Supreme Court to be asked to rule on Caprivi 13

THE Supreme Court could now be set to have the first and final say on whether it was legal to re-arrest 13 Caprivi high treason accused in the wake of a High Court ruling discharging them from the treason case.

Lawyers acting for the 13 and for the State, the Prosecutor General and the Minister of Home Affairs, agreed on Friday that the Supreme Court would be asked to make a first and final ruling on the re-arrest of the 13, their continued detention and the fact that they have again been charged with high treason after Judge Elton Hoff ruled that they were to be discharged and released. An avenue of direct access to Namibia’s highest court – that has been used only twice since Independence – is set to be used again by the Attorney General; that is after the opposing teams of lawyers – who were set to do battle in the High Court in an urgent application for the release of the 13 on Friday – agreed that the matter should rather be taken to the Supreme Court as a court of first instance.This should be done through the Attorney General, who should ask the Supreme Court to rule on a number of questions regarding the situation of the 13 accused, it was agreed.It has been almost 10 years since this method of access to the Supreme Court was last used.On that occasion, in 1994, the Attorney General asked the court to rule on the constitutional relationship between the posts of the Attorney General and the Prosecutor General.Before that, the only other time the Attorney General sent a case directly to the Supreme Court was when the court was asked in 1990 to rule on the constitutionality of corporal punishment in Namibia.In terms of the Constitution, the AG – the principal legal advisor to the President and Government whose functions include taking “all action necessary for the protection and upholding of the Constitution” – may refer matters to the Supreme Court.The deal to approach Namibia’s highest court directly was thrashed out as a full bench of the High Court, made up of Judge Annel Silungwe and Acting Judges John Manyarara and Petrus Damaseb, was set to hear an urgent application by the 13 in which they were to ask the court to declare their re-arrest and continued detention illegal and to order their immediate release.Instead, senior counsel Theo Frank, appearing for the 13, told the three judges that it had been agreed that the case should be postponed to a date to be arranged with the High Court Registrar.He added that the idea was that the parties would try to move the matter to the Supreme Court so that it could be finalised together with the pending appeal involving the 13 that was scheduled to be heard by that court.Frank was referring to an appeal by the State against Judge Hoff’s ruling in which he found that the High Court did not have jurisdiction over the 13 because they had been brought before the court irregularly.As a result of that finding, he ordered on February 23 that they be discharged from the high treason case and had to be released.The 13 were, however, re-arrested on other charges that same day and kept in continued Police custody for two days.That was followed on February 25 by the dropping of those charges, by the release of the 13 for a matter of minutes only, and by their second re-arrest in two days – that time on revived charges of high treason, murder and attempted murder.Since then, the high treason case has been postponed to June 1.One of the reasons for the delay is that the prosecution is first trying to have its appeal against the discharge of the 13 finalised.The prosecution hopes to have the 13 added to the case, again, pending in the High Court at Grootfontein, should the State win its appeal in the Supreme Court.Cape Town senior counsel Jeremy Gauntlett, who was set to represent Government, the Prosecutor General and the Home Affairs Minister in court on Friday, told the three judges that his clients were very concerned about the prospect of a further delay in the pending criminal trial.They would welcome a situation where there would be a final and binding ruling on the matter, he said.A date for the hearing of the State’s appeal to the Supreme Court – and also for the hearing of the question the Attorney General could refer to the court – is still to be determined.Gauntlett told The Namibian after Friday’s court proceedings that it was hoped that the parties would still be able to get a date set in April.An avenue of direct access to Namibia’s highest court – that has been used only twice since Independence – is set to be used again by the Attorney General; that is after the opposing teams of lawyers – who were set to do battle in the High Court in an urgent application for the release of the 13 on Friday – agreed that the matter should rather be taken to the Supreme Court as a court of first instance.This should be done through the Attorney General, who should ask the Supreme Court to rule on a number of questions regarding the situation of the 13 accused, it was agreed.It has been almost 10 years since this method of access to the Supreme Court was last used.On that occasion, in 1994, the Attorney General asked the court to rule on the constitutional relationship between the posts of the Attorney General and the Prosecutor General.Before that, the only other time the Attorney General sent a case directly to the Supreme Court was when the court was asked in 1990 to rule on the constitutionality of corporal punishment in Namibia.In terms of the Constitution, the AG – the principal legal advisor to the President and Government whose functions include taking “all action necessary for the protection and upholding of the Constitution” – may refer matters to the Supreme Court.The deal to approach Namibia’s highest court directly was thrashed out as a full bench of the High Court, made up of Judge Annel Silungwe and Acting Judges John Manyarara and Petrus Damaseb, was set to hear an urgent application by the 13 in which they were to ask the court to declare their re-arrest and continued detention illegal and to order their immediate release.Instead, senior counsel Theo Frank, appearing for the 13, told the three judges that it had been agreed that the case should be postponed to a date to be arranged with the High Court Registrar.He added that the idea was that the parties would try to move the matter to the Supreme Court so that it could be finalised together with the pending appeal involving the 13 that was scheduled to be heard by that court.Frank was referring to an appeal by the State against Judge Hoff’s ruling in which he found that the High Court did not have jurisdiction over the 13 because they had been brought before the court irregularly.As a result of that finding, he ordered on February 23 that they be discharged from the high treason case and had to be released.The 13 were, however, re-arrested on other charges that same day and kept in continued Police custody for two days.That was followed on February 25 by the dropping of those charges, by the release of the 13 for a matter of minutes only, and by their second re-arrest in two days – that time on revived charges of high treason, murder and attempted murder.Since then, the high treason case has been postponed to June 1.One of the reasons for the delay is that the prosecution is first trying to have its appeal against the discharge of the 13 finalised.The prosecution hopes to have the 13 added to the case, again, pending in the High Court at Grootfontein, should the State win its appeal in the Supreme Court.Cape Town senior counsel Jeremy Gauntlett, who was set to represent Government, the Prosecutor General and the Home Affairs Minister in court on Friday, told the three judges that his clients were very concerned about the prospect of a further delay in the pending criminal trial.They would welcome a situation where there would be a final and binding ruling on the matter, he said.A date for the hearing of the State’s appeal to the Supreme Court – and also for the hearing of the question the Attorney General could refer to the court – is still to be determined.Gauntlett told The Namibian aft
er Friday’s court proceedings that it was hoped that the parties would still be able to get a date set in April.