Treason appeal bid tomorrow

THE High Court at Grootfontein will rule tomorrow on whether to allow the State to appeal against the ruling that 13 Caprivi high treason accused had been brought irregularly before a Namibian court and therefore had to be released.

Judge Elton Hoff, who issued the ruling discharging the 13 from the case last Monday, yesterday heard arguments from Deputy Prosecutor General Herman January and defence counsel Patrick Kauta on the State’s application to be given leave to appeal to the Supreme Court. January was only able to present his arguments after Judge Hoff had dismissed a defence attempt to prevent the State from addressing the court.Kauta argued on Monday that the State could not be heard as long as it was in contempt of court for not having complied with Judge Hoff’s order of last Monday: that the 13 had to be released.As the court went into session in the morning, the number of accused in the dock served as testimony to the emptiness of the victory the defence scored with the discharge ruling.The same 13 were again sitting in the front row of the dock under Police guard.After January had brought that fact to the court’s attention, Kauta explained that the defence had not requested that they should be brought to court again.Judge Hoff remarked that he had ruled that the 13 be released from custody and, implicit in that ruling, was that they need not return to court.With that, the 13 were excused.In a ruling on Kauta’s argument that the State could not be heard because it was in contempt of court, Judge Hoff said there was at least initial evidence – in the form of official release documents – of a release of the 13.Even if their release had been short-lived, the court could not, at this stage, find that there was “substantial” non-compliance with last Monday’s court order, the Judge ruled.He also said it was unnecessary – and he did not want to express any opinion at this point – to determine whether it was lawful that the 13 could subsequently (after the ruling and their purported release) be re-arrested.After the court adjourned, Kauta indicated that – in the light of this ruling – the defence might elect to try a different approach to the High Court to again try to ensure that the order for the release of the 13 be fully complied with.Kauta therefore opposed the State’s application for leave to appeal.He said such an appeal should follow the normal course that applied in criminal trials.This would mean that such an appeal could only be heard after the trial that it emanated from had been finalised.He argued that the State did not have reasonable prospects for success on appeal because the possibility that another court might come to a different conclusion was not sufficient grounds for appeal.January’s grounds for appeal were summarised in three pages in which the prosecution listed a range of what it claimed were both factual and legal errors in the Judge’s ruling.According to January’s argument, alleged mistakes made by Judge Hoff included his findings that:* an “informal request” for the handing over of high treason suspects that Namibian Army commander, Major General Martin Shalli, had submitted to Zambian authorities, tainted the deportation proceedings in Zambia;* the Zambian authorities had decided to deport “the fugitives” from Zambia only after Shalli had made his “informal request”;* Shalli had “turned a blind eye” to relevant extradition proceedings;* Namibian officials unduly influenced Zambian authorities to deport “the fugitives” to Namibia; and* the handing over of most of the 13 was in essence a “disguised extradition”, whereas this issue was never raised or argued by either the prosecution or defence.According to January’s argument, the Judge should have found: * that Shalli’s “informal request” that the fugitives detained in Zambia should be handed over was irrelevant to the issue of deportation, and that the Zambian authorities had decided on their own to deport “the fugitives”,* that Namibian officials did not exert any force on Zambia or Botswana to hand over “the fugitives” to Namibia,* that Shalli, or any other Namibian official, did not incite or unduly influence anyone in Zambia or Botswana to resort to unlawful methods to deport “the fugitives”; and* that it was understandable that the Zambian authorities were eager to get rid of the illegal immigrants and were prepared to expedite their deportation, and that this was not an indication of anything sinister or suspicious.January was only able to present his arguments after Judge Hoff had dismissed a defence attempt to prevent the State from addressing the court.Kauta argued on Monday that the State could not be heard as long as it was in contempt of court for not having complied with Judge Hoff’s order of last Monday: that the 13 had to be released.As the court went into session in the morning, the number of accused in the dock served as testimony to the emptiness of the victory the defence scored with the discharge ruling.The same 13 were again sitting in the front row of the dock under Police guard.After January had brought that fact to the court’s attention, Kauta explained that the defence had not requested that they should be brought to court again.Judge Hoff remarked that he had ruled that the 13 be released from custody and, implicit in that ruling, was that they need not return to court.With that, the 13 were excused.In a ruling on Kauta’s argument that the State could not be heard because it was in contempt of court, Judge Hoff said there was at least initial evidence – in the form of official release documents – of a release of the 13.Even if their release had been short-lived, the court could not, at this stage, find that there was “substantial” non-compliance with last Monday’s court order, the Judge ruled.He also said it was unnecessary – and he did not want to express any opinion at this point – to determine whether it was lawful that the 13 could subsequently (after the ruling and their purported release) be re-arrested.After the court adjourned, Kauta indicated that – in the light of this ruling – the defence might elect to try a different approach to the High Court to again try to ensure that the order for the release of the 13 be fully complied with.Kauta therefore opposed the State’s application for leave to appeal.He said such an appeal should follow the normal course that applied in criminal trials.This would mean that such an appeal could only be heard after the trial that it emanated from had been finalised.He argued that the State did not have reasonable prospects for success on appeal because the possibility that another court might come to a different conclusion was not sufficient grounds for appeal.January’s grounds for appeal were summarised in three pages in which the prosecution listed a range of what it claimed were both factual and legal errors in the Judge’s ruling.According to January’s argument, alleged mistakes made by Judge Hoff included his findings that:* an “informal request” for the handing over of high treason suspects that Namibian Army commander, Major General Martin Shalli, had submitted to Zambian authorities, tainted the deportation proceedings in Zambia;* the Zambian authorities had decided to deport “the fugitives” from Zambia only after Shalli had made his “informal request”;* Shalli had “turned a blind eye” to relevant extradition proceedings;* Namibian officials unduly influenced Zambian authorities to deport “the fugitives” to Namibia; and* the handing over of most of the 13 was in essence a “disguised extradition”, whereas this issue was never raised or argued by either the prosecution or defence.According to January’s argument, the Judge should have found: * that Shalli’s “informal request” that the fugitives detained in Zambia should be handed over was irrelevant to the issue of deportation, and that the Zambian authorities had decided on their own to deport “the fugitives”,* that Namibian officials did not exert any force on Zambia or Botswana to hand over “the fugitives” to Namibia,* that Shalli, or any other Namibian official, did not incite or unduly influence anyone in Zambia or Botswana to resort to unlawful methods to deport “the fugitives”; and* that it was understandable that the Zambian authorities were eager to get rid of the illegal immigrants and were prepared to expedite their deportation, and that this was not an indication of anything sinister or suspicious.