Court shields treason witness from media glare

THE third prosecution witness in the Caprivi high treason trial in the High Court at Grootfontein will have neither a name nor a face in media reports.

“The printed and electronic media shall not publish in any manner whatsoever the name of the third State witness, neither any photograph of such witness,” Judge Elton Hoff ordered on Friday, when he gave his ruling on an application by State Advocate Taswald July for the witness’s identity not to be revealed. With no rulings on such an application in terms of the Criminal Procedure Act reported in Namibia since 1990, Judge Hoff has broken new ground with the decision.A thread that has run through several of the judgements that Judge Hoff has given since his appointment to the High Court in early 2001 – being a demonstrated consciousness of Namibia’s apartheid past before Independence, coupled with an acknowledgement of the challenges posed by current, often difficult realities – again made an appearance in the ruling on the protection of the witness’s identity.In that regard, Judge Hoff stated:”We should vigorously resist in this era of constitutional democracy a return to the dark and shadowy days of our past where oppressive security legislation with its cloak-and-dagger methods were the order of the day and when one’s accusers were often unknown.”At the same time, though, he noted that “we should also guard against another kind of darkness descending upon us – the darkness of the scourge of crime”.The interests of justice were judged to be of paramount importance in the decision he handed down on Friday.Judge Hoff remarked that the primary objective of the part of the Criminal Procedure Act that gives a court the power to prohibit the publication of a witness’s name was “to ensure that justice is done and to encourage witnesses who do their civic duty by testifying in court, to do so without fear of reprisals”.Judge Hoff acknowledged defence counsel Percy McNally’s argument that an order forbidding the publication of the witness’s name and photograph in the media would be ineffective.That is because the public would still be able to attend the court proceedings, and would be able to communicate the witness’s identity to family members of the 120 accused, from whom it was claimed the witness feared reprisals if he testified as a prosecution witness.Even though an order banning the publication of the witness’s name would not be entirely effective, the fact that some measure of protection could be afforded and that the fears of the witness could be allayed, favoured the granting of the order, since it would aid the administration of justice, Judge Hoff stated.He explained that among the factors that he had weighed up were the witness’s own testimony about what he had perceived as threats by some of his family members who were opposed to him testifying for the prosecution, as well as evidence that he was regarded as a key State witness.He had also taken into account the allegations against the 120 accused, and noted in this regard:”It is the first time in the recent legal history of Namibia that so many accused persons are being charged with so many charges of such serious nature, (in) an trial of immense magnitude attracting national as well as international attention.”Also taken into account, according to Judge Hoff, was “the atmosphere of the case, which from the inception of the trial in this court can be described as emotionally charged with clear political undertones”.Bar any surprises, the witness at the centre of Judge Hoff’s order is set to start with his testimony tomorrow.With no rulings on such an application in terms of the Criminal Procedure Act reported in Namibia since 1990, Judge Hoff has broken new ground with the decision.A thread that has run through several of the judgements that Judge Hoff has given since his appointment to the High Court in early 2001 – being a demonstrated consciousness of Namibia’s apartheid past before Independence, coupled with an acknowledgement of the challenges posed by current, often difficult realities – again made an appearance in the ruling on the protection of the witness’s identity.In that regard, Judge Hoff stated:”We should vigorously resist in this era of constitutional democracy a return to the dark and shadowy days of our past where oppressive security legislation with its cloak-and-dagger methods were the order of the day and when one’s accusers were often unknown.”At the same time, though, he noted that “we should also guard against another kind of darkness descending upon us – the darkness of the scourge of crime”.The interests of justice were judged to be of paramount importance in the decision he handed down on Friday.Judge Hoff remarked that the primary objective of the part of the Criminal Procedure Act that gives a court the power to prohibit the publication of a witness’s name was “to ensure that justice is done and to encourage witnesses who do their civic duty by testifying in court, to do so without fear of reprisals”.Judge Hoff acknowledged defence counsel Percy McNally’s argument that an order forbidding the publication of the witness’s name and photograph in the media would be ineffective.That is because the public would still be able to attend the court proceedings, and would be able to communicate the witness’s identity to family members of the 120 accused, from whom it was claimed the witness feared reprisals if he testified as a prosecution witness.Even though an order banning the publication of the witness’s name would not be entirely effective, the fact that some measure of protection could be afforded and that the fears of the witness could be allayed, favoured the granting of the order, since it would aid the administration of justice, Judge Hoff stated.He explained that among the factors that he had weighed up were the witness’s own testimony about what he had perceived as threats by some of his family members who were opposed to him testifying for the prosecution, as well as evidence that he was regarded as a key State witness.He had also taken into account the allegations against the 120 accused, and noted in this regard:”It is the first time in the recent legal history of Namibia that so many accused persons are being charged with so many charges of such serious nature, (in) an trial of immense magnitude attracting national as well as international attention.”Also taken into account, according to Judge Hoff, was “the atmosphere of the case, which from the inception of the trial in this court can be described as emotionally charged with clear political undertones”.Bar any surprises, the witness at the centre of Judge Hoff’s order is set to start with his testimony tomorrow.