Namibia: Treason Trial Damages Claim Fails

One of the men acquitted in the main Caprivi high treason trial has lost a lawsuit in which he sued the government for N$15,3 million because of the alleged violation of his constitutional rights during the 13 years he spent in jail before being found not guilty.

After first scoring a win against the prosecutor general (PG) and the government in the High Court in February 2017, and then seeing that victory reversed in the Supreme Court in February last year, former treason trial accused Richwell Kulisesa Mahupelo has now experienced another setback in the Windhoek High Court, with the dismissal of his claim for constitutional damages in an amount of N$15,3 million.

Judge Nate Ndauendapo dismissed Mahupelo's claim in a judgement in which he reasoned that Mahupelo's constitutional rights had not been unlawfully violated, since the Supreme Court has found that his prosecution up to the end of the state's case in the main Caprivi high treason trial had been justified, and that there was no wrong and negligent conduct on the part of the prosecution team in the trial on that issue.

Judge Ndauendapo also said he agreed with arguments on behalf of the prosecutor general and government, "that where the Supreme Court found that the prosecution of [Mahupelo] was lawful, awarding constitutional damages is inappropriate".

During his trial, Mahupelo had a number of options available to address the alleged violation of his constitutional rights, including his right to a fair trial within a reasonable time and his right to dignity, judge Ndauendapo noted.

However, Mahupelo did not make use of any of those options - such as applying to be granted bail as the trial continued for more than 10 years before he was acquitted, or asking for his release because the trial was not taking place within a reasonable time, or applying for his trial to be separated from that of his co-accused, the judge also noted.

Since those were effective remedies to vindicate his rights, which he did not make use of, Mahupelo could not afterwards claim compensation for the alleged violation of his rights, the judge indicated.

Mahupelo was one of the 121 accused in the dock when the first phase of the treason trial started in the High Court at Grootfontein in October 2003. The men who were prosecuted in the trial were accused of involvement in a plot to stage an armed rebellion in the Zambezi region with the aim of seceding the region from Namibia.

Having been arrested in mid-March 2000, Mahupelo ended up being detained for nearly 13 years before he and 42 co-accused were found not guilty in February 2013.

Thirty of the accused in the trial were ultimately convicted of high treason in September 2015, when another 35 of the accused were also acquitted.

Following their acquittal, dozens of the former accused in the treason trial sued the government and PG in civil claims for damages.

Mahupelo's was the first of those claims in which a judgement was delivered, with acting judge Philanda Christiaan ruling in February 2017 that the continuation of the prosecution against him had been malicious after the point that the last of the witnesses who implicated him had testified without identifying him in the dock.

The Supreme Court overturned that finding on malicious prosecution, though, and sent the case back to the High Court for Mahupelo's claim for constitutional damages to be decided.

The Supreme Court has in the meantime also overturned three other High Court judgements in which the PG was similarly held liable for having continued to prosecute three of the accused in the treason trial beyond a point when the last witnesses who had been expected to implicate them had given their testimony.

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