Lawyers Gear to
Argue Second Treason Trial Challenge
Posted to the web October 7, 2005
testimony on eleven Caprivi high treason suspects' claims that they were
abducted from Botswana to be arrested and prosecuted in Namibia was heard in
the High Court in Windhoek yesterday.
With all the
testimony on the eleven's challenge against the High Court's power to try them
now on the record before Acting Judge John Manyarara, the arguing can start
about how the evidence should be interpreted.
Lawyers involved in the second
high treason trial over an alleged plot to secede the Caprivi Region from
Namibia will address the judge on Tuesday next week with their final arguments
on the jurisdiction challenge.
On record before Acting Judge
Manyarara is testimony given by seven witnesses called by Deputy Prosecutor
General Danie Small to give evidence for the State, as well as testimony by
ten of the eleven men raising the jurisdiction challenge.
Only one of the eleven, John
Mazila Tembwe, did not testify to tell the court about the circumstances of
his return to Namibia.
One of the other men in the dock
with him, Hoster Simasiku Ntombo, told the Acting Judge on Wednesday this week
that Botswana officials transported him and Tembwe together to Namibia on
September 20 2002.
Both of them had been given
political asylum in Botswana before they were brought back to Namibia in
handcuffs and leg irons, Ntombo told the court.
The eleven are claiming that they
were abducted from Botswana, where they had been given the protection of
They are claiming that the
Botswana authorities had them arrested despite their refugee status, and
handed them over to Namibia, where they were then charged with high treason.
Seven of them were handed over to
Namibia on December 12 2003, two were handed over on September 20 2002, and
two on December 6 2002.
One of the two men handed over on
December 6 2002, Alex Mafwila Liswani, was the last witness to testify
His testimony could demonstrate
the difficulties that the eleven may face with their jurisdiction challenge.
All the evidence that Small
submitted on behalf of the State dealt with Namibia's reception of the eleven,
rather than the legality of the circumstances in which they were detained in
Botswana and handed over to Namibia.
According to the testimony that
Small led, Namibian officials only stood ready to receive the men after
Botswana decided to strip them of their refugee status and deport them.
Small did not delve into what had
happened on the Botswana side - and he may have powerful legal backing for
That support may be found in the
decision that the Supreme Court took in July last year.
It ruled that a similar
jurisdiction challenge raised by 13 Caprivi high treason suspects who were
then on trial in the High Court at Grootfontein should not have succeeded in
In a majority decision by three of
the five Supreme Court judges, the court accepted that there was a legal
principle that one country's courts would not sit in judgement on acts that
another country's Government had performed within the other country's
In an alleged cross-border
abduction case, the Supreme Court's decision indicated, the courts of a
country that receives a suspect from another country would decline to try that
suspect only if it is shown that the receiving country's authorities broke
their own laws, or international law, by intruding onto the other country's
territory or by encouraging the other country to break its own laws.
One of the 13 treason suspects
whose surrender to Namibia was judged to have been legal by the Supreme Court
was Osbert Mwenyi Likanyi.
He was handed over together with
Liswani, the last witness to testify yesterday, and Boster Samuele, another of
the eleven who raised the latest jurisdiction challenge.
Liswani remarked at one stage in
his testimony on Wednesday that he was disappointed that the Botswana officers
who had arrested him were not at court to give evidence.
Hoster Ntombo made a similar
comment in his testimony.
Diamond Salufu stated the same on
Tuesday, but added: "It's not a fair trial to be tried without the police
officer who arrested you."
He was supposed to have been given
a chance to raise his objections against being handed over to Namibia in a
court in Botswana, and not only in Namibia, Salufu said.
According to evidence that Small
presented to the court, Botswana's authorities decided to revoke the eleven's
refugee status because they had returned to Namibia several times while they
were supposed to be seeking protection as refugees in Botswana.
All ten suspects who testified
But without direct evidence from
Botswana, and with the guidance of last year's Supreme Court's decision, their
lawyers may have their work cut out for them when they argue their case next