No relief for ailing treason accused

AN attempt to get a court order that would have directed the Police and prison authorities to transfer seriously ill high treason accused Fabian Samiyasa to Katima Mulilo because of his state of health came to nought in the High Court on the grounds of Windhoek Central Prison last week.

The law as it stands in Namibia at the moment does not give the court the power to order where an accused person should be kept in custody, Judge Elton Hoff remarked on Thursday when he gave his ruling on an application that Samiyasa’s defence counsel, Winnie Sithole Mwenda, had brought before him two weeks earlier. When she applied for an order that Samiyasa be transferred to Katima Mulilo, Sithole Mwenda informed the court that Samiyasa is so ill that several doctors who have examined him have recommended that he be sent to Katima Mulilo so that he can be closer to his family for their emotional support.The 45-year-old Samiyasa has been absent for about a year from the trial in which he and 118 co-accused are facing a total of 278 charges in connection with allegations that they had been involved in an alleged conspiracy to secede the Caprivi Region from Namibia.Two medical reports from doctors who have examined Samiyasa were provided to the court during the hearing of Sithole Mwenda’s application.The doctors diagnosed Samiyasa as terminally ill, and stated that his condition was continuing to deteriorate.The doctors – including two doctors who had examined Samiyasa at the request of the prosecution – were unanimous in recommending that he should be sent back to Katima Mulilo so that he can be closer to his family and would be able to receive emotional and other support from them.Sithole Mwenda brought her application in terms of a section of the Criminal Procedure Act that sets out the circumstances in which proceedings in a criminal trial may take place in the absence of an accused person.That section of the Act, Judge Hoff noted in his judgement, empowers a court to authorise the absence of an accused person – for instance in the case of illness – from proceedings in the person’s trial.While the version of the Criminal Procedure Act that applies in South African has a part that gives courts the discretion to order where an accused person should be kept in custody, the Namibian version of the Act does not contain such a provision, Judge Hoff also noted.He said the court has much empathy with Samiyasa’s condition, but because of what the Criminal Procedure Act states, it appeared to him that the court would be acting outside its powers if it were to make an order that Samiyasa should be transferred to Katima Mulilo.Sithole Mwenda told The Namibian later on Thursday that she had gone to see Samiyasa in Windhoek Central Prison to explain Judge Hoff’s ruling to him.She said he is still being treated in the prison clinic, and it was clear to her that he is a very ill man.He has lost a lot of weight and could not walk without support, she said.Samiyasa was employed in the then Ministry of Agriculture, Water and Rural Development when he became one of scores of people to be arrested in the wake of surprise armed attacks that alleged secessionists are accused of having carried out against targets at Katima Mulilo on August 2 1999.So far during the marathon trial before Judge Hoff, Samiyasa’s name has mainly been mentioned by witnesses who claimed that he was present at a gathering point in the Makanga area, some 70 kilometres southwest of Katima Mulilo, where witnesses claimed people who were to take part in the planned attacks came together in preparation for the attacks on the evening before August 2 1999.A Tata truck with a ‘GRN’ registration number which was driven by Samiyasa was also at the meeting point at Makanga, and was used by Samiyasa to transport some of the would-be attackers to Katima Mulilo, some prosecution witnesses have also so far claimed in testimony heard in the course of the trial.However, none of these witnesses have been able to point out Samiyasa in court as the person that they were talking about when they mentioned his name in their evidence.Twelve of the men who had initially been charged in the main Caprivi high treason case have in the meantime died in custody.The last of these passed away in January last year.The trial was adjourned on Thursday for the court’s first recess of the year.Proceedings are scheduled to resume on May 21.When she applied for an order that Samiyasa be transferred to Katima Mulilo, Sithole Mwenda informed the court that Samiyasa is so ill that several doctors who have examined him have recommended that he be sent to Katima Mulilo so that he can be closer to his family for their emotional support.The 45-year-old Samiyasa has been absent for about a year from the trial in which he and 118 co-accused are facing a total of 278 charges in connection with allegations that they had been involved in an alleged conspiracy to secede the Caprivi Region from Namibia.Two medical reports from doctors who have examined Samiyasa were provided to the court during the hearing of Sithole Mwenda’s application.The doctors diagnosed Samiyasa as terminally ill, and stated that his condition was continuing to deteriorate.The doctors – including two doctors who had examined Samiyasa at the request of the prosecution – were unanimous in recommending that he should be sent back to Katima Mulilo so that he can be closer to his family and would be able to receive emotional and other support from them.Sithole Mwenda brought her application in terms of a section of the Criminal Procedure Act that sets out the circumstances in which proceedings in a criminal trial may take place in the absence of an accused person.That section of the Act, Judge Hoff noted in his judgement, empowers a court to authorise the absence of an accused person – for instance in the case of illness – from proceedings in the person’s trial.While the version of the Criminal Procedure Act that applies in South African has a part that gives courts the discretion to order where an accused person should be kept in custody, the Namibian version of the Act does not contain such a provision, Judge Hoff also noted.He said the court has much empathy with Samiyasa’s condition, but because of what the Criminal Procedure Act states, it appeared to him that the court would be acting outside its powers if it were to make an order that Samiyasa should be transferred to Katima Mulilo.Sithole Mwenda told The Namibian later on Thursday that she had gone to see Samiyasa in Windhoek Central Prison to explain Judge Hoff’s ruling to him.She said he is still being treated in the prison clinic, and it was clear to her that he is a very ill man.He has lost a lot of weight and could not walk without support, she said.Samiyasa was employed in the then Ministry of Agriculture, Water and Rural Development when he became one of scores of people to be arrested in the wake of surprise armed attacks that alleged secessionists are accused of having carried out against targets at Katima Mulilo on August 2 1999.So far during the marathon trial before Judge Hoff, Samiyasa’s name has mainly been mentioned by witnesses who claimed that he was present at a gathering point in the Makanga area, some 70 kilometres southwest of Katima Mulilo, where witnesses claimed people who were to take part in the planned attacks came together in preparation for the attacks on the evening before August 2 1999.A Tata truck with a ‘GRN’ registration number which was driven by Samiyasa was also at the meeting point at Makanga, and was used by Samiyasa to transport some of the would-be attackers to Katima Mulilo, some prosecution witnesses have also so far claimed in testimony heard in the course of the trial.However, none of these witnesses have been able to point out Samiyasa in court as the person that they were talking about when they mentioned his name in their evidence.Twelve of the men who had initially been charged in the main Caprivi high treason case have in the meantime died in custody.The last of these passed away in January last year.The trial was adjourned on Thursday for the court’s first recess of the year.Proceedings are scheduled to resume on May 21.