Prosecution bungled Caprivi treason trial

Sep 25, 2015

By Magreth Nunuhe

Windhoek – The curtain has been finally pulled down on the longest and biggest trial in Namibian legal history, the Caprivi treason trial, when 30 accused were found guilty of high treason, nine murder charges and 90 counts of attempted murder, while 79 walked out as free men last week.
Initially, an exceptionally large number of people were accused of 278 counts of criminal conduct for alleged involvement in the secession of the former Caprivi Region (now Zambezi Region) in the north-eastern part of Namibia between 1992 and 2002, but 132 were later charged for involvement.
In August 1999, members of the Caprivi Liberation Army (CLA) launched an armed attack on Namibian government forces and buildings in the regional capital of Katima Mulilo, which led to government declaring a state of emergency in the north-eastern region.

Eleven people were killed while 300 suspected rebel fighters were detained by members of the Namibia Defence Force and the Special Field Force.

Former leader of the Democratic Turnhalle Alliance (DTA) and member of the National Assembly, Mishake Muyongo, was pinpointed as the mastermind behind the secession attempt, but was granted asylum in Denmark after he fled Namibia.

Not only has the Caprivi treason trial been criticised for allegations of maltreatment of the accused by way of torture, medical neglect and unsanitary conditions in the holding cells, but some legal experts have also expressed their discontent with the way the Namibian legal system was stretched beyond insurmountable measures.

Nico Horn, University of Namibia (UNAM) law professor and former State Advocate at the Prosecutor-General’s Office, said that the problem started when a huge group of people were prosecuted simultaneously.

“It was not a clever move, 122 indictments are difficult.  From the beginning, the courts relied on the testimonies of the police, they produced thick dockets, collected evidence but there was no dissemination of information,” he reckoned, saying that another thing that also exacerbated the problem was unreliable whistle blowers, who were initially sympathetic to the secessionist movement, but became state witnesses in the end.

He maintained that testimonies of the accused were also unreliable because of alleged tortures in the holding cells, while the State also never prosecuted suspected torturers dreading to discredit its own case.

In that sense, Horn said that the State also went against the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which aims to prevent torturelawyers-cut and other acts of cruel, inhuman, or degrading treatment or punishment around the world.

“Evidence could have been more reliable for a case that went on for eleven years. It does not help for our image, because we did not prosecute torturers. A more intelligent way of prosecuting would have helped, by keeping ring leaders together and those for minor crimes separate,” he pointed out.

Other impediments to the trial, Horn said, was witnesses who all quoted the same time and date of when events occurred during the sedition attempt, which aroused suspicion that they coached witnesses to give those accounts in court.

“When asked to give own birthdates or names, some did not even know,” he said, adding that the longer the case went on, the more difficult it became for whistle blowers to remember, while many did not understand the legal system.

Horn said that there was likelihood that those who were acquitted in the trial after spending 16 years in jail would sue government, but they would have to prove that the State concocted to keep them in jail.

“A few will try to prove that, but the police docket can show that they were imprisoned on suspicion of guilt. People whose case rely on torture could have a case,” he added.

Horn is also of the opinion that government would not appeal against those who were acquitted and must be thankful the case is over.

“It is also good news to taxpayers who were footing the bill of defence lawyers,” he said.

Twenty-two prisoners who were awaiting trial died in custody and some have questioned the circumstances under which they died, but families of those who died in prison will have to prove that correctional services was at fault.

Horn also questioned the effectiveness of the security forces, saying that it was strange how they were caught off-guard when quite a few suspected rebels had left Caprivi for Botswana before the actual attack on government installations.

Human rights lawyer Norman Tjombe said that the Caprivi treason trial, which has been the longest case in Namibian history, was unfortunately a big failure due to delays.

“It was not (a) successful (case), because if you arrest over 300 people and release over 160 people and only 30 people are convicted, then you only had a 10 percent success rate,” he said, pointing out that so much money was spent on legal aid as government also had to pay private lawyers.

Furthermore, Tjombe said that the lives of the accused were disrupted as they endured prison for 16 years, which was unfair.

“We didn’t do justice. We should have looked at the case without becoming emotional or political. We wanted to show we have a strong government and a strong arm of the law. Many of those acquitted could be innocent people who lost jobs, homes, children who grew up without their fathers. Now they have to go back to society and pick up the pieces from there. A multitude of injustices were committed,” the outspoken lawyer lashed out.

He noted that some witnesses were not telling the truth and changed their testimonies often, while some could not identify the accused in court.

lawyers“There would most likely be appeals. But to sue the State, they have to prove that the State had malicious intent to prosecute them,” he stressed, saying that the chances of proving that government is liable are slim and difficult.

Tjombe said that the prosecution was a disaster waiting to happen from the onset as government first refused to grant legal aid to the accused until the Supreme Court confirmed that government was liable to provide legal aid.

He reckoned that the trial could have been over in three months as not everyone was charged with treason.

The 30 convicted are due to return to court in October 2015 to hear arguments before their sentencing.

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