CASE NO: CC 03/04
IN
THE HIGH COURT OF NAMIBIA
In the matter between:
PROGRESS KENYOKO MUNUMA ACCUSED 1
SHINE SAMULANDELA SHINE ACCUSED 2
MANEPELO
MANUEL MAKENDANO ACCUSED 3
VINCENT
LISWANISO SILIYE ACCUSED 4
VINCENT KASHU SINASI ACCUSED 5
ALEX SINJABATA MUSHAKWA ACCUSED 6
DIAMOND SAMUZULA SALUFU ACCUSED 7
HOSTER SIMASIKU NTOMBO ACCUSED 9
BOSTER
MUBUYAETA SAMUELE ACCUSED 10
JOHN MAZILA TEMBWE ACCUSED 11
ALEX MAFWILA LISWANI ACCUSED 12
and
THE
STATE RESPONDENT
CORAM: MANYARARA, A..J
Heard
on: 19.09.2005; 20.09.2005; 21.09.2005, 22.09.2005;
26.09.2005; 27.09.2005; 28.09.2005; 29.09.2005;
30.09.2005;
03.10.2005; 04.10.2005; 05.10.2005;
06.10.2005; 11.10.2005; 12.10.2005
Delivered on: 25 OCTOBER 2005
JUDGMENT:
MANYARARA, A.J. The
accused were indicted in this Court on charges of high treason,
sedition, public violence and unauthorized importation, supply or
possession of firearms and ammunition.
They have
entered special pleas in terms of the Criminal Procedure Act [51 of
1977 section 106 (3)] that the court has no jurisdiction to try them.
1st
to 7th Accused and 9th, 10th and
12th accused are represented by Mr. Ndauendapo and 11th
accused by Mr. Grobler. Mr. Small with him Miss Lategan represent
the State.
All but one
of the accused testified. Accused No. 11 John Mazila Tembwe alone
elected not to testify without abandoning his contention that the
Court has no jurisdiction to try him.
The
allegations made in the plea explanations are identical except in the
dates given. They read as follows:
1. On or about (date given) I left Caprivi and crossed the border
illegally into Botswana due to persistent harassment by the Namibian
Police (slash) Namibian Defence Force.
2. I was granted political asylum in Botswana and based at Dukwe
Refugee Camp.
3. During (month and year given) I was forcibly and unlawfully
arrested by the Botswana authorities and handed over to the Namibia
Police.
4. I submit that my apprehension and abduction from Botswana and
transportation to the Republic of Namibia and purported arrest and
detention pursuant thereto is in breach of international law and
wrongful and unlawful.
Under
the circumstances I have not properly and lawfully been arrested and
properly and lawfully been arraigned before a court of competent
jurisdiction for purposes of trying me on the indictment preferred
against me and should be discharged forthwith.
It is
evident that the main thrust of the plea explanations is
two-prolonged, viz that the Court must decline jurisdiction because:
(a) The accused, after they were granted asylum in Botswana, were
unlawfully arrested by the Botswana Police and handed over to the
Namibian Police; and
(b) Consequently their subsequent arrest and detention by the
Namibian police is also unlawful.
The onus
rested on the State to prove that the court has jurisdiction to try
the accused and the State went about the task of discharging the onus
resting on it by calling witnesses to give evidence of the manner in
which the accused find themselves before the Court.
The first
such witness was Detective Sergeant Kavenaue Kombungu with 19 years
experience of police duties. During the relevant period he was
stationed at Katima Mulilo and his area of operation covered the
Ngoma border with Botswana.
On 12
December 2003 he received copy of a letter dated 11 December 2003.
The letter originated from the office of the Inspector General of
NamPol in Windhoek. It was addressed to the Regional Police
Commanders for Caprivi, Oshikoto and Omaheke regions and Chief
Inspector Goraseb was the Regional Commander for Caprivi.
The witness
read the letter, produced as exhibit B1 into the record as follows:
“RE:
DEPORTATION OF NAMIBIAN REFUGEES FROM BOTSWANA: 12 DECEMBER 2003
I am forwarding the hereto attached copy of the letter from
the High Commission of the Republic of Namibia to Botswana dated
today 11th December 2003 in connection with the
above-mentioned subject for information and immediate attention.
You are therefore, directed to take note that some of them might be
suspects of the High Treason case in the Caprivi Region. You are
further directed to liaise with the CID and Special Branch members on
the subject in your respective regions for any possible immediate
arrest for the High Treason case suspects.
Yours sincerely,”
The letter
was signed on behalf of the Inspector General by the Deputy Inspector
General Admin, who was the Acting Inspector General at the time and
copied to: Commanding Officer: CID
Commanding
Officer: SB”.
The attached copy of the letter from
the Namibian High Commission in Botswana (exhibit. B2) was also read
into the record as follows:
“The Permanent Secretary
Ministry of Home Affairs
Windhoek
Namibia
Dear Colleague
Deportation of Namibian refugees from Botswana
The Namibian High Commission to
Botswana has today received a Note Verbale (attached) from the
Ministry of Foreign Affairs and International Co-operation of the
Republic of Botswana, informing it about the Botswana Government’s
decision to deport eight Namibian refugees by tomorrow, 12th
December 2003.
The
refugees in question are being deported for violating the conditions
of their stay in Botswana, as well as the United Nations Convention
governing the status of refugees. More detailed information is
contained in the attached Note from the Botswana Government.
The Mission has not been
afforded time or the opportunity to verify the information contained
in the Note, on the identities of the purported deportees, as the
information arrived only today, while the date of deportation is
tomorrow. The Mission will, in the meantime attempt to obtain
additional information regarding the time and place (border post) of
the planned deportation.”
Signed &
Copied to: The Permanent Secretary, Ministry of Foreign Affairs
Office of the Inspector General,
NamPol
The witness
also read the Note Verbale attached thereto (exhibits B4 – 5) into
the record as follows:
“The Ministry of Foreign Affairs
and International Co-Operation of the Republic of Botswana presents
its compliments to the High Commission of the Republic of Namibia and
has the honour to inform the latter of a decision by the Government
of Botswana to deport the following eight (8) Namibian refugees by
Friday 12 December 2003:
Vincent Liswaniso Siliye
Samulandela Shine Samulandela
Progress Kenyoka Munuma
Vincent Salishando Sinasi
Diamond Samuzala Salufu
Mosweu Matthews Tembwe
Alex Sinjabata Mushakwa
Manepelo Manuel Makendano
The eight are being deported for
violating both the conditions of their stay in Botswana as well as
the United Nations Convention governing the status of Refugees.
In terms of Article I(C)I of the 1951
United Nations Convention on the Status of Refugees, under which the
individuals were granted refugee status, the Convention shall cease
to apply if an individual “has voluntarily reavailed himself of the
protection of the country of his origin”. The eight have admitted
to crossing into Namibia during their stay as refugees in Botswana.
The Ministry wishes to request the
esteemed High Commission to inform the appropriate authorities in
Namibia to facilitate the deportation process”
We were
told that a “Note Verbale” is an official communication from one
government to another government.
All the persons mentioned in the
document except one are before the Court. The exception is Matheous
Tembwe who was released when the charges against him were withdrawn.
Before handing the above exhibits to
Detective Sergeant Kombungu, Chief Inspector Goraseb, the Caprivi
Regional Commander, endorsed on the first page thereof the following
instruction:
“Detective Sergeant Kombungu
and Detective Shinana,
Take Note, travel to Ngoma
and do the necessary.”
Detective
Sergeant Kombungu visited Ngoma as instructed, accompanied by
Detective Sergeant Popyeinawa. Other police officers joined them
there.
At about 8pm, the Botswana immigration
officers arrived at the Ngoma border post with the 8 persons
mentioned by the Note Verbale and handed them over to the Namibian
immigration officers together with the acceptance warrants relating
to each of them (exhibits C1 – C8). The Namibian immigration
officers signed for these persons and handed them and their
respective acceptance warrants to the waiting police officers.
Detective Sergeant Kombungu described
the acceptance warrants as follows:
Each warrant was issued on a letter head of the
Botswana Government bearing the coat of arms of the Republic of
Botswana, and is addressed to the Namibian authorities at Ngoma as
follows:
“The prospective deportee whose
particulars are appended below has been given Special Orders, in
accordance with the Immigration Law of the Republic of Botswana, to
leave Botswana on or before 12 December 2003 to: Namibia which he
claims to be his Country of Origin; please accord him the right of
re-entry into his Country of Birth for purposes of Permanent
Residence. The duly completed Repatriation Form is attached to this
Warrant.”
That
introduction is followed by the particulars of the named deportee as
follows:
Name in Full
Place of birth
Name of mother
Nationality of mother
Name of father
Nationality of father
Present nationality of deportee
On all of
exhibits C1 – C8 the nationality of the parents of the deportee is
described as ”Namibian” and this detail has been confirmed by
each accused as correct.
The warrant concludes with the
following declaration:
“I (followed by the deportee’s
name) declare that I am a citizen of Namibia.”
Each
declaration bears the signature of and is dated by the deportee in
front of a Botswana immigration officer, and the accused confirmed
that the signatures appearing on the exhibits are theirs. The
immigration officer also signed each warrant as the officer
instituting the removal of the deportee from Botswana and attached
the official date stamp mark.
We were also told that when the
deportee is handed over to a Namibian immigration officer, the
Namibian immigration officer signed the warrant as the officer
accepting the deportee into Namibia and also attached the official
date stamp mark. Mr. Richard Masule, the head of immigration in
Caprivi, confirmed that exhibits C1 – C8 were signed and dated by
the Namibian immigration officer on duty.
Detective Sergeant Kombungu said that
it was Mr. Richard Masule, who was present, who handed over the
deportees and their respective acceptance warrants to him before the
police team drove them to Ngoma police station.
The next document shown to Detective
Sergeant Kombungu he identified as the Occurrence Book kept as Ngoma
Police Station, exhibit D1, wherein every event occurring in Ngoma is
recorded. Entry 252 for Friday 12 December 2003 at 19h24 was made by
him and he read it into the record as follows: (Quote):
“Detention: Detective
Sergeant One, Kombungu for
following suspect (s? ) on CR 4 –
10/08/99 High Treason
One, Vincent Liswaniso Siliye
Two, Samulandela Shine Samulandela
Three, Progress Kenyoko Munuma
Four, Vincent Salindano Sinasi
Five, Diamond Samuzala Salufu
Six, Musheko Matheus Tembwe
Seven, Alex Sinjabata Mushakwa
Eight, Manepelo Manuel Makendano
Free from injuries, inspected by
Detective Sergeant Kambungu.”(Unquote)”
Each name
is followed by a reference number of the particulars of the
individual concerned.
Detective Sergeant Kombungu explained
that the CR (Crime Register) Number for the treason case is dated
August 1999 because that is when Katima Mulilo was attacked. He also
testified that the plea explanation of 1st accused creates
the impression that he was in Dukwe and remained there as a political
refugee from 27 October 1998 until December 2003 when he was deported
to Namibia. However, according to information gathered by the
investigating team, he and others were in fact in Namibia engaged in
activities connected with high treason. The same applied to the rest
of the accused before the court because the police have evidence
implicating all the accused in the crimes of high treason committed
during the period that they claim they were in Botswana.
The defence counsel put to Detective
Sergeant Kombungu the accused’s account of the events they allege
occurred in Botswana with the aim of establishing the truth thereof.
However, the witness had no knowledge thereof, nor could he be
expected to have such knowledge as there was no evidence that he was
present in Botswana at the time to have witnessed the events
described. His role, to which he testified and was cross-examined at
very great length, was simply to receive the accused from the
Namibian immigration officers and to treat them as suspects in the
high treason case on account of the information gathered by the
police team investigating the case.
Constable Fransina Nelumbu Kanime
testified that she was on duty at the satellite police station on the
Namibian side of Ngoma border post on 20 September 2002 when Botswana
immigration officers arrived with two persons and handed them over to
the Namibian immigration officers as illegal immigrants to Botswana.
The Namibian immigration officers were going to hand them over to her
but she decided to take the officials and the two deportees to Ngoma
Police Station from where she telephoned the office of the Regional
commander. She spoke to Inspector Serogwe and gathered that the
police were expecting the deportees and she should hold them at the
station and wait for him.
So she entered their names in the cell
register and locked them up. They are accused No. 9 Hoster Ntombo
and accused No. 11 John Tembwe. She did not record any CR number as
she did not know the reason for their detention. In the remarks
column she entered the words “Traveling prisoners from Botswana.”
That was the end of her involvement in this matter.
Detective Warrant Officer Theofellus
Kamati was also at the relevant time stationed at Katima Mulilo
attached to the treason trial investigation team. On 6 December 2002
he had accompanied Chief Inspector Goraseb to Ngoma on the
understanding that they were to interview certain persons being
deported from Botswana. They were joined at Ngoma by Warrant Officer
Nalisa. As they waited on the Namibian side of Ngoma, the Botswana
authorities invited them to the Botswana side of Ngoma. They crossed
into Botswana accompanied by Namibian immigration officers.
When they reached Botswana, they were
led to a weighbridge where Chief Inspector Goraseb instructed Warrant
Officer Nalisa to bring his vehicle alongside the Botswana vehicle
which was parked there.
The Botswana officials opened the door
of their vehicle and three deportees emerged from the vehicle in
handcuffs. Kamati came to know them as Osbert Mweni Likanyi (who is
currently an accused in the main treason trial at Grootfontein) and
Boster Samuele Mubuyaeta Muketela (accused 10 before this Court) and
Alex Liswani (accused 12 before this Court).
The Botswana officials removed the
handcuffs from the three and they were loaded on the Namibian
vehicle. The Namibian officials and the three deportees drove to the
Namibian Ngoma border post where the usual immigration procedure was
completed. Kamati was instructed to detain the three deportees in
the Ngoma police cells in terms of the Immigration Act pending
further investigations. The relevant entries were made in the cell
register.
On 10 December 2002 the immigration
charges were altered to high treason charges and the cell register
entries were altered accordingly. Kamati made the relevant entry in
the occurrence book as the arresting officer. He interviewed the
accused Boster and Liswani for the purpose of taking a warning
statement, after he introduced himself as a police officer, produced
his certificate of appointment and informed them of their rights.
Both accused elected to remain silent.
Kamati agreed with Mr. Ndauendapo that
the accused concerned were collected in Botswana territory. However,
he maintained that their arrest and detention by the Namibian police
were effected on Namibian soil and he adhered to that testimony. He
had no knowledge whether any Namibian authorities had requested the
Botswana authorities to deport the accused and, in my view, that put
an end to the cross- examination.
Richard Kamwi Masule was at all
relevant times the head of immigration for Caprivi and he broadly
gave the same testimony of the collection of Likanyi and accused 10
and 12 as was given by the police witnesses.
He added that on that occasion the
Botswana officials did not take with them the original copies of the
acceptance warrants but left these with the Namibian immigration
officers, saying that they would collect the originals after two
days, which they did.
Masule testified that his signature
does not appear on exhibits C1 – C8. These were signed in his
presence by Anna Sitali, a senior immigration officer, and O.B.
Luseho who had since passed away.
Under cross-examination by Mr.
Ndauendapo, Masule stated that they had not received any deportation
orders from the Botswana government relating to these accused. In
any event, that was none of their business. Theirs is to accept
deportees on the strength of the acceptance warrants already
described. On this occasion they waited on the Namibian side and
only crossed over into Botswana when the Botswana authorities
requested them to come and collect the deportees.
The cross-examination by Mr. Grobler
did not take the matter any further.
Detective Sergeant Eino Popyeinawa was
part of the police team investigating the high treason case. He
accompanied Chief Inspector Putukeni and Detective Sergeant Kombungu
to Ngoma border post to receive accused No. 9 and accused No. 11 on
20 September 2002. He informed the accused of their rights and
arrested them on charges of high treason and recorded the arrest in
the occurrence book exhibit E1 entries 81 and 82. The arrest took
place on Namibian soil.
He was also present at Ngoma border
post when 8 deportees arrived and were placed under arrest by
Detective Sergeant Kombungu.
Cross-examination by the defence did
not take the matter any further.
The Inspector General of the NamPol
Sebastian Ndeitunga, also testified. It was he who signed the letter
addressed to the regional commanders exhibit B1 as the acting
Inspector General. He said that the purpose of the letter was to
ensure that the 8 persons coming from Botswana were “properly
processed” and checked against the list of persons wanted in
connection with the high treason case.
He had not on any occasion requested
the Botswana government to deport any persons, nor had the issue been
discussed with Interpol or the Botswana Police. He just learnt when
he received exhibits B2 – B5 that there were persons being deported
from Botswana and he merely took precautionary measures to ascertain
the “kind of people coming in.” He did not know where the
decision to deport was made.
This was evidence of a formal nature
and the cross-examination of the Inspector General on deportation and
extradition procedures was of no assistance to anyone.
Mr. Nicky Panduleni Nashandi is the
Deputy Permanent Secretary in the Ministry of Foreign Affairs. He
testified that the bundle of documents produced as exhibits B2– B5
was received by his office from the Namibian High Commission in
Botswana. As the contents were of no concern to his Ministry, he
forwarded the bundle to the Ministry of Home Affairs.
As already mentioned, Chief Inspector
Hieronymus Bartolomeus Goraseb was the Regional Commander for Caprivi
during the relevant period. His testimony was broadly the same as
the evidence already led from the other police officers who testified
on the role that he played, that he endorsed the instruction to
Detective Sergeant Kombungu on exhibit B1 to follow up the expected
deportees and that he traveled to Ngoma with Warrant Officer Kamati
and others to collect Likanyi and accused No. 10 and No. 12. He also
asked no questions about the deportation procedure adopted as this
was for the attention of the immigration authorities.
No new points arose from Mr.
Ndauendapo’s cross-examination of Chief Inspector Goraseb which
concluded as follows:
“MR NDAUENDAPO: I have
just the last question; you closed off your testimony by saying that
you thanked the Botswana Government for their cooperation and
assistance. Can you perhaps just elaborate on that, what do you mean
by that? ---- My Lord the Caprivi region borders with FOUR (4) other
countries and we have got bilateral relations with each of these
countries on security and defence issues. And there exists I believe
even today, a committee between the Caprivi region and the Tjobe
district, which is meeting at least TWO (2) times in the year to
discuss issues of common interest, such as crimes, cross-border
crimes and so on, etcetera.
Is that relationship governed by
any written agreement between the various countries? ---- There is
in my knowledge, I may be right or wrong, there is an overall
Commission on Defence and Security that exists between Botswana and
Namibia, which is headed by our Ministers of Defence.
But is that governed by written
agreement between the countries or it is just a verbal (intervention)
---- Well I wouldn’t know, but what I know is that such a
commission exists and it is because of that, that we have these
meetings.”
The evidence ended on the following
note:
“RE-EXAMINATION BY MR. SMALL:
Just one aspect My Lord. For this cooperation; would you personally
do something illegally in Namibia to assist your counterpart in the
Tjobe district? ---- No My Lord. I can also state that the
cooperation includes also joint operations on each other’s
territory as well, such as we would have Botswana police officers
come into Namibia and we would conduct raids on suspected places and
then make searches and confiscate sometimes goods, etcetera. And the
same would happen for example in Mavinga on the Botswana side. And
those cases are on record.”
That concluded the State evidence
which I have set out in some detail as the onus rests on the
State of proving that the accused are properly and lawfully before
this Court for trial.
As I have said, all the accused
testified except accused No. 11 who elected to remain silent without
abandoning his challenge of the Court’s jurisdiction on the grounds
set out in his plea explanation. These are broadly similar to the
plea explanations of the rest of the accused except that, unlike the
rest, no dates are given when the events thus set out happened. As
accused No. 11 elected not to testify, the date 20 September 2002
given by the police as the date of his deportation together with
accused No. 9 Hoster Ntombo must be accepted as the correct date.
The gist of the evidence of the
rest of the accused may be fairly summarized as follows:
They all left Namibia and crossed the
border illegally into Botswana.
1st accused on 27 October
1998
2nd accused on the same
date
3rd accused in July 2001
4th accused on 4 November
1998
5th accused on12 January
1999
6th accused on 28 December
1998
7th accused on 5 November
1998
9th accused on 10 December
1998
10th accused on 6 November
1998 and
12th accused on 5 November
1998
2. Each of them was interviewed,
granted asylum and accommodated at Dukwe refugee Camp in
Botswana.
3. 1st – 7th
accused testified that in September 2001 the Botswana authorities
removed them from Dukwe under arrest and took them to the maximum
security prison in Francistown.
They protested such treatment, the
representatives of refugee and other human rights organizations came
to their assistance and they were on 9 June 2003 removed from the
prison and taken to the centre for illegal immigrants to await
relocation to countries other than Namibia. To their surprise,
during December 2003 the Botswana police re-arrested them, drove them
to Ngoma in handcuffs and leg irons and handed them over to the
Namibian Police.
The accused gave lengthy and detailed
accounts of the events to which they testified. This evidence was
primarily of what they perceived as ill-treatment by the Botswana
authorities.
4. 9th accused’s plea
explanation in its original form indicated that he had a similar
experience. However, the typed date December 2003 was altered in ink
to 20 September 2002, which he testified as the date when he was
returned to Namibia. His testimony was that, he was removed from
Dukwe on 20 August 2002 and taken to Kasana where he was incarcerated
in a prison until 20 September 2002.
He was uncertain whether accused No.
11 Tembwe was also in Kasane prison during the same period. It is
recalled that Tembwe elected not to testify. But they were handed
over to Namibia together on 20 September 2002.
5. 10th accused Boster
Samuele testified that he remained at Dukwe as a refugee from 6
November 1998 when he left Namibia until 7 November 2002 when he was
arrested, taken to Kuzungula in Botswana and detained until 12
December 2002 when he was handed over to the Namibian police at
Ngoma. However, his acceptance warrant shows that the Botswana
immigration officials handed him over to the Namibian immigration
officials on 6 December 2002, the date to which his plea explanation
had been altered.
The inference to be drawn is that
accused Nos. 9, 10 and 11 have no knowledge of the maximum security
prison in Francistown or the center for illegal refugees to which the
rest of the accused testified.
Be that as
it may, all the accused said that they regard the conduct of the
Botswana and Namibian authorities as a violation of international law
and human rights and the deportation and extradition laws of their
own countries. They wanted the Botswana authorities to be called to
deny these allegations.
The
impression conveyed by the evidence of the accused and the inference
I draw from the omission of dates from accused 11’s plea
explanation is that they were all untruthful on their whereabouts
between the dates of their entry into Botswana and expulsion from
Botswana. This lends credence to the evidence of the police that
they had information of these accused’s presence in Caprivi during
the period that they allege they were in Botswana. Therefore, the
balance of probability favours the State version as supported by the
documentary evidence. It is also significant that none of the
accused who testified gave evidence of the (quote) persistent
harassment by the NamPol and NDF (unquote) alleged in all the plea
explanations. The inference to be drawn is that such harassment did
not happen.
But as will be seen in due course,
this evidence is irrelevant anyway.
Regarding their encounter with members
of the Namibian Police, all the accused denied that any of them
introduced himself or informed them of their rights before
interviewing them for the purpose of taking warning statements.
However, this is a procedural issue irrelevant to the question of the
alleged abduction of the accused from Botswana by or with the
connivance of the Namibian authorities.
Questions put by Mr. Small in
cross-examination relating to the relevance of events in Botswana to
the jurisdiction of this Court were either not answered or just
evaded.
To illustrate this point, first
accused Progress Munuma was content to deal with the question of the
date when he arrived at Dukwe from Namibia as follows (quote):
“---
I was supposed to answer that question my Lord, but I don’t see any
need to answer it.
Yes. So you are not prepared to
answer that question during this, at this stage? ---- Yes I am
unable to answer My Lord, because now we are dealing with the
jurisdiction.
So it’s not a case of you not
knowing when you arrived in Dukwe? It is just that you prefer not to
answer it at this stage. --- I am an elder person My Lord, so it
is not that maybe I cannot answer the question. Now the, we are deal
with the jurisdiction, so I cannot answer question, which was
supposed to be answered or which will be answered in the near future.
My Lord if you can ask me questions about the jurisdiction then I
will be able to answer it.
Yes. Let me perhaps put it this
way Mr. then, Mr. Munuma, do you realize that if your Jurisdiction
Application is successful there will be no hearing on the merits?
--- My Lord it is better if you could ask me the questions on
jurisdiction.”
And Mr. Small’s gallant effort to
get fourth accused Vincent Siliye to admit that he is a Namibian
citizen floundered as follows (quote):
“MR SMALL: Yes. Thank
you. On the 12th of December 2003, can you tell me what
was your nationality? --- The question is not clear because I don’t
understand why only particular on that day? The question is not
clear to me.
Were you at anytime in your life a
national of any country? --- My Lord I was only in Caprivi.
And you stay in Caprivi for most
of your life? --- That’s correct My Lord until 4th of
November when I went to seek political asylum in Botswana.
Would
you agree with me that makes you a Namibian citizen? --- I didn’t
say I’m a Namibian citizen(ship) or not and I didn’t mentioned
that anywhere.
Let me rephrase, if I say that
makes you Namibian would I be correct or incorrect? --- My Lord it
is also very strange to emphasis on my citizenship. If I’m
standing before this Court putting my Special Plea about the way I
was deported from the country were I have been staying as a political
refugee and handed over to the Namibian Government. I don’t think
it is, this has got something to do with my nationality.
So are you a Botswana
citizen? --- My Lord I said I was granted political asylum to
Botswana, in Botswana under the United Nation Conversion and no one
stripped me off by any means at anytime by those status. So it means
that I was supposed to be in Botswana now citizen or not.”
Counsel’s addresses followed closely
the written heads of argument filed in this matter. The Court is
indebted to all counsel for their argument and the extensive learning
contained in the authorities cited. However, at the end of the day
the crisp issue to be decided is relatively by a narrow one.
Taking their cue form their respective
client’s version of their removal from Botswana and handing over to
the Namibian authorities, Mr. Ndauendapo and Mr. Grobler, with the
limitation that his client accused No. 11 did not testify, argued
strenuously that the Court lacks jurisdiction because their
respective clients were abducted from Botswana and transported to
Namibia with the active participation of the Namibian Police. They
argued at great length that this is breach of international law, and
cited Botswana and Namibian legislation as well as decided cases
relating to extradition and deportation and submitted that both the
Botswana and Namibian governments acted in flagrant breach of their
own domestic law and international law conventions. Therefore, this
Court should decline jurisdiction on the ground that the State has
not come with clean hands.
The Clean Hands
Principle
The clean hands principle is
enunciated in S v Ebrahim 1991 (2) SA 553 and explained in S
v Beahan 1992 (1) SACR 307 (ZS). Both cases have been cited by
Mr. Small but not by either Mr. Ndauendapo or. Mr. Grobler.
The facts of the Ebrahim case are conveniently summarized in the
Beahan case at 314 d – f as follows:
“In
that case the appellant, a South African citizen by birth, fled to
Swaziland in December 1980 whilst restricted to the magisterial
district of Pinetown in Natal. In December 1986 he was abducted from
his home in Mbabane (Swaziland) by persons acting as agents of the
South African Sate and taken back to South Africa where he was handed
over to the police and detained in terms of security legislation. He
was subsequently charged with treason, convicted and sentenced to 20
years’ imprisonment with labour. Prior to pleading to the charge
the appellant launched an application seeking an order that the Court
lacked jurisdiction to try him inasmuch as his abduction was in
breach of international law and thus unlawful. The application was
dismissed. An appeal against the ruling succeeded. After an
exhaustive examination of the Roman and Roman-Dutch law, Steyn JA
came to the conclusion that under both these systems the removal of a
person from an area of jurisdiction in which he had been illegally
arrested to another area was considered as tantamount to abduction.”
In the Beahan case,
GUBBAY CJ (with whom the full court agreed) quoted with approval the
following passage from the Ebrahim judgment at 582 C – E (in
translation) which reads as follows:
“Several
fundamental legal principles are implicit in those rules (of the
Roman-Dutch law), namely, the preservation and promotion of human
rights, good international relations and the sound administration of
justice. The individual must be protected against unlawful detention
and against abduction, the boundaries of jurisdiction must not be
violated, State sovereignty must be respected, the legal process must
be fair towards those who are affected by it and the misuse of the
legal process avoided in order to protect and promote the dignity and
integrity of the administration of justice. The State is also bound
thereby. When the State itself is a party to a case, as for example
in criminal cases, it must as it were come to court with “clean
hands”. When the State is itself involved in an abduction over
territorial boundaries, as in the present case, its hands are not
clean.
Rules
such as those mentioned are evidence of sound legal development of
high quality.”
The operative term is
“abduction.” The evidence led by the State in the present matter
is that Namibia played no part in the arrest and deportation to
Namibia of the accused. This evidence is supported by the relevant
acceptance warrants produced at this hearing whose authenticity the
accused were quite unable to dispute.
In the Namibian case,
Pineiro and Others v Minister of Justice and Others 1991 NR
283 (HC), it was held that the “clean hands principle” was not
violated when Spanish vessels were arrested within South African
waters and escorted to Luderitz by the South Africa navy.
Levy J. (as he they
was) said at 295 I – 296 A:
“The
essential and fundamental point in Ebrahim’s case was that the
accused had been wrongfully and unlawfully abducted without the
cooperation of the Swazi Authorities from Swaziland by the South
African Police or its agents and brought against his will within the
jurisdiction of South Africa Courts”
Beahan’s case is
directly in point. There, a fugitive from Zimbabwe entered Botswana
illegally, he was apprehended by members of the Botswana Defence
Force and handed over to the Botswana Police. The subsequent events
are set out eloquently in the passage at 317h – 318b, quoted by
A.J.A Mtambanengwe at p18 of his typed judgment in the case of
The State v Moses Limbo Mushwena and 12 Others Supreme Court Case No.
6/2004(not yet reported). The passage proceeds as follows:
“Upon
it being ascertained that the authorities in Zimbabwe were anxious
that he (Beahan) be returned to stand trial, he was conveyed in the
custody of the Botswana Police to the border between the two
countries and voluntarily surrendered to the Zimbabwe Republic
Police, who promptly arrested him. That conduct did not constitute a
violation of international law for it involved no affront to the
sovereignty of a foreign State.”
As I have said, this is
the evidence led in casu (in this matter) which the accused
tried in vain to discredit by refusing to answer questions which were
directly in point or evading such questions by saying that the
Botswana authorities should be called to deny their allegations that
they were abducted.
GUBBAY CJ continued as
follows:
“Even
if it were assumed that a member of the Zimbabwe Republic Police had
interrogated the appellant at the main police station in Gaborone and
thereafter requested that he be returned, such action does not avail
the appellant. It is irrelevant to the issue.
The
immutable fact is that the appellant was recovered from Botswana
without any form of force or deception being practiced by the agents
of this country. The decision to convey him to Zimbabwe was made,
and could only have been made, by the Botswana Police in whose
custody he was.
Where
agents of the State of refuge, without resort to extradition or
deportation proceedings, surrender the fugitive for prosecution to
another State, that receiving State, since it has not exercised any
force upon the territory of the refuge State and has in no way
violated its territorial sovereignty, is not abreach of International
law. The learned C.J. cited See Morgenstein 1952 The British Year
Book of International Law 262 at 270-1: Oppenheim International Law
8th ed vol. 1 at 703 and In O’Connell International Law
2nd ed vol 2 at 834.
The Mushwena Case
The facts of the matter
before me are indistinguishable from the facts of the application
dealt with in the Mushwena case to which I have already referred.
In that case as in the
present matter, the accused (all Namibian citizens) were charged with
among other offences, high treason, public violence and unauthorized
possession of firearms and ammunition.
The accused all alleged
that they left Namibia and entered Botswana illegally, where they
were granted political asylum and accommodated in refugee camps in
Botswana.
On various dates during
1999, all but one of them left the refugee camps. They were
apprehended and detained by the Zambian authorities at various
locations on different dates. The Zambian authorities subsequently
handed over the accused to the Namibian authorities who received them
and promptly charged them as already mentioned.
As in the present
matter, the accused in the Mushwena case challenged the Jurisdiction
of the Namibian High Court to try them on the ground that they were
abducted in Zambia and unlawfully handed over to the Namibian
authorities. It was further alleged that the Namibian authorities
connived with the Zambian authorities in the alleged abductions.
The Judge in the Court
of first instance allowed the application. He held that the Court
had no jurisdiction to try the accused and ordered that they should
be released.
The State appealed to
the Supreme Court and the appeal was heard by a full court of five
Judges (Acting C.J. Strydom and Acting Judges of Appeal O’Linn,
Chomba, Mtambanengwe and Gibson).
By a majority of 3 to 2
(Acting C.J. Strydom and A.J.A O’Linn dissenting) the Supreme Court
allowed the appeal. It set aside the decision of the Judge in the
Court below, and remitted the matter to him to proceed with the
trial.
Essentially, the crisp
issue was whether the State had come to court with clean hands. The
crucial evidence was given by Major-General Shali of the NDF and
Colonel Henry Kaleji of the Zambia Defence Force.
A.J.A Mtambanengwe
referred to that evidence as follows:
“Asked what
authority in law the Namibian authorities had to cross the border
and arrest Nationals in Zambia, he (Shali) said:
“We did not cross the borders, even if it was few meters,
to arrest these people. We were not in pursuit, it was not an
operation. The Zambians were simply saying: “We are here, we have
the people you’re looking for, come and collect them”, and that’s
what we did. Now what law have we broken? What law? What act
according to the Namibian Constitution or indeed that of Zambia, have
we broken?
and
again:
“Let me try to clarify this once more, to say that the
purpose, there are two things here, these are terrorists who are
wanted here in Namibia for crimes they have committed. Now they were
in the hands of the Zambian authorities who wanted to deport them as
illegal immigrants and the Zambian authorities asked us to go and
collect them and they were only arrested after they were on the
Namibia territory.”
And
further, asked if the police collected them before they were
deported, he stated:
“Nowhere
in the law does it state that a person have to be deported only on
the borders. He could be deported right from international airports
in the centre of that particular territory.”
Lastly
he clarified:
“Yes,
please. --- Okay. I said I do not know how much you know of
deportation processes. Before you deport any person or a group of
them, you communicate a list. It was when we got the list that we
realized that on that list indeed were this group of people we’re
looking for and mind you, these were not the only people on the
deportation list, there were a lot more, but these were the only ones
that were on our terrorist list.”
In the course of that
cross-examination Shali also denies that he and his “counterpart”
(in Zambia) had planned and prepared that the respondents “must be
arrested as illegal immigrants and deported back to Namibia.”
Colonel Henry Kaleji of
the Zambian Defence Force was asked about connivance between Zambia
and Namibian authorities. He answered Mr. Kauta as follows:
“All the actions which I took were not influenced by any
external authorities. We arrested them because they were a threat on
our side and that was one of my functions as Regional Commander to
protect the security of the country.”
The view of A.J.A.
Mtambanengwe was that the evidence shows clearly that it was the
Zambian and Botswana authorities who took the initiative to deport
the accused. As for the Namibian authorities, they welcomed the
handing over.
A.J.A Gibson concurred
as follows:
“------the
evidence showed that Zambians initiated the process of deportation
independently of Namibia; that they only advised the Namibian
authorities after rounding up the parcel of people they wished to
expel”
And-
“With
regard to the Botswana fugitives, there is not a single piece of
evidence that Botswana’s actions were influenced or caused by any
action on the part of Namibia. In any event if the surrender of the
fugitives was the result of a cooperation between the three foreign
States in combating lawlessness within their territories, there is
good authority that such eventuality could not avail the
Respondents.” See Beahan’s Case and S v Rosslee 1994
(2) SACR 441 (c).
It was also the
evidence of Chief Inspector Goraseb that cooperation on issues of
security existed between Namibia and her neighbours.
The irrefutable
evidence in the present case is that in all instances it is the
Botswana authorities who informed the Namibian authorities that they
had decided to deport certain Namibians. I refer to the evidence of
the Inspector General of the NamPol and the evidence of the Namibian
immigration officers stationed at Ngoma border post as well as the
police officers who waited at Ngoma for the deportees.
All the present accused
were handed over by the Botswana immigration officers to the Namibian
immigration officers at Ngoma border post. The acceptance warrants
signed and dated by the Botswana immigration officers support this
evidence. There was no point in calling the Botswana immigration
officers to come and tell us the same thing. The acceptance warrants
speak for themselves. Also implicit in the Inspector General’s
letter exhibit B1 is an acknowledgement that the arrest of the
accused by NamPol could only take place on Namibian soil.
Detective Sergeant
Kombungu testified that it was after the Namibian immigration
officers received the accused and signed and dated the acceptance
warrants that the accused were handed over to the waiting police
officers who arrested them and charged them with high treason.
Detective Sergeant
Kombungu is a credible witness and his evidence is corroborated in
all material respects by the documentary evidence and all the other
State witnesses who testified, whose testimony is also credible. The
suggestion by the accused that the State witnesses are bound to cling
together and support each other's testimony because they are employed
by the same institution - the State - is fanciful and must be
rejected. It is credibility and quality of evidence which matter
in a court of law. The facts which I find proved in this matter
bring it squarely within the principles enunciated in the Mushwena
case.
In that case, all the
relevant authorities were cited and exhaustively considered by
practically every learned member of the Court. I need not attempt to
go over the same ground.
I am satisfied that
each and everyone of the accused was handed over to the Namibian
authorities by the Botswana authorities without any intervention by
or connivance of the Namibian authorities. The reasons for the
action taken by the Botswana authorities is contained in the Note
Verbale and the acceptance warrants, delivered to and produced by the
State witnesses in whose custody they have been. But the truth or
otherwise of these exhibits is no concern of the State witnesses or
this Court. They are not hearsay as suggested by counsel for the
accused. The point is effectively buried by the principle enunciated
in the case cited by Mr. Small Rex v Miller and Another 1939
AD 106 at 119 as follows:
“A
further objection was taken to these writings on the ground that they
were hearsay. But statements made by non-witnesses are not always
hearsay. Whether or not they are hearsay depends upon the purpose
for which they are tendered as evidence. If they are tendered for
their testimonial value (i.e., as evidence of the truth of what they
assert), they are hearsay and are excluded because their truth
depends upon the credit of the asserter which can only be tested by
his appearance in the witness box. If, on the other hand, they are
tendered for their circumstantial value to prove something other than
the truth of what is asserted, then they are admissible if what they
are tendered to prove is relevant to the enquiry.”
The present enquiry is
whether the Republic of Namibia played any part or connived in the
decision of the Republic of Botswana to deport the accused. The
evidence shows conclusively that it did not. The decision was
entirely that of Botswana in the legitimate exercise of its powers as
a sovereign State. Botswana merely informed Namibia of the decision
and provided Namibia with lists of the persons to be deported as
appears from the documentary evidence produced in this matter.
The accused happened to
be on the lists and the Namibian immigration officers duly handed
them over to the police who arrested them on Namibian soil and
charged them with high treason.
I find that the State
has satisfactorily discharged the onus of proving that all the
accused have been properly and lawfully brought before the Court.
Therefore the Court has
jurisdiction to try the accused and the special pleas are all
dismissed.
_______________
MANYARARA,
AJ
ON BEHALF OF THE APPLICANTS: MR. N. NDAUENDAPO
(ACCUSED 1 – 7, 9,10 & 12)
ADV. Z.J. GROBLER
(ACCUSED 11)
Instructed by: Directorate of Legal Aid
ON BEHALF OF THE RESPONDENT: ADV. D. SMALL &
ADV. A. LATEGAN
Instructed by: Office of the
Prosecutor-General
ON BEHALF OF THE STATE Mr Small
Instructed by: Office of the Prosecutor-General
ON BEHALF OF ACCUSED NO. 1–7,
9, 10 & 12 Mr Ndauendapo
Instructed
by:
ON BEHALF OF ACCUSED NO. 11 Mr Grobler
Instructed by:
S v Munuma and Others (CC3/04B ; CC03/04) [2005] NAHC 39 (25 October 2005);