1 PRELIMINARY NOTES ON THE SWAKOPMUND TRIAL : THE STATE YS. AARON MUSHIMBA AND FIYE OTHERS by Ralston Deffenbaugh~ Jr. INTRODUCTION I have entitled this "Preliminary Notes" for two main reasons, both of which have a great bearing on the accuracy and reliability of what is written be­ low. The first reason is that this material is taken from my notes and mem­ ory of the court proceedings; I have not yet had the opportunity to consult the offical record. The second reason is that I missed several court days in March; and thus have only a second-hand knowledge of what transpired those days. CHRONOLOGY August 16, 1975 Chief Minister Philemon Elifas of Owambo lS murdered. August-October 1975 Wave of arrests In Namibia, in which some 30-odd persons are detained, allegedly in connection with the murder. Many are released after several weeks. November 20, 1975 Erwin N. Griswold of the USA is allowed to see 7 of the detainees and is told that these people will be charged. He is told the other detainees will be witnesses. November 27, 1975 six persons are charged in Windhoek with violation of the Terrorism Act, all but one of those visited by Griswold. December 1-2, 1975 The six persons appear in the Windhoek Su­ preme Court before Judge President Baden­ horst and two assessors. Trial date is set for February 16, 1976, and case transferred to Swakopmund. February 16, 1976 Trial opens in Swakopmund before Justice Strydom, without assessors. Each of the six accused pleads not guilty. The State advocate, Chris Jansen of Grahamstown, opens the State case. The defendants are repre­ sented by Dr. Wilfred Cooper of Cape Town and Hans Berker of Windhoek, instructed by Lorentz & Bone of Windhoek, Colin du Preez, Attorney. 2 March 4, 1976 Court is adjourned until March 15 so that defense m~ consult witnesses in Ovamboland. March 15, 1976 Adjournment extended until March 17. March 17-18, 1976 State case proceeds, adjourned until March 22, 1976. March 22, 1976 Adjournment extended until April 5, so that defense can consult people on Robben Island and in the Republic. April 5, 1976 Court reconvenes; State closes its case. April 6, 1976 Defense opens its case. April 20, 1976 Defense closes its case, with provlslon that it may call one more witness if nec­ essary. Adjournment until April 26 to enable lawyers to work on final argument. April 26, 1976, 1976 Defense calls no more witnesses. state opens its final argument. April 27, 1976 State finishes its final argument, acknowl­ eding that it had proved no case against Nangolo. Nangolo is found innocent by the judge. State replies to the written "heads of argument" prepared by the defense re Mushimba, before the defense has made its argument orally. April 28-30, 1976 Defense gives its final argument. April 30, 1976 Court adjourned until May 11 so that judge may consider his decision. May 11, 1976 Judge Strydom gives his verdict: Mushimba, Shikongo, Nambinga, and Nghihondjwa are guilty; Nombowa is not guilty. State leads two witnesses in aggravation of sentence. May 12, 1976 Defense and State give sentencing arguments; State asks for death. Judge Strydom gives his sentence: Nambinga - 7 years; Nghihondjwa - 5 years; Mushimba and Shikongo - death. Leave to appeal is denied. Court is adjourned for the last time. 3 THE CHARGES Aaron Mushimba, 29, Lutheran, travelling salesman living in Windhoek, was charged with having purchased a Land Rover which he handed over to a person for delivery to persons whose purpose it was to overthrow the SWA Administra­ tion with force. He is also charged with handing over R380, a radio, and blankets to the same person for the same purpose. Andreas Nangolo, 53, Lutheran, shopkeeper in Windhoek, is charged with having purchased a Land Rover which he handed over to a person for delivery to persons whose purpose it was to overthrow the SWA Administration by force. Hendrik Shikongo, 28, Catholic, clerk in an Ovamboland shop, is charged with having given transport to three men to the scene of the murder of Elifas, knowing that the men's purpose was to kidnap or cause bodily harm to Elifas. Rauna Nambinga, 24, Lutheran, nurse at Engela Hospital, is charged with having given R10 herself, and with having collected RlO each from two others, for delivery to persons whose purpose it was to overthrow the SWA Adminis­ tration by force. In addition, she is charged with having visited a group of such persons in Angola and given a dress, soap, and sanitary napkins to one of them. Naimi Nombowa, 28, Lutheran, nurse at Engela Hospital, is charged with having given R10 to a person for delivery to persons whose purpose it was to over­ throw the SWA Administration by force. Anna Nghihondjwa, 23, Lutheran, nurse at Engela Hospital, is charged with having given R10 to a person for delivery to persons whose purpose it was to overthrow the SWA Administration by force. Each of the accused is charged with having violated Article 2(1) (a) of the Terrorism Act (Act No. 83 of 1967) or, in the alternative, Article 3 of the same Act. Each of the defendants lS a member of SWAPO. DAY-BY-DAY SUMMARY OF THE TRIAL Day 1 February 16, 1976 Trial begins. Defendants plead not guilty. Prosecutor's opening statement says that the blue Land Rover purchased by Mushimba was used in the murder of Elifas and was later captured by SA troops. Several witnesses are called: the auto dealers who sold the Land Rovers, the Army major who captured the one, policemen who delivered evidence to Pretoria, the ballistics expert who examined the Elifas bullets (and who could no longer produce his test reports). Day 2 February 17, 1976 An Ovamboland shopkeeper testifies that he saw both Mushimba and Shikongo 4 in Ovamboland. The dealer who sold the blue Land Rover returns with his cal­ endar (on which he had noted the sale), which had been altered between then and now. Emmanuel Elifas, brother of deceased, recounts the events of the 16th of August, saying Shikongo was in the store shortly before the shooting. Day 3 February 18, 1976 Thomas Fillipus, the owner of the store where Elifas was shot, and Paulus Nampala, nephew of Elifas, recount the events of August 16. They say they could clearly see Shikongo's car arrive and where it was parked and what colors it was (dark blue with a white stripe) even though they were in a lighted room looking out a window into the darkness. Day 4 February 19, 1976 Prosecutor refuses to tell defense which witnesses will or will not be called. A policeman who investigated the scene just after the murder testifies, but his original sketches have been destroyed and the copies are inaccurate. The autopsy doctor reports on the deceased (two bullets, one through abdomen, one through shoulder), but he didn't do a blood test. Festus Shaanika testifies that he brought Nicodemus Mauhi and 2 strangers to Shikongo on the 16th, that Shikongo greeted the strangers in a familiar manner, and that he had had no contact with Elizabeth Namunjebo (the Queen) that day. Day 5 February 20, 1976 Entire day spent in cross-examination of Shaanika, casting great doubt on the account of his movements on the 16th. Much time is unaccounted for, and at one point he said he stopped at a 15 km signpost, which do not exist in SWA. He had been in detention from September until the time of his testimony. Day 6 February 23, 1976 Sam Shivute, prominent Swapo member, testifies that on the evening of the 16th he was with Ruben Hauwanga at a house when Shikongo arrived. He over­ heard the conversation between the two, although he did not take part. He said that Shikongo said that he had taken two Swapomembers and Mauhi to the store, gone in, came out and drove away, bu.t returned when he heard shots. His passengers were gone already, however, so he left also. Shivute had been in detention from August 17 until his testimony. Then Josef Sagarias (Ice Cream) testified that he and Nangolo had purchased a Land Rover together. Day 7 February 24, 1976 Sagarias says the Land Rover was to be used inside Namibia in the transport of children on their way to Zambia. (This witness was not released after testifying). Titus Shiluua, a teacher, then testified that he saw Mushimba in Ovamboland in May, 1975. Saimi Kamati and Anna Hasheela, who were nurses at Engela, say that there were Swapo meetings at Engela in the first half of 1975, that collections were taken to help people who had fled over the border, that defendants Nambinga, Nombowa, and Nghihondjwa visited over the border. Hasheela says she was asked by Rauna Nambinga to give for Swapo soldiers in the field and she gave R10. 5 Day 8 February 25, 1976 olivia Mbangula and Eva Mwandingi, nurses at Engela, testify. Mbangula ss\ys that Rauna came to her and solicited RlO for the soldiers in the field, and told of her (Rauna's) trip to Angola. Under cross-examination she said the money was for "brothers and sisters", not soldiers. Mwandingi said that she went to Swapo meetings, visited Angola, and gave RlO. There was a soldier by the refugees she saw in Angola.. There were Unita soldiers by the border gate. Under cross-exam she said the last time she was interrogated by the police was just before testifying, by Lt. Dippenaar, the investigating of­ ficer in this case. Day 9 - February 26, 1976 Kaino Malua, nurse at Engela, testifies that she visited Angola and saw soldiers, and that it was she who gave the soap and sanitary napkins.