The Namibian (Windhoek)

19 February 2013

Namibia: Courts Outdo Themselves in Caprivi Trial

JUDGE Elton Hoff's ruling last week in the Caprivi treason trial in which he rubbished the case of the State in a lengthy, if historic, judgement has reassured Namibians that our criminal justice system is robust and unflinching in defence of the values enshrined in our Constitution.

The case against the accused is a matter of common cause. To wit, on the night of August 1 1999, a small band of gullible Namibians in pursuit of a hare-brained idea of Mishake Muyongo, a veteran parliamentarian, rose in armed revolt to redraw the boundaries of our country and fashion a new state, using the Caprivi Region as its basis.

Muyongo's rag-tag army attacked government establishments, among them the Katima Mulilo police station, the Sesheke border post, the NBC offices and the army base.

Our country's security forces were caught napping and flat-footed but when they woke from their slumber they arrested, in quick succession, more than 300 suspects. From the accounts of those released last week, it would appear as if the country's security forces acted with impunity and for the most part, as a law unto themselves.

Some suspects succumbed in prison, yet others were released with the government settling with them and paying undisclosed sums of money without admitting any wrongdoing on allegations of widespread and routine torture and maltreatment.

Save for acts of God, the State, primarily, shoulders the responsibility for the failure for the trial to proceed speedily for more than a decade after the arrests were made. This, surely, detracts from the type of society we have elected to fashion.

Last week Wednesday, the High Court pronounced 43 suspects innocent on all 278 charges including those of high treason, murder and sedition. With the release of Rodwell Kasika Mukwenda in August last year, only 67 of the original number are thus still in incarceration.

Among them is a small group which challenges the authority of the State of Namibia, and by extension, the writ of the Namibian justice system.

However, the high success rate of acquittals must give succour to those who have always argued that the State's case bordered on tribal profiling and/or political persecution.

By all accounts, the case will draw to a close this year. But that may turn out to be the easy part.

Already, taxpayers have spent a pretty penny on the defence of the accused and all indications are that most of the former inmates will sue for civil claims against the State as the released men make the painful trip back to families to pick up the pieces of their lives after an absence of more than a decade.

For the rest of us, this human drama raises the whole question of how a modern, democratic state balances the legitimate security concerns of the state versus the liberties and sanctity of individuals. How do state agents ensure scrupulous adherence to the respect for human dignity as enjoined by Article 8 of our republican Constitution?

Even more significantly, how do we ensure that when limitations are put upon fundamental freedoms - as during the State of Emergency in 1999 in the Caprivi Region, that such limitations "shall be of general application, shall not negate the essential content thereof, and shall not be aimed at a particular individual" as per Article 22 of our Constitution.

At the end of the day it is the citizens, and not the governments, who are the bulwarks in defence of our collective rights. Our continent, particularly, is a veritable graveyard of how often benevolent regimes have turned tyrants in a wink.

The treason trial poses for us the single most challenging development where rights violations may have occurred on a mass scale. The manner of how these are finally resolved will define the character of our people and the republic.

In delivering his judgement, Judge Hoff was clarion clear about the due process without which our legal system would be but a trinket in the hands of incorrigible or populist politicians. And it is for this reason that Namibians must draw lessons from what Pastor Martin Niemöller learnt in Nazi Germany, namely:

"First they came for the socialists, and I did not speak out because I was not a socialist

Then they came for the trade unionists, and I did not speak out because I was not a trade unionist

Then they came for the Jews, and I did not speak out because I was not a Jew

Then they came for me, and there was no one left to speak for me."

In the end then, freedom is cherished by all but also indivisible.

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