Roland Routh
Windhoek-The eight men still on trial for various counts of high treason, sedition, public violence and the illegal importation of weapons and ammunition have lodged yet another jurisdiction challenge.
It is alleged they took part in a conspiracy aimed at overthrowing the Namibian government in the then Caprivi between September 1998 and December 2003.
This time they say the Namibian courts have no jurisdiction over them as they did not owe any allegiance to her when the offences were committed. In any event, their legal representatives, Ilse Aggenbach and Jorg Neves, say the men were not even in Namibia when the events unfolded.
However, Aggenbach who appears for six of the accused, said they bona fide and genuinely believe that the history of the former Caprivi, now called Zambezi Region, shows that it was not part of the territory which formerly constituted the German Protectorate of South West Africa (GSWA), but that it was instead a former British Protectorate.
According to them, Britain allowed Germany in 1890 restricted rights of free trade passage from the very north of the Damaraland (GSWA) territory along a strip of territory, which at no point shall be greater than 20 English miles in width going along the Portuguese border, giving Germany free trade passage to the Zambezi River to reach her colony in East Africa, the former Tanganyika.
“This strip of free transit rights allowed over a strip of British Territory and possession and did not cross over the ECZ (Zambezi) which lies east of the Chobe River and these transit rights did not result in Germany acquiring sovereignty over the ECZ,” Aggenbach stated.
She further said this also did not mean the former Caprivi Strip became part of the Union of South Africa and the Republic of South Africa as successor to Britain or of Bechuanaland (Botswana).
This also means that the former Caprivi also did not become part of the mandated territory of GSWA, she added.
According to Aggenbach, South Africa all along separately administered the former Caprivi and “simply for the sake of administrative convenience separately provided for the former Caprivi in the South West Africa Constitution Act, Act 39 of 1968”.
This meant, Aggenbach said, that when Namibia was granted independence in 1990, it did not automatically include the former Caprivi as it had not been part of GSWA and hence of the mandated territory.
“Only the enclave of Walvis Bay and the offshore islands of Namibia were added to the territory which formerly constituted the German Protectorate of SWA, and its southern boundary was extended to the middle of the Orange River through the organs of the United Nations,” Aggenbach stated.
In essence this means that the former Caprivi did not become part of the national territory of the Republic of Namibia as defined in Article 1.4 of the Namibian Constitution (The Republic of Namibia is hereby established as a sovereign, secular, democratic and unitary State founded upon the principles of democracy, the rule of law and justice for all) upon Namibian independence, she said and continued: “The ECZ remained a British territory and/or part of South Africa.”
For this reason, inter alia, Namibia has no jurisdiction over the accused, Aggenbach stressed with concurrence from Neves.
State Advocate Neville Mawambo asked the court for a postponement to consult with his witnesses and prepare a reply to the special plea, and the trial was postponed to July 24.
The eight men who have been in custody since their arrest are Progress Kenyoka Munuma Munuma, Shine Samulandela Samulandela, Manuel Manepelo Makendano, Alex Sinjabata Mushakwa, Diamond Samunzala Salufu, Hoster Simasiku Ntombo, Frederick Isaka Ntambila and John Mazile Tembwe.