The prosecutor general and government have scored a double win in the Supreme Court, with two successful appeals against High Court judgements in which they were held liable to compensate two of the men acquitted in the marathon main Caprivi high treason trial.
The prosecution team in the treason trial did not maliciously continue with the prosecution of two of the men eventually acquitted in the trial after witnesses who had been expected to incriminate them testified without identifying them in court, the Supreme Court ruled in two appeal judgements delivered last week.
In both judgements, the Supreme Court upheld an appeal by the government, the prosecutor general and the minister of safety and security against High Court judgements in which the prosecutor general and the government were held liable for the continuation of the prosecution of acquitted treason trial accused George Lifumbela Mutanimiye and Rosco Matengu Makapa beyond the point when witnesses who had been expected to incriminate them had given evidence in the trial.
Overturning the High Court's judgements on the two men's civil claims against the government, the prosecutor general and the minister of safety and security, the Supreme Court referred their cases back to the High Court, for that court to decide their claims that their constitutional rights had been violated when their trial was, according to them, not concluded within a reasonable period of time.
With the two appeal judgements on the civil claims instituted by Makapa and Mutanimiye, the Supreme Court has now overturned three judgements in which the High Court found that the continued prosecution of treason trial accused who ended up being found not guilty had been malicious.
Makapa was employed as a teacher in the then Caprivi region before he was arrested in August 1999, in the aftermath of an attempt by a separatist organisation to overthrow the government in Caprivi and secede the region from Namibia. He was thereafter prosecuted on high treason and 277 other charges.
Having spent more than 13 years in jail before he and 42 co-accused were found not guilty in February 2013, after the end of the state's case in the trial, Makapa sued the government, the prosecutor general and the minister of safety and security for N$30,4 million in compensation.
Although acting judge Philanda Christiaan in April 2017 dismissed Makapa's claim that he had been maliciously prosecuted, the judge ruled that the continuation of his prosecution after September 2008, when all of the testimony that had been expected to implicated him had been heard, had been malicious.
Mutanimiye, who was employed at the Caprivi College of Education, was also arrested in August 1999 and then kept in jail for more than 13 years, until he was found not guilty in February 2013.
He sued the government, the prosecutor general and the minister of safety and security for N$22 million in compensation following his acquittal.
Similar to the judgement given on Makapa's claim, judge Hannelie Prinsloo in July 2017 dismissed Mutanimiye's claim that he had been maliciously prosecuted when charges were instituted against him, but ruled that the state maliciously continued to prosecute him after November 2005.
In the Supreme Court's judgement on the appeal about Makapa's claim, chief justice Peter Shivute noted that malicious prosecution required proof that a criminal process had been set in motion without reasonable and probable cause, and had been fuelled by malice or improper motive.
The prosecutor general's powers to institute and discontinue criminal proceedings are remarkable, and it is central to the preservation of the rule of law that those powers be exercised with the utmost integrity, the chief justice stated.
He remarked: "In a democratic setting based on the rule of law, the public prosecutor plays a vital role in ensuring due process as well as respect for the rights of all parties involved in the criminal justice system. The public prosecutor's duties are thus owed to both the public as a whole and those individuals caught up in the system."
Error of judgement, even negligent error, is not sufficient to justify judicial intervention in the exercise of a prosecutor's discretion, but a court can and must intervene where that discretion was improperly exercised, the chief justice stated.
He also remarked: "A prosecutor must act with objectivity and must protect the public interest. His paramount duty is not to procure a conviction but to assist the court in ascertaining the truth. Accordingly, the prosecutor is required to exercise his or her discretion on the basis of the information before him or her."
In the treason trial, four witnesses testified against Makapa, but failed to identify him in court, the chief justice recounted.
He also said it had not been shown that the prosecution team in the treason trial did not have reasonable and probable cause to maintain the prosecution after September 2008, and there was no evidence that showed the prosecution did not have an honest belief in Makapa's guilt. That neutralised the existence of malice, the chief justice said.
In the appeal judgement on Mutanimiye's claim, acting judge of appeal Bess Nkabinde noted that there was information that linked Mutanimiye to plans to take up arms to secede Caprivi from Namibia.
She reasoned that, just like the High Court found that there were sufficient grounds to institute a prosecution against Mutanimiye, it should also have found that there was reasonable and probable cause to continue with the prosecution after November 2005.
Judge Nkabinde also stated that she was unable to find any convincing indications of malice on the part of the prosecutor general and the prosecution team.
Acting judges of appeal Fred Chomba and Yvonne Mokgoro agreed with the chief justice's judgement in the Makapa appeal. In the appeal on Mutanimiye's claim, the chief justice and judge Mokgoro agreed with judge Nkabinde's decision.
Senior counsel Ishmael Semenya, assisted by Nixon Marcus, represented the appellants in both appeals. Andrew Corbett, SC, assisted by Unanisa Hengari, represented Makapa, while Mutanimiye was represented by Slysken Makando and Profysen Muluti.