* WERNER MENGES

26. Oct. 2005

ELEVEN of the 12 men facing charges in the second Caprivi high treason trial yesterday failed with their challenge against the High Court's jurisdiction to try them.

The 11 raised a special plea in which they disputed the court's power to try them when the first phase of their trial started before Acting Judge John Manyarara in the High Court in Windhoek on September 19.

In a judgement that brought a 15-day hearing on their special plea to a close yesterday, Acting Judge Manyarara found that the prosecution had proven that all 11 had been properly and lawfully brought before the court.

Finding that the court therefore has jurisdiction to try the eleven, he dismissed their special pleas.

In terms of these pleas, ten of the 11 claimed that after they had been granted political asylum in Botswana, that country's authorities unlawfully arrested them and handed them over to the Namibian Police - a step which the ten claimed was an act of abduction and in breach of international law.

In such circumstances, they claimed, they had not been properly and lawfully arrested and arraigned before a court with the jurisdiction to try them.

Another one of the 11, John Mazila Tembwe, likewise claimed that he had been arrested by the Botswana Police and handed over to the Namibian authorities after he had fled to Botswana as a political refugee.

He claimed that he was not given a fair trial to establish his refugee status, that he was handed over to the Namibian authorities without any legal process whatsoever, and that the Botswana Police's act of handing him over to the Namibian authorities was unlawful and a violation of his human rights.

The thrust of the arguments of their lawyers - Zagrys Grobler, who represents Tembwe, and Nate Ndauendapo, representing the rest of the 12 men arraigned before the court - was that both the Namibian and Botswana governments had acted in flagrant breach of their own domestic laws and international law, Acting Judge Manyarara said in his judgement.

The defence lawyers argued that because of that, the court should decline jurisdiction on the ground that the prosecution had not come to court with clean hands.

According to the legal principles that apply to these sort of situations not just in Namibia, but also in South Africa, Zimbabwe and in general in Roman and Roman-Dutch law, the State's hands would not be clean if it had been involved in a cross-border abduction, Acting Judge Manyarara noted.

"The operative term is 'abduction'," he went on to state, before making a finding that proved to be fatal for the 11's jurisdiction challenge: "The evidence led by the State in the present matter is that Namibia played no part in the arrest and deportation to Namibia of the accused."

According to the evidence that Deputy Prosecutor-General Danie Small, assisted by Deputy Prosecutor-General Annemarie Lategan, presented to the court, the Botswana authorities decided to return the eleven to Namibia after revoking their refugee status in Botswana, the Acting Judge also noted.

The 11 were returned to Namibia in three separate groups, with two of the suspects, including Tembwe, being returned on September 20 2002, two on December 6 2002, and seven on December 12 2003.

According to what Namibian officials were informed about the deportation of the seven men who were returned to Namibia on December 12 2003, the Botswana authorities decided to revoke their refugee status because it had found that they had violated the conditions of their stay in Botswana as well as the United Nations Convention Governing the Status of Refugees by having returned to Namibia after they had been given refugee status in Botswana.

All of the 11 who testified during the hearing on their special plea - only Tembwe did not give evidence - denied that they had left Botswana to visit Namibia again between the time that they were given refuge in that country and the time that they were deported.

Part of the allegations that they are set to face at their trial is that the purpose of those alleged return visits to the Caprivi Region were so that they could take part in activities aimed at seceding the Caprivi Region from the rest of Namibia.

Acting Judge Manyarara was not convinced by their denials of having returned to Namibia after they were classified as refugees in Botswana, though - but in the same breath stated that this evidence was irrelevant in any event.

"The present enquiry is whether the Republic of Namibia played any part or connived in the decision of the Republic of Botswana to deport the accused," Acting Judge Manyarara stated.

"The evidence shows conclusively that it did not.

The decision was entirely that of Botswana in the legitimate exercise of its powers as a sovereign state.

Botswana merely informed Namibia of the decision and provided Namibia with lists of the persons to be deported(.) "The accused happened to be on the lists and the Namibian immigration officers duly handed them over to the police who arrested them on Namibian soil and charged them with high treason."

By the time that he made this statement in his two-and-a-half hour-long judgement, he had already also stated: "I am satisfied that each and every one of the accused was handed over to the Namibian authorities by the Botswana authorities without any intervention by or connivance of the Namibian authorities."

The main trial of the 12 men indicted before Acting Judge Manyarara is now scheduled to start on February 13 next year.

If any of the 11 whose special pleas were dismissed yesterday wants to appeal against the ruling, they may return to court on November 30 for the hearing of an application for leave to appeal to the Supreme Court.

The 12 have been in custody since their return from Botswana.

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