Caprivi treason trial
Encyclopedia
The Caprivi treason trial is a trial in which the Government of Namibia
indicted 132 people for allegedly participating in the Caprivi conflict on the side of the Caprivi Liberation Army
in a period between 1992 and 2002. They have been charged with high treason
, murder, sedition
, and a host of other offenses, altogether 275 counts of criminal conduct.
This trial is the longest and largest trial in the history of Namibia. While it started in 2003, verdict
and prosecution
is outstanding for most of the accused. Ten separatists were convicted and sentenced to a combined 314-year jail term, two were acquitted. The other accused are still in jail, or have died in custody. Some of the alleged leaders of the sedition attempt were in exile at the time the Caprivi conflict peaked and have not been brought to court at all.
is a remnant of the Berlin Conference of 1884, at which the European powers divided sub-Saharan Africa amongst themselves, indifferent to its ethnology and often with inadequate knowledge of its geography. After the conference, European governments learned more about the geography of the interior and negotiated changes to boundaries agreed upon in Berlin. In 1890, German diplomat Leo von Caprivi
sought to gain access to the Zambezi River for the German colony of South-West Africa
, in order to give Germany an interior route to Africa's East Coast, where the German colony Tanganyika
was located. In the Heligoland-Zanzibar Treaty
, Germany gave up its interest in Zanzibar
in return for the island of Heligoland
in the North Sea and the Caprivi Strip. The Zambezi proved to be unnavigable, but the Strip remained, even as South-West Africa became Namibia
.
On 2 August 1999, members of the Caprivi Liberation Army (CLA) launched an armed attack on government forces and buildings in the regional capital of Katima Mulilo
in the Caprivi region
of north eastern Namibia. The same evening, president Sam Nujoma
declared a state of emergency
in the Caprivi province. Members of the Namibia Defence Force (NDF, Namibia's national army) and the Special Field Force
(SFF, the paramilitary police unit) were deployed and repelled the attack.
11 people were killed during the attacks, among them 6 members of the security forces. 300 suspected rebel fighters and civilian sympathizers were detained, 132 of which were later charged.
. The Namibian government has in the mean time recognised other traditional leaders who are perceived to be mere puppets of the ruling SWAPO party.
A number of Caprivi traditional leaders and politicians have been implicated but were in exile
at the time of the attacks:
applications, legal representation applications and other technical wrestles, the first stage of the trial started on 27 October 2003 in the High Court at Grootfontein.
Thirteen of the alleged separatists were regarded as the main accused and charged with high treason
. They were tried in a separate leg of the proceedings sometimes called the Second Caprivi treason trial. Sentencing and much of the court hearings took place in their absence because throughout the trial they had shouted political slogans and sung Caprivi liberation songs, leading repeatedly to their removal from the court room. In 2007 this second trial ended with ten of the accused convicted and sentenced to 30 or 32 years of jail each, depending on the length of their stay in custody, and the remaining two acquitted and set free on a technicality. The thirteenth accused had died in custody before the sentencing began.
All other people charged in this trial are essentially co-accused of these thirteen, charged with lesser offenses. They all plead
ed "not guilty" to all charges laid out to them. Their trial has not been concluded .
A number of secondary and tertiary trials have been split from the main proceedings, among them a number of counterclaims by the secessionists of unlawful arrest, torture and manhandling, but also the claim that Namibian courts do not have jurisdiction
over the Caprivi because the Caprivi Region is not part of the Republic of Namibia. This claim was taken to the Supreme Court
and dismissed but interrupted the first leg of the trial by 5 months. The claim of unlawful arrest — 13 of the accused were found to be unlawfully abducted
abroad — was at first successful when judge Hoff ruled in February 2004 that they were indeed "irregularly before the court". The 13 were, however, rearrested for treason 2 days after the court ruling and are in custody ever since.
In 2009 alone, 127 civil suits emerging from the alleged mistreatment of the treason detainees were heard. While some of these counterclaims have been dismissed, a large number has been settled out of court.
Further delays of the court proceedings were caused by:
Supreme Court judge Johan Strydom already stated in 2002 that the case "has all the makings of a logistical and organisational nightmare for both the prosecution and the defence and will no doubt run for a couple of years rather than months".
Already in 2003, Amnesty International
called on the Namibian Government to immediately resume the trial. , 114 of the accused are still in prison, and the trial is expected to drag on for much longer. Only four of the arrested have ever obtained bail. 17 of the trial awaiting prisoners have died in custody, some of them under questionable circumstances. Frequent reports of maltreatment, torture, medical neglect and unsanitary conditions in the holding cells have been made.
Various individuals and groups have called for the pardoning of the convicted, as well as for the release of the accused.
Another point of criticism has been the level of — even alleged — involvement in the sedition attempts of many of the detainees. Except John Samboma, commander of the Caprivi Liberation Army
, most of the alleged masterminds of the secession of the Caprivi are not among the group of people that have been arrested. A sizable fraction of the people imprisoned are not even thought to have participated in any violent action but might have been "arrested solely based on their actual or perceived non-violent support for the political opposition in the region, their ethnic identity or their membership of certain organizations". Amnesty International assumes they are actually prisoners of conscience
, and has requested they be tried or released on the spot.
Namibia
Namibia, officially the Republic of Namibia , is a country in southern Africa whose western border is the Atlantic Ocean. It shares land borders with Angola and Zambia to the north, Botswana to the east and South Africa to the south and east. It gained independence from South Africa on 21 March...
indicted 132 people for allegedly participating in the Caprivi conflict on the side of the Caprivi Liberation Army
Caprivi Liberation Army
Caprivi Liberation Army is a Namibian rebel and separatist group which was established in 1994 to separate the Caprivi Strip, a region mainly inhabited by the Lozi people. It operates only in the Caprivi strip.-Background:...
in a period between 1992 and 2002. They have been charged with high treason
High treason
High treason is criminal disloyalty to one's government. Participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplomats, or its secret services for a hostile and foreign power, or attempting to kill its head of state are perhaps...
, murder, sedition
Sedition
In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority. Sedition may include any...
, and a host of other offenses, altogether 275 counts of criminal conduct.
This trial is the longest and largest trial in the history of Namibia. While it started in 2003, verdict
Verdict
In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. The term, from the Latin veredictum, literally means "to say the truth" and is derived from Middle English verdit, from Anglo-Norman: a compound of ver and dit In law, a verdict...
and prosecution
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
is outstanding for most of the accused. Ten separatists were convicted and sentenced to a combined 314-year jail term, two were acquitted. The other accused are still in jail, or have died in custody. Some of the alleged leaders of the sedition attempt were in exile at the time the Caprivi conflict peaked and have not been brought to court at all.
Background
The Caprivi StripCaprivi Strip
Caprivi, sometimes called the Caprivi Strip , Caprivi Panhandle or the Okavango Strip and formally known as Itenge, is a narrow protrusion of Namibia eastwards about , between Botswana to the south, Angola and Zambia to the north, and Okavango Region to the west. Caprivi is bordered by the...
is a remnant of the Berlin Conference of 1884, at which the European powers divided sub-Saharan Africa amongst themselves, indifferent to its ethnology and often with inadequate knowledge of its geography. After the conference, European governments learned more about the geography of the interior and negotiated changes to boundaries agreed upon in Berlin. In 1890, German diplomat Leo von Caprivi
Leo von Caprivi
Georg Leo Graf von Caprivi de Caprera de Montecuccoli was a German major general and statesman, who succeeded Otto von Bismarck as Chancellor of Germany...
sought to gain access to the Zambezi River for the German colony of South-West Africa
German South-West Africa
German South West Africa was a colony of Germany from 1884 until 1915, when it was taken over by South Africa and administered as South West Africa, finally becoming Namibia in 1990...
, in order to give Germany an interior route to Africa's East Coast, where the German colony Tanganyika
Tanganyika
Tanganyika , later formally the Republic of Tanganyika, was a sovereign state in East Africa from 1961 to 1964. It was situated between the Indian Ocean and the African Great Lakes of Lake Victoria, Lake Malawi and Lake Tanganyika...
was located. In the Heligoland-Zanzibar Treaty
Heligoland-Zanzibar Treaty
The Heligoland-Zanzibar Treaty of 1 July 1890 was an agreement between the United Kingdom and the German Empire concerning mainly territorial interests in Africa.-Terms:...
, Germany gave up its interest in Zanzibar
Zanzibar
Zanzibar ,Persian: زنگبار, from suffix bār: "coast" and Zangi: "bruin" ; is a semi-autonomous part of Tanzania, in East Africa. It comprises the Zanzibar Archipelago in the Indian Ocean, off the coast of the mainland, and consists of numerous small islands and two large ones: Unguja , and Pemba...
in return for the island of Heligoland
Heligoland
Heligoland is a small German archipelago in the North Sea.Formerly Danish and British possessions, the islands are located in the Heligoland Bight in the south-eastern corner of the North Sea...
in the North Sea and the Caprivi Strip. The Zambezi proved to be unnavigable, but the Strip remained, even as South-West Africa became Namibia
Namibia
Namibia, officially the Republic of Namibia , is a country in southern Africa whose western border is the Atlantic Ocean. It shares land borders with Angola and Zambia to the north, Botswana to the east and South Africa to the south and east. It gained independence from South Africa on 21 March...
.
On 2 August 1999, members of the Caprivi Liberation Army (CLA) launched an armed attack on government forces and buildings in the regional capital of Katima Mulilo
Katima Mulilo
Katima Mulilo is the capital of the Caprivi Strip, Namibia's far north–east extension into central Southern Africa. It comprises two electoral constituencies, Katima Mulilo Rural and Katima Mulilo Urban...
in the Caprivi region
Caprivi Region
Caprivi is one of the 13 regions of Namibia. It takes its name from the Caprivi Strip which in turn was named after Leo von Caprivi.-Geography:...
of north eastern Namibia. The same evening, president Sam Nujoma
Sam Nujoma
Samuel Daniel Shafiishuna Nujoma is a Namibian politician who was the first President of Namibia from 1990 to 2005. He led the South-West Africa People's Organisation in its long struggle against South African rule and took office as President when Namibia obtained independence on 21 March 1990...
declared a state of emergency
State of emergency
A state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviours, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale...
in the Caprivi province. Members of the Namibia Defence Force (NDF, Namibia's national army) and the Special Field Force
Special Field Force
The Special Field Force is a Namibian paramilitary police unit created in 1995 by the late commissioner Ruben "danger" Ashipala as an auxiliary aggressive Unit to complement the Special Reserve Force. It encompasses border guards, VIP Protection Unit and Installation unit...
(SFF, the paramilitary police unit) were deployed and repelled the attack.
11 people were killed during the attacks, among them 6 members of the security forces. 300 suspected rebel fighters and civilian sympathizers were detained, 132 of which were later charged.
Charges and indicted people
Many of the arrested people are from the Mafwe tribe, including the majority of its traditional leadershipTraditional authority
Traditional authority is a form of leadership in which the authority of an organization or a ruling regime is largely tied to tradition or custom...
. The Namibian government has in the mean time recognised other traditional leaders who are perceived to be mere puppets of the ruling SWAPO party.
A number of Caprivi traditional leaders and politicians have been implicated but were in exile
Exile
Exile means to be away from one's home , while either being explicitly refused permission to return and/or being threatened with imprisonment or death upon return...
at the time of the attacks:
- Mishake MuyongoMishake MuyongoMishake Muyongo is a Namibian politician and former Member of Parliament who is living in exile in Denmark.Muyongo was born in Linyanti. In September 1964 Muyongo became President of the Caprivi African National Union when its leader Simbwaye was arrested and disappeared in South-African custody...
, former leader of the Democratic Turnhalle Alliance (DTA) and member of the National Assembly from 1990 to 1999, was granted asylum in DenmarkDenmarkDenmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark... - John MabukuJohn MabukuJohn Mabuku was the governor of Caprivi Region in Namibia and secessionist supporter of an independent Caprivi Strip. Mabuku, a former Democratic Turnhalle Alliance National Council member, fled to exile in Botswana with former DTA leader Mishake Muyongo following a failed separatist revolt in...
, former Democratic Turnhalle Alliance National Council member and governor of Caprivi Region, died in exile in BotswanaBotswanaBotswana, officially the Republic of Botswana , is a landlocked country located in Southern Africa. The citizens are referred to as "Batswana" . Formerly the British protectorate of Bechuanaland, Botswana adopted its new name after becoming independent within the Commonwealth on 30 September 1966...
in 2008 - Bonifatius Mamili, former Mafwe chiefTribal chiefA tribal chief is the leader of a tribal society or chiefdom. Tribal societies with social stratification under a single leader emerged in the Neolithic period out of earlier tribal structures with little stratification, and they remained prevalent throughout the Iron Age.In the case of ...
, was granted asylum in Denmark
Judges of the trial
- Elton Hoff, judge at the High Court at GrootfonteinGrootfonteinGrootfontein is a city of 14,200 inhabitants in the Otjozondjupa Region of central Namibia. It is one of the three towns in the Otavi Triangle, situated on the B8 national road that leads from Windhoek to the Caprivi Strip...
, heard the first stage of the trial - Johan Strydom, Chief JusticeChief Justice of NamibiaThe Chief Justice of Namibia is the head of the Supreme Court of Namibia, the highest appellate court in Namibia. It is the highest post in the Namibia's judicial system, presiding over the operation of the supreme court...
in the Supreme CourtSupreme Court of NamibiaThe Supreme Court of Namibia is the supreme court in all matters under Namibian law. It is the court of last resort and highest appellate court in the country. It is located in the centre of the capital Windhoek.-History:...
at WindhoekWindhoekWindhoek is the capital and largest city of the Republic of Namibia. It is located in central Namibia in the Khomas Highland plateau area, at around above sea level. The 2001 census determined Windhoek's population was 233,529...
, ordered (Government of Namibia and Others vs. Mwilima and Others) government to provide the treason suspects with legal representation in 2002 - John ManyararaJohn ManyararaJohn Oliver Manyarara was a judge at the High Court of Zimbabwe, Judge of Appeal of the Zimbabwe Supreme Court, and Acting Judge at the High Court in Windhoek, Namibia...
, acting judge at the High Court in Windhoek, heard the second part of the trial - Judges of Appeal Maritz, Strydom, and Mtambanengwe in the Supreme Court decided (State vs. Malumo and 24 Others) that confessions from 25 accused are inadmissible before the High Court in Windhoek due to the occurrence of "coercive actions" at the hands of Police or military to obtain the testimonies.
Structure of the trial
The main Caprivi treason trial consists of 275 charges of murder, sedition, and treason, applied to 132 people. After preliminary hearings, bailBail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
applications, legal representation applications and other technical wrestles, the first stage of the trial started on 27 October 2003 in the High Court at Grootfontein.
Thirteen of the alleged separatists were regarded as the main accused and charged with high treason
High treason
High treason is criminal disloyalty to one's government. Participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplomats, or its secret services for a hostile and foreign power, or attempting to kill its head of state are perhaps...
. They were tried in a separate leg of the proceedings sometimes called the Second Caprivi treason trial. Sentencing and much of the court hearings took place in their absence because throughout the trial they had shouted political slogans and sung Caprivi liberation songs, leading repeatedly to their removal from the court room. In 2007 this second trial ended with ten of the accused convicted and sentenced to 30 or 32 years of jail each, depending on the length of their stay in custody, and the remaining two acquitted and set free on a technicality. The thirteenth accused had died in custody before the sentencing began.
All other people charged in this trial are essentially co-accused of these thirteen, charged with lesser offenses. They all plead
Pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...
ed "not guilty" to all charges laid out to them. Their trial has not been concluded .
A number of secondary and tertiary trials have been split from the main proceedings, among them a number of counterclaims by the secessionists of unlawful arrest, torture and manhandling, but also the claim that Namibian courts do not have jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
over the Caprivi because the Caprivi Region is not part of the Republic of Namibia. This claim was taken to the Supreme Court
Supreme Court of Namibia
The Supreme Court of Namibia is the supreme court in all matters under Namibian law. It is the court of last resort and highest appellate court in the country. It is located in the centre of the capital Windhoek.-History:...
and dismissed but interrupted the first leg of the trial by 5 months. The claim of unlawful arrest — 13 of the accused were found to be unlawfully abducted
Kidnapping
In criminal law, kidnapping is the taking away or transportation of a person against that person's will, usually to hold the person in false imprisonment, a confinement without legal authority...
abroad — was at first successful when judge Hoff ruled in February 2004 that they were indeed "irregularly before the court". The 13 were, however, rearrested for treason 2 days after the court ruling and are in custody ever since.
In 2009 alone, 127 civil suits emerging from the alleged mistreatment of the treason detainees were heard. While some of these counterclaims have been dismissed, a large number has been settled out of court.
Delay of the trial
The Caprivi Treason Trial has been delayed by a number of factors, most prominently by its sheer size and the accompanying paper trail. Already in 2007, the trial transcripts amounted to more than 18,000 type-written pages, and 230 full days had been spent in court. This makes it by far the longest and largest trial in the history of Namibia, frequently swallowing around half of all legal assistance funds budgeted by the Namibian Ministry of Justice.Further delays of the court proceedings were caused by:
- Withdrawal of defence counsels in 2004 after some of the accused questioned the jurisdiction of Namibian courts over Caprivi territory
- Car accident of the prosecution team on their way to the court hearings in 2005 which left one prosecutor dead and two prosecutors-general in critical condition
- Quarrels over salary issues between local and foreign lawyers
Supreme Court judge Johan Strydom already stated in 2002 that the case "has all the makings of a logistical and organisational nightmare for both the prosecution and the defence and will no doubt run for a couple of years rather than months".
Criticism
Both the massive delays of the trial and the treatment of the accused have been criticised by a host of local, regional, and international organisations.Already in 2003, Amnesty International
Amnesty International
Amnesty International is an international non-governmental organisation whose stated mission is "to conduct research and generate action to prevent and end grave abuses of human rights, and to demand justice for those whose rights have been violated."Following a publication of Peter Benenson's...
called on the Namibian Government to immediately resume the trial. , 114 of the accused are still in prison, and the trial is expected to drag on for much longer. Only four of the arrested have ever obtained bail. 17 of the trial awaiting prisoners have died in custody, some of them under questionable circumstances. Frequent reports of maltreatment, torture, medical neglect and unsanitary conditions in the holding cells have been made.
Various individuals and groups have called for the pardoning of the convicted, as well as for the release of the accused.
Another point of criticism has been the level of — even alleged — involvement in the sedition attempts of many of the detainees. Except John Samboma, commander of the Caprivi Liberation Army
Caprivi Liberation Army
Caprivi Liberation Army is a Namibian rebel and separatist group which was established in 1994 to separate the Caprivi Strip, a region mainly inhabited by the Lozi people. It operates only in the Caprivi strip.-Background:...
, most of the alleged masterminds of the secession of the Caprivi are not among the group of people that have been arrested. A sizable fraction of the people imprisoned are not even thought to have participated in any violent action but might have been "arrested solely based on their actual or perceived non-violent support for the political opposition in the region, their ethnic identity or their membership of certain organizations". Amnesty International assumes they are actually prisoners of conscience
Prisoner of conscience
Prisoner of conscience is a term defined in Peter Benenson's 1961 article "The Forgotten Prisoners" often used by the human rights group Amnesty International. It can refer to anyone imprisoned because of their race, religion, or political views...
, and has requested they be tried or released on the spot.