Roland Routh
Windhoek-One of the men acquitted on treason charges after a successful Section 174 application was given the greenlight last week by High Court Judge Hannelie Prinsloo to sue the prosecutor general (PG) for continued malicious prosecution.
According to the judge, the PG should have stopped the prosecution and continued detention of Aggrey Simasiku Mwambwa after realising there was not enough evidence to convict him. Mwambwa was arrested on March 16, 2000, while busy working as a taxi driver in Katima Mulilo together with Richwell Mahupelo and Bennet Matuso, whom he was transporting at a fee in his taxi.
He was then charged with high treason, among others, in relation to armed attacks on August 2, 1999, which caused the deaths of eight policemen and extensive damage to buildings in and around Katima Mulilo.
That action led to mass arrests and was followed by what remains the longest running trial in the history of Namibia, dubbed the “Treason Trial.”
Following years of court proceedings 43 accused were acquitted after successfully applying for release under Section 174 of the Criminal Procedure Act that authorises the courts to discharge an accused at the end of the State’s case if sufficient evidence to convict was not produced.
After his acquittal Mwambwa instituted court proceedings against the Namibian Police Force for unlawful arrest and detention and against the PG for unlawful or malicious prosecution, alternatively that his continued prosecution was without any reasonable or probable cause and the trial should have been stopped in terms of Section 6 (b) of the Criminal Procedure Act.
This section provides that at any time after an accused has pleaded, but before conviction, the prosecution in respect of that charge can be stopped and the accused acquitted in respect of that charge. Judge Prinsloo discharged the claims against the police saying they were only doing their job and that there is no evidence that it was the Minister of Safety and Security that instigated the prosecution of Mwambwa and as such the claims against them cannot succeed. She further found that Mwambwa failed to prove the PG acted with malice in initiating the prosecution against him or that the PG instigated the proceedings with the aim to injure him.
She, however, upheld the alternative claim of continued malicious prosecution. “Having considered all the facts in this matter, I find that the plaintiff made out a case on the balance of probabilities on the alternative claim, i.e. the claim based upon the wrongful and malicious continuation of the prosecution as at March 06, 2006, in the alternative October 18, 2011 for the crimes set out in the indictment, only against the second defendant and/or her employees,” the judge stated.
According to her, the prosecution should have stopped the prosecution of Mwambwa after they closed their case against him, withdrew the charges and released him.
“I appreciate the fact that the treason case was unique and exceptional in nature and the magnitude and ‘after the fact attack’ on the propriety on the public prosecutor’s decision to initiate or continue proceedings against the plaintiff should be avoided. I agree that the decision to initiate or continue criminal prosecution lies at the core of prosecutorial discretion which enjoys constitutional protection,” the judge said, but asked: “How far should the constitutional protection that the prosecution authority enjoys be taken?”
She further said that the prosecuting authority should have realised that there are no longer any witnesses to implicate the plaintiff in the commission of the offences and incorrectly relied on the possibility of co-accused persons to implicate the plaintiff.
Whether the continued prosecution was malice can only be determined if it can be established that the PG continued the prosecution without reasonable grounds, Judge Prinsloo said. In this regard she said: “There is nothing before this court motivating the further prosecution of the plaintiff in spite of the fact that no prima facie case was made out against him, as is clear from the ruling of the honorable court during the 174 proceedings.”
Judge Prinsloo ordered the costs of the proceedings be borne by the office of the PG and the Namibian government on the scale of one instructing and one instructed counsel. She then postponed the matter to May 17 for status hearing as the matter is returned to the roll to deal with the issue of damages.
Advocate Reinhardt Totemeyer SC instructed by Kangueehi and Kavendjii Inc. appeared for Mwambwa and Advocate Ishmael Semenya assisted by Nixon Marcus appeared on behalf of the defendants on instructions of the government attorneys.