9 August 2017

Namibia: Supreme Court Reverses Key Judgment

Windhoek — Five judges of the Supreme Court reversed a previous judgment by the court relating to the jurisdiction of Namibian courts on accused persons brought into the country unlawfully by state security agents.

According to Chief Justice Peter Shivute, who wrote the judgment with concurrence from three other Supreme Court judges and one dissenting, Article 1 of the Constitution provides that the Republic of Namibia is established as a sovereign, secular, democratic and unitary state founded upon the principles of democracy, the rule of law and justice for all.

"The rule of law requires that even people accused of committing heinous crimes must be dealt with according to the law. Where a person is brought before court in violation of international law, the rule of law - a foundational principle of the Constitution - requires that a court critically examine the conduct of the law enforcement agency in securing the presence of the accused within the territorial jurisdiction of the court," Chief Justice Shivute emphasised.

This he said when he - with appeal judges Petrus Damaseb, Dave Smuts, Yvonne Mokgoro concurring and Acting Judge of Appeal Theo Frank dissenting - reversed a previous judgment by the Supreme Court that Namibian courts had jurisdiction to try Osbert Mwenyi Likanyi.

Frank reluctantly agreed to the order, as he is of the opinion it amounts to a "get out of jail free card" in respect of the very serious charges he would potentially be facing if he otherwise decided to voluntary return to Namibia.

"Instead of facing the prospects of remaining a refugee in Botswana or returning to Namibia and face charges, he can now remain in Namibia without ever having to account for his whereabouts during the armed insurrection," he stated.

The issue stems from an earlier judgement by the Supreme Court which found that Boster Mubuyaeta Samuele was abducted illegally from Botswana by Namibian security agents and thus Namibian courts had no jurisdiction to try him.

Likanyi was in the same group as Samuele. An appeal by the State to the Supreme Court in 2015 to set aside and reverse a decision by High Court Judge Elton Hoff declaring that Namibian courts do not have jurisdiction over Likanyi - was this week reversed by the Supreme Court. Hoff's initial ruling was thus upheld and Likanyi was granted the same grace as Samuele. The Supreme Court ordered that Likanyi must be released from custody immediately and that he is free from future prosecution on the same charges. He had been sentenced to 15 years in prison by Judge Hoff at the end of the long-running treason trial.

After the Supreme Court granted Samuele immunity from prosecution and released him from prison earlier this year, Likanyi filed an application to the Chief Justice through his State-funded lawyer, Advocate Gerson Nyoni, for the High Court to reverse its decision of 2015 that he is liable to be tried in a Namibian court.

According to Chief Justice Shivute, the previous judgment failed to give full effect to the peculiar factual circumstances of Likanyi resulting in an indefensible injustice to him. He said the importance of the State adhering to the rule of law cannot be overemphasised.

Likanyi was part of the second group of treason-accused that went on trial in Grootfontein in 2004 that entered a special plea on jurisdiction. He was accused of taking part in a conspiracy aimed at overthrowing the Namibian government in the former Caprivi Region between September 1998 and December 2003.


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