12 June 2012

Namibia: Treason Suspect Wins Claim Over Detention

ONE of the men facing charges in the main Caprivi high treason trial has scored a small victory - but coupled with a bigger defeat - in his civil claim against the Minister of Safety and Security in connection with his arrest, detention and alleged assaults in Police custody.

In a judgement delivered in the High Court in Windhoek on Friday, Judge President Petrus Damaseb dismissed the damages claims in which high treason suspects John Mpanse Lubilo, John Genese Kabotana, and Ernest Lifasi Lolisa wanted the Minister of Safety and Security to be ordered to pay them each hundreds of thousands of dollars for alleged illegal arrest and assaults which they claimed to have suffered at the hands of Police officers.

Kabotana however succeeded with his claim over unlawful detention, which was based on the fact that the Police failed to ensure that he appeared before a magistrate in court within 48 hours after his arrest. Judge President Damaseb awarded N$12 000 to Kabotana in that regard.

The Judge President's decision is the fifth judgement to have been handed down in the High Court on civil claims by the suspects in the treason trial. They have claimed millions of dollars from the ministers who were responsible for the Namibian Police and the Namibian Defence Force at the time that surprise separatist armed attacks in the Caprivi Region on August 2 1999 prompted a security force crackdown in that part of the country.

In all of the judgements the claims against the ministers were dismissed.

Dozens of similar claims have been settled out of court, with undisclosed amounts of money paid to plaintiffs who were tortured and assaulted in Police custody following their arrest.

Kabotana was arrested on September 1 1999. Instead of being taken to court two days later, which was a Friday, he made his first appearance before a magistrate only on the Monday after that.

Lubilo, who was arrested on August 30 1999, Lolisa, who was arrested on September 2 1999, and Kabotana each sued the Minister of Safety and Security for N$300 000 for having allegedly been assaulted while in Police custody. Lubilo and Kabotana also sued the Minister for N$80 000 each for alleged unlawful arrest, while Lolisa claimed N$50 000 from the minister for his alleged unlawful arrest.

In his judgement, the Judge President noted that Lubilo, Kabotana and Lolisa have been in custody since their arrest, with their trial having turned into the longest criminal trial in Namibia's history.

While one would naturally feel empathy for someone who has endured a long period of incarceration without his case having been finalised, that is no substitute for what is expected of them in a civil trial, which is to establish a prima facie case for their claims, he stated.

With respect to the arrest of the three men, witnesses told the court that the Police had gathered information from people who were suspected of having been involved in the separatist attacks and who implicated the three plaintiffs as having also been involved, the Judge President noted.

Based on this evidence, the Police had reasonable grounds to believe that the three men had been involved in serious offences and to arrest them as a result, he found.

On the claims over alleged assaults on the three men, he found that Lubilo was not a credible witness, as he had lied in material respects when he testified, Kabotana had failed to produce any credible evidence that he had been assaulted, and Lolisa, who demonstrated that he has an axe to grind over his arrest and continued detention, had also not been able to prove that he was assaulted.

On the Police's failure to ensure Kabotana's court appearance within 48 hours, the Judge President said: "An arrested person must be brought before court as a safeguard of their rights. It is before a judicial officer that they can demand to be given access to a lawyer as early as possible and to bring to the court's attention any untoward conduct from law enforcement officials."

Legal Assistance Centre lawyer Lynita Conradie represented the three men. George Coleman represented the Minister.

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