Split Supreme Court rules Caprivi 13 must face trial

ALLEGED Caprivi Liberation Army commander John Samboma and 12 fellow high treason suspects are heading back to the dock in the High Court at Grootfontein.

The prospect of freedom and indemnity from prosecution that Samboma and his co-accused won in the High Court at Grootfontein on February 23, when they were discharged from the Caprivi high treason case, was lost in the Supreme Court yesterday. It was a narrow loss for the 13 and a narrow win for the high treason case prosecution, though.In a split decision, Namibia’s highest court set aside Judge Elton Hoff’s almost five-month-old judgement, in which he had ruled that the irregular manner in which the 13 were brought before court meant that the court did not have jurisdiction over them.The Supreme Court was almost evenly divided yesterday:three judges agreed that Judge Hoff had erred in his ruling and two found themselves mostly in agreement with Judge Hoff’s ruling.All five judges who heard the State’s appeal against Judge Hoff’s ruling wrote judgements, making the judgements in this appeal probably the most extensively-reasoned in the Supreme Court since Independence.But in the end it turned out that acting Judge of Appeal Fred Chomba delivered the decisive swing vote in favour of the State.He sided with acting Judges of Appeal Simpson Mtambanengwe and Mavis Gibson, who both ruled that the State’s appeal against Judge Hoff’s decision had to be allowed and that the 13 had to be sent back to the High Court at Grootfontein for trial.The minority consisted of acting Chief Justice Johan Strydom and acting Judge of Appeal Bryan O’Linn.They both ruled that the State’s appeal in respect of only one of the 13, Charles Kalipa Samboma, had to succeed, but opted to affirm Judge Hoff’s ruling that his court did not have jurisdiction over the other 12.FROM DEFEAT TO VICTORYWhen Judge Hoff delivered his verdict in February on the jurisdiction challenge raised by the 13, the dock in the High Court at Grootfontein erupted in applause and cheers from the 13 and their 107 co-accused.On the prosecution side of the courtroom, there was a stunned silence and gloomy expressions.But not so yesterday.This time, it was the turn of the members of the prosecution team to celebrate.As acting Chief Justice Strydom left the courtroom, there was a spontaneous exchange of embraces and handshakes between Deputy Prosecutor General Herman January and public prosecutors Corelie Barnard and Taswald July.The glum expressions of five months ago were replaced by smiles.January pronounced himself “very relieved, very pleased” afterwards.”It’s been a long battle,” he remarked, but added that it had been worthwhile in the end.Yesterday’s judgements mark the end of the legal line for a process that started near the end of October last year.Since then, the 13’s challenge has repeatedly pushed back the starting date for the court case against the Caprivi high treason trialists, with August 9 now set as the trial’s kick-off date.Patrick Kauta, the defence team member who argued the appeal before the Supreme Court, was not present yesterday.He was at Grootfontein, consulting with the high treason accused.Jorge Neves stood in for him.Neves declined to reveal whether the defence was contemplating bringing any other preliminary applications before the proper start of the trial.A MATTER OF PROOFYesterday’s pronouncements from the Supreme Court ran to almost 300 typewritten pages.Ultimately, the crucial question on which the five judges were divided was whether Judge Hoff had been correct in finding that the Namibian authorities had not merely been passive bystanders when the Zambian and Botswana authorities handed over the 13 to Namibia on five separate occasions between August 1999 and December 2002.Judge Hoff found that there was no proof that the Namibian authorities had connived or colluded with their Zambian or Botswana counterparts to have the 13 abducted from those countries.He, however, found that informal requests from Namibian officials for the handing over of the 13 had tainted their eventual transfer, and ruled that they had been delivered to Namibia through a process of “disguised extradition” in which Botswana’s and Zambia’s laws had not been adhered to.But in Acting Judge of Appeal Mtambanengwe’s view, there had been no proof that such informal requests from Namibia had prompted the handing over of the 13 and the circumvention of the other two countries’ extradition laws.The result was that Namibia could not be found to have been in breach of international law, and that the High Court thus did not have grounds to decline to exercise its jurisdiction over the 13.Acting Judge of Appeal Gibson, and, crucially, acting Judge of Appeal Chomba concurred.Jeremy Gauntlett, SC, argued the appeal on behalf of the State, with the assistance of January and a colleague of Gauntlett’s from Cape Town, David Borgström.Kauta was the 13’s only counsel in the appeal.It was a narrow loss for the 13 and a narrow win for the high treason case prosecution, though.In a split decision, Namibia’s highest court set aside Judge Elton Hoff’s almost five-month-old judgement, in which he had ruled that the irregular manner in which the 13 were brought before court meant that the court did not have jurisdiction over them.The Supreme Court was almost evenly divided yesterday:three judges agreed that Judge Hoff had erred in his ruling and two found themselves mostly in agreement with Judge Hoff’s ruling.All five judges who heard the State’s appeal against Judge Hoff’s ruling wrote judgements, making the judgements in this appeal probably the most extensively-reasoned in the Supreme Court since Independence.But in the end it turned out that acting Judge of Appeal Fred Chomba delivered the decisive swing vote in favour of the State.He sided with acting Judges of Appeal Simpson Mtambanengwe and Mavis Gibson, who both ruled that the State’s appeal against Judge Hoff’s decision had to be allowed and that the 13 had to be sent back to the High Court at Grootfontein for trial.The minority consisted of acting Chief Justice Johan Strydom and acting Judge of Appeal Bryan O’Linn.They both ruled that the State’s appeal in respect of only one of the 13, Charles Kalipa Samboma, had to succeed, but opted to affirm Judge Hoff’s ruling that his court did not have jurisdiction over the other 12.FROM DEFEAT TO VICTORYWhen Judge Hoff delivered his verdict in February on the jurisdiction challenge raised by the 13, the dock in the High Court at Grootfontein erupted in applause and cheers from the 13 and their 107 co-accused.On the prosecution side of the courtroom, there was a stunned silence and gloomy expressions.But not so yesterday.This time, it was the turn of the members of the prosecution team to celebrate.As acting Chief Justice Strydom left the courtroom, there was a spontaneous exchange of embraces and handshakes between Deputy Prosecutor General Herman January and public prosecutors Corelie Barnard and Taswald July.The glum expressions of five months ago were replaced by smiles.January pronounced himself “very relieved, very pleased” afterwards.”It’s been a long battle,” he remarked, but added that it had been worthwhile in the end.Yesterday’s judgements mark the end of the legal line for a process that started near the end of October last year.Since then, the 13’s challenge has repeatedly pushed back the starting date for the court case against the Caprivi high treason trialists, with August 9 now set as the trial’s kick-off date.Patrick Kauta, the defence team member who argued the appeal before the Supreme Court, was not present yesterday.He was at Grootfontein, consulting with the high treason accused.Jorge Neves stood in for him.Neves declined to reveal whether the defence was contemplating bringing any other preliminary applications before the proper start of the trial.A MATTER OF PROOFYesterday’s pronouncements from the Supreme Court ran to almost 300 typewritten pages.Ultimately, the crucial question on which the five judges were divided was whether Judge Hoff had been correct in finding that the Namibian authorities had not merely been passive bystanders when the Zambian and Botswana authorities handed over the 13 to Namibia on five separate occasions between August 1999 and December 2002.Judge Hoff found that there was no proof that the Namibian authorities had connived or colluded with their Zambian or Botswana counterparts to have the 13 abducted from those countries.He, however, found that informal requests from Namibian officials for the handing over of the 13 had tainted their eventual transfer, and ruled that they had been delivered to Namibia through a process of “disguised extradition” in which Botswana’s and Zambia’s laws had not been adhered to.But in Acting Judge of Appeal Mtambanengwe’s view, there had been no proof that such informal requests from Namibia had prompted the handing over of the 13 and the circumvention of the other two countries’ extradition laws.The result was that Namibia could not be found to have been in breach of international law, and that the High Court thus did not have grounds to decline to exercise its jurisdiction over the 13.Acting Judge of Appeal Gibson, and, crucially, acting Judge of Appeal Chomba concurred.Jeremy Gauntlett, SC, argued the appeal on behalf of the State, with the assistance of January and a colleague of Gauntlett’s from Cape Town, David Borgström.Kauta was the 13’s only counsel in the appeal.