* 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
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
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
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
"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
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.