Windhoek
Five judges of the Namibian Supreme Court yesterday upheld an appeal by one of the remaining treason accused that the Namibian High Court has no jurisdiction to try him.
Deputy Chief Justice and Judge President Petrus Damaseb, with Chief Justice Peter Shivute, Justice of Appeal Dave Smuts, Acting Justice of Appeal Fred Chomba and Acting Justice of Appeal Yvonne Mokgoro concurring, found that the Namibian security forces abducted Boster Mubuyaeta Samuele from Botswana and as such Namibian courts have no jurisdiction to try him on any of the charges preferred against him.
They ordered a permanent stay of prosecution against him, which will have the effect that the accused may not be prosecuted again on any of the charges on which he was indicted in the present prosecution.
According to Deputy Chief Justice Damaseb, it is abundantly clear from the evidence before court that Samuele, together with other persons not involved in the appeal, was taken into custody by the Namibian police on Botswana territory.
“Namibian agents transported them to Namibia,” he stated. He said the police’s suggestion that they did not perform a sovereign act on Botswana territory as they only ‘received’ Samuele, is not consistent with an admission that his freedom was restricted upon him being surrendered to Namibian agents on Botswana soil.
According to the judge, it is clear from the evidence that Samuele was under the coercive power of Namibian agents. That, he said, was sufficient to constitute the performance by Namibian authorities in Botswana of a sovereign act of arrest in violation of international law.
He further contended it is “idle to suggest under those circumstance that seventh appellant (Samuele) was not under arrest by agents of Namibia on the territory of Botswana.”
“That arrest amounts to the exercise of a sovereign act by Namibia in the territory of Botswana and it matters not that it was sanctioned by the Botswana authorities,” the judge stated.
He went on to say: “We are satisfied that the High Court misdirected itself in holding that the Namibian authorities did not act unlawfully in removing the seventh appellant from Botswana and placing him within the jurisdiction of the courts of Namibia.”
But, he said, the same cannot be said for the other appellants, namely, Progress Kenyoka Munuma, Shine Samulandela Samulandela, Manuel Manepelo Makendano, Alex Sinjabata Mushakwa, Diamond Samunzala Salufu, Hoster Simasiku Ntombo and John Mazile Tembwe.
According to the deputy chief justice he is satisfied that the High Court correctly found that they (appellants) were received by Namibian officials on Namibian territory. He said on submission by Norman Tjombe, who acted on behalf of the appellants, it was clear that the appellants were brought to the Ngoma border post by Botswana officials.
“I am satisfied that it was established on the evidence beyond a reasonable doubt that the remaining appellants were brought on Namibian territory by agents of Botswana where they were surrendered to Namibian government officials,” he stated.
The eight men petitioned the chief justice to hear the appeal after High Court Judge Petrus Unengu first dismissed their application on jurisdiction and then refused an application for leave to appeal to the Supreme Court.
The eight claimed that they were abducted from Botswana and brought to Namibia by officials from the Namibian government with the full knowledge and cooperation of the Botswana government.
Judge Unengu dismissed the appeal application in March this year.
The accused except for Frederick Isaka Ntambila – who was arrested in the Zambezi Region, then Caprivi Region – questioned the High Court’s jurisdiction over them.
They are charged with counts of high treason, sedition, public violence and the illegal importation of weapons and ammunition.
It is alleged they took part in a conspiracy aimed at overthrowing the Namibian government in the former Caprivi Region between September 1998 and December 2003.
They were already convicted of high treason in July of 2007 and sentenced to jail terms ranging from 30 to 32 years.
The convictions and sentences were however set aside by the Supreme Court in July 2014 and it was ordered that they be retried in the High Court.
State Advocate Neville Mawambo appeared for the State.