History to be made in Caprivi treason case on February 23

THE 13 Caprivi high treason accused who are disputing the High Court’s jurisdiction over them are to hear on February 23 whether their challenge to the court’s powers has succeeded.

Whichever way it goes, Judge Elton Hoff’s ruling in 11 days’ time will make Namibian legal history. His judgement will mark the first time since Independence that the High Court has been required to rule whether it has the power to try people who claim they were unlawfully abducted from another country.The challenge to the court’s jurisdiction is based on a centuries-old principle from Roman Dutch law, in which Namibian law is rooted, to the effect that a court should refuse to hear a case against any accused brought before it through a breach of international law.As expected, the leading counsel from the opposing sides in the case stuck to their guns when putting their final arguments yesterday.Deputy Prosecutor General Herman January argued that the State had proved the 13 were not abducted to Namibia, and that the High Court thus had jurisdiction over them.Patrick Kauta, for the defence team, submitted that the State’s own witnesses had ended up proving defence claims that the 13 were present in Namibia, and before the court, due to of a breach of international law so that the High Court should decline jurisdiction.”On the evidence as a whole, it is clear that the Namibian Government, or Namibian authorities, are before this court with clean hands,” January stated while wrapping up his argument.Kauta drew the diametrically opposite conclusion: “The evidence before you, my Lord, taken as a whole, clearly proves the defence case”.He hammered home the point that international law was violated on five occasions when suspects among the group of 13 had been handed over to the Namibian authorities by their Zambian or Botswana counterparts.Even when they agreed on the facts surrounding some of the handovers – for instance, when five of the 13 were transferred to the custody of Namibian Police officers at Zambia’s Sesheke airfield on August 7 1999 – January and Kauta fell out over the legality of such acts.January told the Judge that Kauta was confusing “apprehension or arrest” with the handover of people on foreign soil.The evidence before the court was that no arrest or apprehension took place on foreign soil, he said.Kauta differed, saying: “There for you, my Lord, is the breach of international law. There for you, my Lord, is a classic case of abduction”.According to Kauta, breaches occurred not only of international law but of Namibia’s own law, in the form of the Police Act, when Police officers ventured onto Zambian territory.With that, he asserted, the Police had illegally extended their powers onto foreign territory.The same applied in the handover of Osbert Mwenyi Likanyi who, according to the State’s own witnesses, was handed over to Namibia by officials from Botswana, inside Botswana, on December 6 2002.Even if the Zambian authorities had surrendered people to Namibia voluntarily, Kauta said, that act would have had no legal force if it had taken place in Zambia.Had they been surrendered by the Zambian or Botswana government in Katima Mulilo, though, a Namibian court would have had jurisdiction, he added.January agreed that if one country infringed on the sovereignty of another – such as when its security forces crossed into another country to arrest someone and return him to their country – it would be breaking international law.But, he continued, witnesses before this court had stated clearly in evidence that they did not carry out arrests on foreign soil.However, if Namibian officials had received Namibian citizens on foreign soil, this would not have contravened international law.Judge Hoff has a week and a half to wade through these conflicting submissions and clashing interpretations before he brings down his historic ruling.His judgement will mark the first time since Independence that the High Court has been required to rule whether it has the power to try people who claim they were unlawfully abducted from another country. The challenge to the court’s jurisdiction is based on a centuries-old principle from Roman Dutch law, in which Namibian law is rooted, to the effect that a court should refuse to hear a case against any accused brought before it through a breach of international law. As expected, the leading counsel from the opposing sides in the case stuck to their guns when putting their final arguments yesterday. Deputy Prosecutor General Herman January argued that the State had proved the 13 were not abducted to Namibia, and that the High Court thus had jurisdiction over them. Patrick Kauta, for the defence team, submitted that the State’s own witnesses had ended up proving defence claims that the 13 were present in Namibia, and before the court, due to of a breach of international law so that the High Court should decline jurisdiction. “On the evidence as a whole, it is clear that the Namibian Government, or Namibian authorities, are before this court with clean hands,” January stated while wrapping up his argument. Kauta drew the diametrically opposite conclusion: “The evidence before you, my Lord, taken as a whole, clearly proves the defence case”. He hammered home the point that international law was violated on five occasions when suspects among the group of 13 had been handed over to the Namibian authorities by their Zambian or Botswana counterparts. Even when they agreed on the facts surrounding some of the handovers – for instance, when five of the 13 were transferred to the custody of Namibian Police officers at Zambia’s Sesheke airfield on August 7 1999 – January and Kauta fell out over the legality of such acts. January told the Judge that Kauta was confusing “apprehension or arrest” with the handover of people on foreign soil. The evidence before the court was that no arrest or apprehension took place on foreign soil, he said. Kauta differed, saying: “There for you, my Lord, is the breach of international law. There for you, my Lord, is a classic case of abduction”. According to Kauta, breaches occurred not only of international law but of Namibia’s own law, in the form of the Police Act, when Police officers ventured onto Zambian territory. With that, he asserted, the Police had illegally extended their powers onto foreign territory. The same applied in the handover of Osbert Mwenyi Likanyi who, according to the State’s own witnesses, was handed over to Namibia by officials from Botswana, inside Botswana, on December 6 2002. Even if the Zambian authorities had surrendered people to Namibia voluntarily, Kauta said, that act would have had no legal force if it had taken place in Zambia. Had they been surrendered by the Zambian or Botswana government in Katima Mulilo, though, a Namibian court would have had jurisdiction, he added. January agreed that if one country infringed on the sovereignty of another – such as when its security forces crossed into another country to arrest someone and return him to their country – it would be breaking international law. But, he continued, witnesses before this court had stated clearly in evidence that they did not carry out arrests on foreign soil. However, if Namibian officials had received Namibian citizens on foreign soil, this would not have contravened international law. Judge Hoff has a week and a half to wade through these conflicting submissions and clashing interpretations before he brings down his historic ruling.