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Treason appeal ruling leaves State reeling

Treason appeal ruling leaves State reeling

THE prosecution’s woes in the Caprivi high treason trial continued in the High Court at Grootfontein yesterday, when Judge Elton Hoff refused to allow the State to appeal to the Supreme Court against his decision that the High Court lacks jurisdiction over 13 of the treason suspects.

The 107 high treason accused who remain in the dock before Judge Hoff reacted to yesterday’s ruling – the second setback that the State has suffered in the case in the past two weeks – with a repeat of the applause and cheering with which they greeted the ruling ordering the release of the 13 last week. Following yesterday’s rebuff, the prosecution remains determined to pursue its efforts to take the jurisdiction issue over the 13 – who claim to have been unlawfully abducted to Namibia – to the highest court in the land.John Walters, special counsel for the prosecution, indicated that the State would now petition the Chief Justice for permission to appeal to the Supreme Court.At the same time, it has been indicated to Judge Hoff that the State will seek to postpone the case against the remaining 107 suspects when the matter returns to court on Monday.Immediately after the ruling, Deputy Prosecutor General Herman January rose to tell Judge Hoff that, while he respected the comments made by the Judge in court last week Tuesday – when he stated that the trial of the 107 must proceed even if the State tried to appeal in the case of the 13 – he would request a postponement of the case on Monday.This request appears to be motivated by the prosecution’s desire to have all 120 high treason accused stand trial together.Some of the 13 suspects whose release Judge Hoff ordered last week are people alleged to have been among the key figures and leaders of a movement aiming to achieve the secession of the Caprivi Region by violent means.Defence counsel Patrick Kauta was quick to reply to January’s warning of another postponement request.He told the court that the defence would oppose it and that, come Monday, the 107 accused would be ready to plead to the charges they face.Refusing to grant the prosecution leave to appeal, Judge Hoff stated that he was not convinced beyond a reasonable doubt that the State had reasonable prospects of success with such an appeal.It also appeared to him that the disadvantages of granting the prosecution’s application outweighed its advantages.Before delivering his ruling, Judge Hoff gave an extensive rundown of the pros and cons facing both the State and defence at this stage of the case with regard to the position of the discharged 13 and the remaining 107.”There are presently 107 accused persons before this Court facing charges, inter alia, of high treason, murder, attempted murder, sedition and a number of other serious offences totalling 278,” he pointed out.”The 13 accused persons who challenged the jurisdiction of this Court have been re-arrested and detained on charges unknown to this Court, shortly after they had been released.All 120 of them have now been in custody for more than four years.The 13 accused persons ordered to be released by this Court are presently without any legal representation.It is their constitutional right to oppose an appeal in the Supreme Court of Namibia and they have a constitutional right to legal representation at the hearing of such an appeal.Since they were provided – after a protracted period of time – with legal representation by the Directorate of Legal Aid, they must now apply afresh for such legal representation, the outcome of which is presently uncertain.”This, in turn, will inevitably not only result in further delays, but will also prejudice those other 107 accused persons who must now patiently wait until the conclusion of the appeal hearing – which in turn will delay the eventual moment of the beginning of this trial on the merits of the charges preferred against them even further.”The advantage to the State, should it eventually succeed in this appeal at some point in the distant future, would be to have the 13 accused persons tried together with the remaining 107 now before the Court.”Whilst I agree that the Constitution of Namibia guarantees a fair trial and that fairness is achieved by considering not only the interest of an accused person but also the interests of the State, and, in particular, the interests of the victims of crime, the Constitution in addition also requires the trial to take place within a reasonable time, failing which the accused shall be released.”He then concluded: “An accused person is innocent until proven guilty and, where a trial has – after four years – not yet got off the mark, the adage that ‘justice delayed is justice denied’ has (in this case) a particularly truthful ring about it.”Following yesterday’s rebuff, the prosecution remains determined to pursue its efforts to take the jurisdiction issue over the 13 – who claim to have been unlawfully abducted to Namibia – to the highest court in the land.John Walters, special counsel for the prosecution, indicated that the State would now petition the Chief Justice for permission to appeal to the Supreme Court.At the same time, it has been indicated to Judge Hoff that the State will seek to postpone the case against the remaining 107 suspects when the matter returns to court on Monday.Immediately after the ruling, Deputy Prosecutor General Herman January rose to tell Judge Hoff that, while he respected the comments made by the Judge in court last week Tuesday – when he stated that the trial of the 107 must proceed even if the State tried to appeal in the case of the 13 – he would request a postponement of the case on Monday.This request appears to be motivated by the prosecution’s desire to have all 120 high treason accused stand trial together.Some of the 13 suspects whose release Judge Hoff ordered last week are people alleged to have been among the key figures and leaders of a movement aiming to achieve the secession of the Caprivi Region by violent means.Defence counsel Patrick Kauta was quick to reply to January’s warning of another postponement request.He told the court that the defence would oppose it and that, come Monday, the 107 accused would be ready to plead to the charges they face.Refusing to grant the prosecution leave to appeal, Judge Hoff stated that he was not convinced beyond a reasonable doubt that the State had reasonable prospects of success with such an appeal.It also appeared to him that the disadvantages of granting the prosecution’s application outweighed its advantages.Before delivering his ruling, Judge Hoff gave an extensive rundown of the pros and cons facing both the State and defence at this stage of the case with regard to the position of the discharged 13 and the remaining 107.”There are presently 107 accused persons before this Court facing charges, inter alia, of high treason, murder, attempted murder, sedition and a number of other serious offences totalling 278,” he pointed out.”The 13 accused persons who challenged the jurisdiction of this Court have been re-arrested and detained on charges unknown to this Court, shortly after they had been released.All 120 of them have now been in custody for more than four years.The 13 accused persons ordered to be released by this Court are presently without any legal representation.It is their constitutional right to oppose an appeal in the Supreme Court of Namibia and they have a constitutional right to legal representation at the hearing of such an appeal.Since they were provided – after a protracted period of time – with legal representation by the Directorate of Legal Aid, they must now apply afresh for such legal representation, the outcome of which is presently uncertain.”This, in turn, will inevitably not only result in further delays, but will also prejudice those other 107 accused persons who must now patiently wait until the conclusion of the appeal hearing – which in turn will delay the eventual moment of the beginning of this trial on the merits of the charges preferred against them even further.”The advantage to the State, should it eventually succeed in this appeal at some point in the distant future, would be to have the 13 accused persons tried together with the remaining 107 now before the Court.”Whilst I agree that the Constitution of Namibia guarantees a fair trial and that fairness is achieved by considering not only the interest of an accused person but also the interests of the State, and, in particular, the interests of the victims of crime, the Constitution in addition also requires the trial to take place within a reasonable time, failing which the accused shall be released.”He then concluded: “An accused person is innocent until proven guilty and, where a trial has – after four years – not yet got off the mark, the adage that ‘justice delayed is justice denied’ has (in this case) a particularly truthful ring about it.”

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