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Press Releases: WATCHDOG UNSURPRISED BY TREASON RULING
Published: Mar 08, 2010 - 09:42 AMThis article received 124 reads.
March 7 2010
Namibia’s National Society for Human Rights (NSHR) is not surprised by last week’s Namibia High Court ruling that Caprivi High Treason Trialists (CHTT) had been subjected to torture and or other cruel, inhuman or degrading treatment (TCIDT) during pre-trial interrogations.
In a trial-within-a-trial judgment delivered on March 3 2010, the High Court declared inadmissible as evidence all of the statements allegedly made by 26 of the now only 115 of the originally more than 130 treason trialists. The trialists are facing over of 270 high treason offenses each, following an alleged secessionist armed attack on at least three State installations in Namibia’s Caprivi Region on August 2 1999. The High Court declared the “evidence” inadmissible because it had been obtained through TCIDT and in gross contravention of the exclusionary principle as enunciated under the Namibian Constitution and the country principal criminal code, the Criminal Procedure Act 1977 (Act 51 of 1977), as amended.
Articles 8(2) (b) and 12(1) (f) of the Constitution as well as Sections 217 and 219A of the Criminal Procedure Act 1977 (Act 51 of 1977), as amended, preclude tainted evidence to admitted as testimony in any legal proceedings in the country.
In terms of the said Act, a confession or written admission by an accused person is admissible as evidence against that accused ONLY if it had been proven that the statement had been made freely and voluntarily by a person in his or her sound and sober senses and without the person having been unduly influenced to make such a statement.
The present ruling came more than nine (9) years after the arrest and brutal interrogations of the accused persons during which they had allegedly freely made self-incriminating statements to Police officers and even judicial officers. However, having been thoroughly knowledgeable that inter alia that TCIDT had extensively been used against the accused persons, and being deeply concerned that tainted evidence might be admitted in evidence against the accused, at the time numbering more than 130 males, NSHR unsuccessfully urged Namibia’s Chief Justice:
“to promptly order a separate trial in the marathon Caprivi high treason trial in order to ensure that no evidence before the High Court has been tainted through coercive means, including torture and other ill treatment […]. The proposed trial should take place before the resumption of the treason trial in the High Court on January 17 2006. This is a conditio sine qua non in order to ensure that the high treason trial is fair. In terms of the exclusionary rule doctrine, evidence gained through torture or ill treatment is inadmissible in any proceedings”.
In a Press Release issued on January 4 2006, NSHR noted that “[despite] the compelling evidence that torture and ill treatment have been extensively used against both suspects and certain witnesses, magistrates, judges, prosecutors and defense lawyers have, in our opinion, dismally failed in their obligation to ensure that allegations of torture and ill treatment of suspects during pre-trial interrogations and or custody have been promptly and effectively investigated” and, furthermore, that “[i]n terms of peremptory norms of general international law magistrates, judges, prosecutors and defense lawyers are under the obligation to play the positive role to ensure that allegations of torture or ill treatment of suspects and witnesses are immediately, effectively and impartially investigated with the view to ensure that all evidence obtained through torture or ill treatment is rendered impermissible, the perpetrators are prosecuted and punished and victims justly compensated”.
In his judgment, CHTT Judge Elton Hoff noted that some of the magistrates who took down the statements from the accused recorded that the suspects before them had told them that they had been assaulted, and that the magistrates had noted that numerous scars were visible on the accused persons’ bodies. However the magistrates did not go further into that issue to determine the circumstances of the alleged assaults and the effect of these on the accused persons’ claimed willingness to make the incriminating statements.
In his 83-page judgment Judge Hoff says that a magistrate who takes down a confession or admission being given by an accused person does not act like a recording machine, but has a duty, before taking down the statement, to be satisfied that the person before him or her is giving the statement freely and voluntarily. With several of the statements at issue in the trial within a trial the magistrates involved failed to carry out this duty.
In a head report on March 4 2010 Namibia’s leading independent daily Newspaper, The Namibian, noted that the ruling “could determine if the prosecution would opt to still forge ahead with further possible attempts to try to introduce other self-incriminating evidence, this time about places connected to the case that accused persons are alleged to have pointed out to Police officers, in a bid to build their case against the accused.”
In its January 11 2006 Opinion Piece, NSHR argued vehemently that “it is our firm belief that the high treason trial is procedurally flawed and very urgent corrective measures must be instituted before it is too late. To put the torture investigation on the back burner is, in our opinion, as preposterous as putting the cart before the horses.”
However, according to media reports on October 29 2002, the Office of the Prosecutor General decided that “the more serious charges of high treason” must first be dealt with before the TCIDT charges leveled against law enforcement officials have been handled. Virtually all the more than 130 CHTT suspects have on several occasions demonstrated that they have been subjected TCIDT during interrogations and even thereafter.
Acts of TCIDT as well as summary executions and enforced disappearances were systematically against suspects under a state of emergency which former Namibian President Sam Nujoma had imposed in the Caprivi Region on or around August 2 1999.
The ruling is a key decision in the trial of the 116 men who are accused of having been involved in an alleged conspiracy to take up arms to separate the Caprivi Region from Namibia between January 1992 and December 2003. At least 10 of the accused CHTT suspects have already been fond guilty and received dozens of years in prison sentences. NSHR suspects that most of them might have been subjected to TCIDT.
NSHR once again calls upon of the Office of Prosecutor General to prosecute over 40 Police and Army as well as intelligence operatives from the Office of the President for what amount to crimes against humanity.
In case of additional comment, please call Steven Mvula or Phil ya Nangoloh at Tel: (+264 61) 253 447 or 236 183) or Mobile: +264 811 406 888 (office hours) or +264 8129 12948 (Steven) or +264 811 299 886 (Phil) or E-mail: nshr@nshr.org.na
Articles 8(2) (b) and 12(1) (f) of the Constitution as well as Sections 217 and 219A of the Criminal Procedure Act 1977 (Act 51 of 1977), as amended, preclude tainted evidence to admitted as testimony in any legal proceedings in the country.
In terms of the said Act, a confession or written admission by an accused person is admissible as evidence against that accused ONLY if it had been proven that the statement had been made freely and voluntarily by a person in his or her sound and sober senses and without the person having been unduly influenced to make such a statement.
The present ruling came more than nine (9) years after the arrest and brutal interrogations of the accused persons during which they had allegedly freely made self-incriminating statements to Police officers and even judicial officers. However, having been thoroughly knowledgeable that inter alia that TCIDT had extensively been used against the accused persons, and being deeply concerned that tainted evidence might be admitted in evidence against the accused, at the time numbering more than 130 males, NSHR unsuccessfully urged Namibia’s Chief Justice:
“to promptly order a separate trial in the marathon Caprivi high treason trial in order to ensure that no evidence before the High Court has been tainted through coercive means, including torture and other ill treatment […]. The proposed trial should take place before the resumption of the treason trial in the High Court on January 17 2006. This is a conditio sine qua non in order to ensure that the high treason trial is fair. In terms of the exclusionary rule doctrine, evidence gained through torture or ill treatment is inadmissible in any proceedings”.
In a Press Release issued on January 4 2006, NSHR noted that “[despite] the compelling evidence that torture and ill treatment have been extensively used against both suspects and certain witnesses, magistrates, judges, prosecutors and defense lawyers have, in our opinion, dismally failed in their obligation to ensure that allegations of torture and ill treatment of suspects during pre-trial interrogations and or custody have been promptly and effectively investigated” and, furthermore, that “[i]n terms of peremptory norms of general international law magistrates, judges, prosecutors and defense lawyers are under the obligation to play the positive role to ensure that allegations of torture or ill treatment of suspects and witnesses are immediately, effectively and impartially investigated with the view to ensure that all evidence obtained through torture or ill treatment is rendered impermissible, the perpetrators are prosecuted and punished and victims justly compensated”.
In his judgment, CHTT Judge Elton Hoff noted that some of the magistrates who took down the statements from the accused recorded that the suspects before them had told them that they had been assaulted, and that the magistrates had noted that numerous scars were visible on the accused persons’ bodies. However the magistrates did not go further into that issue to determine the circumstances of the alleged assaults and the effect of these on the accused persons’ claimed willingness to make the incriminating statements.
In his 83-page judgment Judge Hoff says that a magistrate who takes down a confession or admission being given by an accused person does not act like a recording machine, but has a duty, before taking down the statement, to be satisfied that the person before him or her is giving the statement freely and voluntarily. With several of the statements at issue in the trial within a trial the magistrates involved failed to carry out this duty.
In a head report on March 4 2010 Namibia’s leading independent daily Newspaper, The Namibian, noted that the ruling “could determine if the prosecution would opt to still forge ahead with further possible attempts to try to introduce other self-incriminating evidence, this time about places connected to the case that accused persons are alleged to have pointed out to Police officers, in a bid to build their case against the accused.”
In its January 11 2006 Opinion Piece, NSHR argued vehemently that “it is our firm belief that the high treason trial is procedurally flawed and very urgent corrective measures must be instituted before it is too late. To put the torture investigation on the back burner is, in our opinion, as preposterous as putting the cart before the horses.”
However, according to media reports on October 29 2002, the Office of the Prosecutor General decided that “the more serious charges of high treason” must first be dealt with before the TCIDT charges leveled against law enforcement officials have been handled. Virtually all the more than 130 CHTT suspects have on several occasions demonstrated that they have been subjected TCIDT during interrogations and even thereafter.
Acts of TCIDT as well as summary executions and enforced disappearances were systematically against suspects under a state of emergency which former Namibian President Sam Nujoma had imposed in the Caprivi Region on or around August 2 1999.
The ruling is a key decision in the trial of the 116 men who are accused of having been involved in an alleged conspiracy to take up arms to separate the Caprivi Region from Namibia between January 1992 and December 2003. At least 10 of the accused CHTT suspects have already been fond guilty and received dozens of years in prison sentences. NSHR suspects that most of them might have been subjected to TCIDT.
NSHR once again calls upon of the Office of Prosecutor General to prosecute over 40 Police and Army as well as intelligence operatives from the Office of the President for what amount to crimes against humanity.
In case of additional comment, please call Steven Mvula or Phil ya Nangoloh at Tel: (+264 61) 253 447 or 236 183) or Mobile: +264 811 406 888 (office hours) or +264 8129 12948 (Steven) or +264 811 299 886 (Phil) or E-mail: nshr@nshr.org.na
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