Caprivi treason trial
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The Caprivi treason trial is a trial in which the Government of
Namibia Namibia (, ), officially the Republic of Namibia, is a country in Southern Africa. Its western border is the Atlantic Ocean. It shares land borders with Zambia and Angola to the north, Botswana to the east and South Africa to the south and ea ...
indicted 132 people for allegedly participating in the Caprivi conflict on the side of the
Caprivi Liberation Army Caprivi Liberation Army (CLA) 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 The Caprivi Str ...
during a period between 1992 and 2002. They were charged with
high treason Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplo ...
, murder,
sedition Sedition is overt conduct, such as speech and organization, that tends toward rebellion against the established order. Sedition often includes subversion of a constitution and incitement of discontent toward, or insurrection against, estab ...
, and many other offences, altogether 278 counts of criminal conduct. The trial is the longest and largest in the history of Namibia. While it started in 2003, the court case lasted more than 16 years, with High Court judgement being delivered in December 2015, and a Supreme Court challenge being launched in 2016 and still verdict pending. According to ''
The Namibian ''The'' () is a grammatical article in English, denoting persons or things already mentioned, under discussion, implied or otherwise presumed familiar to listeners, readers, or speakers. It is the definite article in English. ''The'' is the m ...
'' newspaper, the High Court judgement sentenced "30 men convicted of high treason, nine counts of murder and 90 charges of attempted murder". Among those initially tried, the High Court ruling acquitted 79 of the accused. Meanwhile, 22 others died in custody during the 16-year period between arrests and High Court judgement. 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.


Background

The
Caprivi Strip The Caprivi Strip, also known simply as Caprivi, is a geographic salient protruding from the northeastern corner of Namibia. It is surrounded by Botswana to the south and Angola and Zambia to the north. Namibia, Botswana and Zambia meet at a sin ...
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 Georg Leo Graf von Caprivi de Caprara de Montecuccoli (English: ''Count George Leo of Caprivi, Caprara, and Montecuccoli''; born Georg Leo von Caprivi; 24 February 1831 – 6 February 1899) was a German general and statesman who served as the cha ...
sought to gain access to the
Zambezi River The Zambezi River (also spelled Zambeze and Zambesi) is the fourth-longest river in Africa, the longest east-flowing river in Africa and the largest flowing into the Indian Ocean from Africa. Its drainage basin covers , slightly less than hal ...
for the German colony of
South West Africa South West Africa ( af, Suidwes-Afrika; german: Südwestafrika; nl, Zuidwest-Afrika) was a territory under South African administration from 1915 to 1990, after which it became modern-day Namibia. It bordered Angola (Portuguese colony before 1 ...
, to give Germany an interior route to Africa's East Coast, where the German colony
Tanganyika Tanganyika may refer to: Places * Tanganyika Territory (1916–1961), a former British territory which preceded the sovereign state * Tanganyika (1961–1964), a sovereign state, comprising the mainland part of present-day Tanzania * Tanzania Main ...
was located. In the Heligoland-Zanzibar Treaty, Germany gave up its interest in
Zanzibar Zanzibar (; ; ) is an insular semi-autonomous province which united with Tanganyika in 1964 to form the United Republic of Tanzania. It is an archipelago in the Indian Ocean, off the coast of the mainland, and consists of many small islands ...
in return for the island of
Heligoland Heligoland (; german: Helgoland, ; Heligolandic Frisian: , , Mooring Frisian: , da, Helgoland) is a small archipelago in the North Sea. A part of the German state of Schleswig-Holstein since 1890, the islands were historically possessions ...
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 (, ), officially the Republic of Namibia, is a country in Southern Africa. Its western border is the Atlantic Ocean. It shares land borders with Zambia and Angola to the north, Botswana to the east and South Africa to the south and ea ...
. 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 or simply Katima is the capital of the Zambezi Region in Namibia. It is located in the Caprivi Strip. It had 28,362 inhabitants in 2010, and comprises two electoral constituencies, Katima Mulilo Rural and Katima Mulilo Urban. I ...
in the
Zambezi Region The Zambezi Region is one of the 14 regions of Namibia. It is located in the north-eastern part of the country. It is largely concurrent with the major Zambezi River where it gets its name from. The region has eight constituencies and its capit ...
of north eastern Namibia. The same evening, president
Sam Nujoma Samuel Shafiishuna Daniel Nujoma, (; born 12 May 1929) is a Namibian revolutionary, anti-apartheid activist and politician who served three terms as the first President of Namibia, from 1990 to 2005. Nujoma was a founding member and the first ...
declared a
state of emergency A state of emergency is a situation in which a government is empowered to be able to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state du ...
in the Caprivi province. Members of the
Namibia Defence Force The Namibian Defence Force (NDF) comprises the national military forces of Namibia. It was created when the country, then known as South West Africa, gained independence from South Africa in 1990. Chapter 15 of the Constitution of Namibia establ ...
(NDF, Namibia's national army) and the
Special Field Force The Special Field Force (SFF) is a Namibian Namibian Police Force, Police Force paramilitary police unit created in 1995 by the late commissioner Danger Ashipala, Ruben "Danger" Ashipala as an auxiliary aggressive unit to complement the Special Rese ...
(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 sympathisers were detained, 132 of which were later charged.


Charges and indicted people

Many of the arrested people are from the
Mafwe The Mafwe are one of the tribal peoples of the country of Namibia, and one of the 38 groups that comprise the Lozi people. Fwe language: https://en.wikipedia.org/wiki/Fwe_language Kings and leaders Leaders since Kabende Sita carry the honorary ti ...
tribe, including the majority of its traditional leadership. The Namibian government has in the meantime recognised other traditional leaders who are perceived to be mere puppets of the ruling
SWAPO The South West Africa People's Organisation (, SWAPO; af, Suidwes-Afrikaanse Volks Organisasie, SWAVO; german: Südwestafrikanische Volksorganisation, SWAVO), officially known as the SWAPO Party of Namibia, is a political party and former ind ...
party. Among the suspected leading figures detained and charged are: * John Samboma, allegedly the commander of the
Caprivi Liberation Army Caprivi Liberation Army (CLA) 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 The Caprivi Str ...
, * Geoffrey Mwilima, former member of Namibia's National Assembly, * Aggrey Makendano * Thaddeus Ndala * Osbert Likanyi * Charles Mushakwa * Martin Tubaundule * Andreas Mulupa * Richard Misuha * John Samati * Oscar Muyuka Puteho A number of Caprivi traditional leaders and politicians have been implicated but were in
exile Exile is primarily penal expulsion from one's native country, and secondarily expatriation or prolonged absence from one's homeland under either the compulsion of circumstance or the rigors of some high purpose. Usually persons and peoples suf ...
at the time of the attacks: *
Mishake Muyongo Albert Mishake Muyongo (born 28 April 1944) is a Namibian politician and former Member of Parliament who is living in exile in Denmark. Muyongo was born into Mafwe Royal House in Linyanti, South West Africa. He received education at the Roman ...
, former leader of the
Democratic Turnhalle Alliance The Popular Democratic Movement (PDM), formerly the Democratic Turnhalle Alliance (DTA), is an amalgamation of political parties in Namibia, registered as one singular party for representation purposes. In coalition with the United Democratic ...
(DTA) and member of the National Assembly from 1990 to 1999, was granted asylum in
Denmark ) , song = ( en, "King Christian stood by the lofty mast") , song_type = National and royal anthem , image_map = EU-Denmark.svg , map_caption = , subdivision_type = Sovereign state , subdivision_name = Danish Realm, Kingdom of Denmark ...
* John Mabuku, former
Democratic Turnhalle Alliance The Popular Democratic Movement (PDM), formerly the Democratic Turnhalle Alliance (DTA), is an amalgamation of political parties in Namibia, registered as one singular party for representation purposes. In coalition with the United Democratic ...
National Council member and governor of Caprivi Region (today Zambezi Region), died in exile in
Botswana Botswana (, ), officially the Republic of Botswana ( tn, Lefatshe la Botswana, label=Setswana, ), is a landlocked country in Southern Africa. Botswana is topographically flat, with approximately 70 percent of its territory being the Kalahar ...
in 2008 *
Boniface Mamili Boniface, OSB ( la, Bonifatius; 675 – 5 June 754) was an English Benedictines, Benedictine monk and leading figure in the Anglo-Saxon mission to the Germanic parts of the Frankish Empire during the eighth century. He organised significant ...
, former Mafwe
chief Chief may refer to: Title or rank Military and law enforcement * Chief master sergeant, the ninth, and highest, enlisted rank in the U.S. Air Force and U.S. Space Force * Chief of police, the head of a police department * Chief of the boa ...
, was granted asylum in Denmark Botswana, Denmark and Canada have been granting asylum to people fleeing Namibia in the aftermath of the attack on Katima Mulilo. Only in 2010 Canada has changed its standpoint and is now considering the CLA to be a terrorist organisation that has "attempted to usurp an elected government".


Judges of the trial

*
Elton Hoff Elton may refer to: Places England * Elton, Cambridgeshire (formerly Huntingdonshire), a village ** Elton Hall, a baronial hall * Elton, Cheshire, a village and civil parish * Elton, County Durham, a village and civil parish * Elton, Derbyshir ...
, judge at the High Court at
Grootfontein , nickname = , settlement_type = City , motto = Fons Vitæ , image_skyline = Grootfontein grass.jpg , imagesize = 300px , image_caption = , image_flag = , flag_si ...
, heard the first leg of the trial and again took over after the death of Judge Manyarara in 2010. * Johan Strydom, Chief Justice in the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
at
Windhoek Windhoek (, , ) is the capital and largest city of Namibia. It is located in central Namibia in the Khomas Highland plateau area, at around above sea level, almost exactly at the country's geographical centre. The population of Windhoek in 20 ...
, ordered (''Government of Namibia and Others vs. Mwilima and Others'') government to provide the treason suspects with legal representation in 2002 * John Manyarara, acting judge at the High Court in Windhoek, heard the second leg 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. * Acting judge of the Windhoek High Court Philanda Christiaan ruled in 2017 that the continued prosecution of one of the accused, Rosco Matengu Makapa, was malicious on the part of the prosecutor-general, and that Makapa is to be compensated for his losses. The judgment is likely to be appealed in the Supreme Court. * Marlene Tommasi, judge at the High Court in
Oshakati Oshakati is a town in northern Namibia. It is the regional capital of the Oshana Region and one of Namibia's largest places. Oshakati was founded in July 1966 and proclaimed a town in 1992. The town was used as a base of operations by the S ...
, heard the third leg of the trial


Structure of the trial

The Caprivi treason trial consists of 275 charges of murder, sedition, and treason, applied to 132 people. After preliminary hearings, 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 Treason is the crime of attacking a state authority to which one owes allegiance. This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplo ...
. 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. The conviction of eight of the thirteen main accused was overthrown in the Supreme Court in 2013. They have to be retried in the High Court but are in custody. A number of secondary and tertiary trials have been split from the main proceedings, among them a number of counterclaims by the alleged secessionists of unlawful arrest, torture and manhandling, but also the claim that Namibian courts do not have
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. Jur ...
over the Caprivi because the Caprivi Strip is not part of the Republic of Namibia. This claim was taken to the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
and dismissed in July 2004. It interrupted the first leg of the trial by 5 months. In June 2013 this Supreme Court ruling was vacated because Mtabanengwe, one of the Supreme Court judges in 2004, had also served as chairman of the Advisory Board that reviewed how people were arrested while the Caprivi Region was under a
state of emergency A state of emergency is a situation in which a government is empowered to be able to put through policies that it would normally not be permitted to do, for the safety and protection of its citizens. A government can declare such a state du ...
on 2 August 1999. Another claim brought forward by the 13 main accused was one of
unlawful arrest False arrest, Unlawful arrest or Wrongful arrest is a common law tort, where a plaintiff alleges they were held in custody without probable cause, or without an order issued by a court of competent jurisdiction. Although it is possible to sue ...
—the 13 main 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 sentenced the same year. One accused, Albius Moto Liseli, handed himself over to the authorities in 2009. He was charged with high treason in 2010 and tried separately. The six years of proceedings against Liseli are called the ''Third Caprivi treason trial''. Liseli was convicted and sentenced to 10 years in jail in 2017. All other people charged in this trial are essentially co-accused of these thirteen, charged with lesser offences. They all
plead In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adjudi ...
ed "not guilty" to all charges laid out to them. In February 2013, 43 accused were acquitted on all charges and set free when Judge Hoff found that the prosecution's evidence did not support any of the charges they were accused of. The majority of these 43 had been in custody since 1999. The trial of the remaining people has not been concluded yet. In 2009 alone, 127
civil suit - A lawsuit is a proceeding by a party or parties against another in the Civil law (common law), civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in re ...
s 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 In law, a settlement is a resolution between disputing parties about a legal case, reached either before or after court action begins. A collective settlement is a settlement of multiple similar legal cases. The term also has other meanings in t ...
. In 2015 Rodwell Kasika Mukendwa, one of the main accused, sued the government and several officials, saying that he had been wrongfully arrested in 1999 and wrongfully detained until 2012, when he was acquitted. In 2015, High Court Judge Elton Hoff presented his ruling and found 30 of the accused guilty of high treason, murder and attempted murder.


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. This and other car accidents led to a transfer of court hearings to
Windhoek Central Prison Windhoek (, , ) is the capital and largest city of Namibia. It is located in central Namibia in the Khomas Highland plateau area, at around above sea level, almost exactly at the country's geographical centre. The population of Windhoek in 20 ...
, where part of the complex was restructured into a special court. * Quarrels over salary issues between local and foreign lawyers * The September 2012 suicide of Abraham Maasdorp, commanding officer of the High Treason Investigation Unit of NamPol, is also suspected to delay the trial. 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". On 7 February 2012 the State concluded the case for the prosecution. The court record for this trial by then consisted of circa 35,000 pages.


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 (also referred to as Amnesty or AI) is an international non-governmental organization focused on human rights, with its headquarters in the United Kingdom. The organization says it has more than ten million members and sup ...
called on the Namibian Government to immediately resume the trial. , 112 of the accused are still in prison, awaiting Judge Hoff's decision whether or not the State's case is strong enough to keep the accused in jail. Only four of the arrested have ever obtained bail. 19 of the prisoners awaiting trial have died in custody, some of them under questionable circumstances. Frequent reports of maltreatment, torture,
medical neglect In the context of caregiving, neglect is a form of abuse where the perpetrator, who is responsible for caring for someone who is unable to care for themselves, fails to do so. It can be a result of carelessness, indifference, or unwillingness an ...
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, the commander of the
Caprivi Liberation Army Caprivi Liberation Army (CLA) 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 The Caprivi Str ...
, most of the alleged masterminds of the secession of the Caprivi are not among the group of people that have been arrested. A sizeable 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 organisations". Amnesty International assumes they are actually prisoners of conscience and in 2009 requested them to be tried or released immediately.


References

{{reflist, 30em 1992 in Namibia 1992 crimes in Namibia 1990s crimes in Namibia 2000s crimes in Namibia Political history of Namibia Law of Namibia Separatism in Namibia Trials in Namibia Treason in Namibia Treason trials Amnesty International prisoners of conscience held by Namibia