was in contempt of court because the 13 had not been released as ordered by the court.”They are still languishing in jail on the very same charges that this court has said it has no jurisdiction [to try them on],” he said.”A party in contempt of court cannot come to court and ask something of the very same court whose order he is ignoring, without that party first purging its contempt,” Kauta argued.After the court ordered the release of the 13, they “were not in law released, and in fact the court order has been ignored”, Kauta told the Judge.He followed up with a direct accusation: “The State, my Lord, is in contempt of court.The very same State that ignores a court order is coming to court to ask for leave to appeal against that same court order.”But as long as the State was in contempt of court because it has not complied with the court’s order for the release of the 13, it was not properly before the court and could not be heard, Kauta argued.”Namibia is a Rechtstaat (a constitutional state, where the rule of law applies),” Kauta said.”We are not living in an apartheid state, run by Police officers.”January appeared to be caught somewhat off guard by this latest offensive to be launched by the defence.He initially told the court there had been no indication what should happen to the 13 after their release – for example, whether they should be returned to the countries where they had been irregularly brought from, in terms of the court’s ruling, or whether they should be able to choose to go to a country of their choice.January added that, as of yesterday morning, it was not clear whether the 13 had in fact been released and arrested again.It was wrong, though, to say that there had been an agreement between the defence and the State that the group had not been released in law, January continued.If they had in fact been released, the State was not in contempt, he said.Interceding, Judge Hoff remarked that he had ordered that the 13 be released.He appeared to emphasise the last word.”I find it strange that the State cannot tell the court whether they had been released,” he added.After he had been given an almost half-hour adjournment to try and establish the facts of the matter, January returned to court to ask for more time to find witnesses who could today tell the court what had happened with the 13 and their supposed releases and reported re-arrest and re-re-arrest.Kauta also raised the issue of a previous, quite similar case, to back up his argument that court orders needed to be obeyed, whether they were considered to be wrong or not.That was the case of Jose Domingos Sikunda, a former Unita representative in Namibia whose detention pending a planned deportation in late 2000 set in motion months of legal wrangling, ending in Home Affairs Minister Jerry Ekandjo being convicted of contempt of court because the Police failed for months to comply with a court order to release Sikunda.In that case, Kauta said, the High Court had ruled that every person against whom or in respect of whom a court order was made, had the plain and unqualified obligation to obey that order until it had been discharged – even if the person thought the order to be wrong.The 13 are still in custody despite Judge Elton Hoff’s ruling last Monday that they be released. He made that order after finding that the High Court did not have the jurisdiction to try them because of irregularities in the way the suspects were brought into Namibia to be charged and prosecuted. Since that order, the 13 have reported that the Police twice informed them that they were released, only for them to find themselves re-arrested twice and eventually charged with high treason – again. Deputy Prosecutor General Herman January had scarcely started the introduction to his address to the court yesterday when defence counsel Patrick Kauta rose with an interjection. He said the State was in contempt of court because the 13 had not been released as ordered by the court. “They are still languishing in jail on the very same charges that this court has said it has no jurisdiction [to try them on],” he said. “A party in contempt of court cannot come to court and ask something of the very same court whose order he is ignoring, without that party first purging its contempt,” Kauta argued. After the court ordered the release of the 13, they “were not in law released, and in fact the court order has been ignored”, Kauta told the Judge. He followed up with a direct accusation: “The State, my Lord, is in contempt of court. The very same State that ignores a court order is coming to court to ask for leave to appeal against that same court order.” But as long as the State was in contempt of court because it has not complied with the court’s order for the release of the 13, it was not properly before the court and could not be heard, Kauta argued. “Namibia is a Rechtstaat (a constitutional state, where the rule of law applies),” Kauta said. “We are not living in an apartheid state, run by Police officers.” January appeared to be caught somewhat off guard by this latest offensive to be launched by the defence. He initially told the court there had been no indication what should happen to the 13 after their release – for example, whether they should be returned to the countries where they had been irregularly brought from, in terms of the court’s ruling, or whether they should be able to choose to go to a country of their choice. January added that, as of yesterday morning, it was not clear whether the 13 had in fact been released and arrested again. It was wrong, though, to say that there had been an agreement between the defence and the State that the group had not been released in law, January continued. If they had in fact been released, the State was not in contempt, he said. Interceding, Judge Hoff remarked that he had ordered that the 13 be released. He appeared to emphasise the last word. “I find it strange that the State cannot tell the court whether they had been released,” he added. After he had been given an almost half-hour adjournment to try and establish the facts of the matter, January returned to court to ask for more time to find witnesses who could today tell the court what had happened with the 13 and their supposed releases and reported re-arrest and re-re-arrest. Kauta also raised the issue of a previous, quite similar case, to back up his argument that court orders needed to be obeyed, whether they were considered to be wrong or not. That was the case of Jose Domingos Sikunda, a former Unita representative in Namibia whose detention pending a planned deportation in late 2000 set in motion months of legal wrangling, ending in Home Affairs Minister Jerry Ekandjo being convicted of contempt of court because the Police failed for months to comply with a court order to release Sikunda. In that case, Kauta said, the High Court had ruled that every person against whom or in respect of whom a court order was made, had the plain and unqualified obligation to obey that order until it had been discharged – even if the person thought the order to be wrong.