New Era (Windhoek)

13 February 2013

Namibia: Acquittals in Treason Trial Due to Lack of Proper ID

Windhoek — The lack of proper identification for 43 of the 89 people discharged in the Caprivi secessionist trial was the main cause for their acquittal on Monday.

This emerged from closer scrutiny of the lengthy judgment delivered by Judge Elton Hoff on Monday when he acquitted Vasco Inambao Lyonga, Jacob Linus Musondeke, Chombo Elvin Simon Kauhano, Stephen Kandela Mashando, Linus Kashala Luseso, Richwell Kuliselo Mahupelo, Rosco Matengu Makapa, Moven Kawana Chombo, O'Brien Sinkolela Mwananyambe, Joseph Omo Mufuhi, Boswell Adams Muyumbano, Calvin Liseli Malumo, Chris Sitali Mushe, Tobias Muswabe Kananga, John Tibiso Masake (Mutalife), Isaya Shaft Kamwanga, Phelem Mboozi Mutuwangele, Richard Masupa Mungulike, Fred Maemelo Ziezo, Gilbert Kasiyana Poshowe, Fredrik Kabatondwa Lutuhezi, Victor Tumoni Lunyandile, Ernest Lolisa Lifasi and Charles Kalipa Samboma.

Others are Kisko Twaimango Sakusheka, Joseph Kabuyana Kabuyana, Ernest Salufu Samunzala, Thaddeus Sibonwa Mundube, Francois Liyemo Mubita, Chrispin Saili Samahili, Linus Chombo Chombo, Stephen Milinga Ntelamo, Molicious Simone, George Lifumbela Mutanimiye, Kennedy Simasiku Chunga, Agry Simasiku Muamba, Michael Mundia Mubyana, Wilson Mutumuswana, Oscar Gilson Libuo, Richard Likezo Saweke, Matengu Elvis Puteho, Simon Max Mubita and Genese John Kabotana.

All 43 were discharged after Judge Hoff found the State did not prove beyond a reasonable doubt that it had a case against them during the marathon judgment that lasted over eight hours on Monday. The judgment comprised a hefty 153-pages, which the Judge read out in full to family members of the accused and interested members of the public who packed the Prison Court to the rafters.

Most of the accused had been in custody for close to 13 years.

They were part of 122 people originally charged with the failed secession attempt in the Caprivi Region on August 02, 1999. After the State closed its case on February 07, 2012, the lawyers for 81 of the suspected secessionists lodged an application in terms of Rule 174 of the Criminal Procedure Act 51 of 1977 for the discharge of their clients, since there was no evidence against them which required a reply from them. The Act states an accused can be discharged at the end of the prosecution's case if there is no evidence before the court showing the accused committed the offence he/she is being charged with.

However sixty-five of the original 122 of which twelve had since died will still have to answer to the charges they face, Judge Hoff ordered.

Included in the 65 are John Samboma, who is believed to be an alleged commander of the so-called Caprivi Liberation Army (CLA), and former opposition National Assembly MP Geoffrey Mwilima. Other suspects that will still have to answer include Gabriel Mwilima, George Kasanga and Barnard Mucheka. It is now up to the remaining accused to either testify in their own defence or opt to make use of their right to remain silent.

At the beginning of their trial in the High Court at Grootfontein in October 2003 all of the accused pleaded not guilty to all the charges they face, which include 278 charges among them high treason, nine counts of murder and 240 counts of attempted murder, two counts of public violence, five counts of contravening the Arms and Ammunitions Act, ten counts of malicious damage to property, one count of theft of diesel, one count of theft of two R5 rifles, two counts of illegal exit from Namibia, two counts of illegal entry into Namibia, two counts of using a vehicle without the consent of the owner and an alleged conspiracy to secede the Caprivi Region from the rest of Namibia.

The accused were also accused of having played a role in the bloody attacks on the Katima Mulilo Police Station and the Namibian Broadcasting Corporation's (NBC) regional office on August 02, 1999. Judge Hoff said in his judgment that "it is common cause that no identification parades were held at any stage during the investigation of this case. This was placed in issue at the inception of the trial. In the absence of any identification parades [the] State witnesses were allowed to identify the accused persons in court whom at any stage of the trial exceeded 100 individuals."

He emphasised that while the names of the individuals were mentioned and corresponded with the names on the charge sheet, many witnesses were, when given the opportunity to point out individuals in court, unable to point out the individual referred to. While it was submitted on behalf of the State that it was not imperative to hold identification parades since identification was never put in dispute during the investigation stage of the case, the admissibility of dock identification remains the prerogative of the court, Judge Hoff said.

The Judge discussed the merits of all of the applicants and the various evidence brought against them and the reasons why they are either discharged or not and in most cases of discharge found that proper identification was not proved. In the meantime Patrick Kauta, one of the defence lawyers representing the 43 high treason accused acquitted on Monday says though the acquitted suspects cannot sue the State for being imprisoned for 13 years they could sue the State for what he termed "malicious prosecution." Kauta said the matter was complex and will depend on what the acquitted individuals want to sue for.

Further efforts to get more clarity on whether the acquitted individuals can sue were met with a stony silence by various authorities in the legal field who were approached.

Deputy Prosecutor-General, Herman January, represented the State, while Judge Hoff presided.

The defence lawyers were Patrick Kauta, George Neves, Clive Kavendjii, Profysen Muluti, Jonathan Samukange, Victor Kachaka, Percy McNally and Hennie Kruger.

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