CASE NO.: SA 6/2004 IN THE SUPREME COURT OF NAMIBIA In the matter between THE STATE APPELLANT versus MOSES LIMBO MUSHWENA 1ST RESPONDENT (ACC 12) FRED MAEMELO ZIEZO 2ND RESPONDENT (ACC 25) ANDREAS MULUPA 3RD RESPONDENT (ACC 26) RICHARD LIBANO MISUHA 4TH RESPONDENT (ACC 48) OSCAR MUYUKA KUSHALUKA PUTEHO 5TH RESPONDENT (ACC 49) RICHARD JOHN SAMATI 6TH RESPONDENT (ACC 53) JOHN SIKUNDEKO SAMBOMA 7TH RESPONDENT (ACC 54) OSBERT MWENYI LIKANYI 8TH RESPONDENT (ACC 57) THADEUS SIYOKA NDALA 9TH RESPONDENT (ACC 70) MARTIN SIYANO TUBAUNDULE 10 TH RESPONDENT (ACC 71) OSCAR NYAMBE PUTEHO 11 TH RESPONDENT (ACC 72) CHARLES MAFENYAHO MUSHAKWA 12 TH RESPONDENT (ACC 73) CHARLES KALIPA SAMBOMA 13 TH RESPONDENT (ACC 119) CORAM: Strydom, ACJ, O'Linn, AJA, Mtambanengwe, AJA, Gibson, AJA et Chomba, AJA. HEARD ON: 10-12/05/2004 DELIVERED ON: ____________________________________________________________________________ APPEAL JUDGMENT ____________________________________________________________________________ 2 MTAMBANENGWE A.J.A.: The state appeals against Hoff J's judgment in favour of the thirteen respondents that the court did not have jurisdiction to try them. The application leading to the court a quo's ruling began as an application on notice of motion supported by various affidavits deposed by the respondents. The notice of motion sought an order declaring inter alia that the respondents apprehension and abduction from Zambia and Botswana respectively, and their subsequent transportation to Namibia and their arrest and detention pursuant thereto was in breach of international law, unlawful and that they had not been properly and lawfully arraigned before the court for trial on the charge preferred against them. The court a quo directed that the notice of motion and the supporting affidavits be regarded as respondents pleas in terms of section 106 (1) of the Criminal Procedure Act 57 of 1977, namely that the court a quo had not jurisdiction to try the 13 respondents. The respondents, and 117 other persons were facing 278 charges of which the most serious are high treason, murder, attempted murder seduction, robbery with aggravating circumstances, public violence unauthorized possession of firearms and ammunition, theft and malicious damage to property. All the charges arise from an incident at Katima Mulilo on 2 August 1999 when Government institutions, including the Mpacha military base, the Kautonyana Special Field Force base, the Wanela border post, the building housing the Namibian Broadcasting Corporation, the Katima Mulilo Police Station, the Central Business area of the town of Katima Mulilo and the house of a police officer were attacked by groups of armed men resulting in the death of several people and damage to properties. The respondents and their co-accused were part of an exodus of people from the Caprivi Region into neighbouring countries that took place as a result of and prior to the incident. The state of emergency at the time declared in the Caprivi Region was revoked on 26 August 1999 after order was restored by the Namibian Security Forces. Besides the respondents a number of other people were arrested in the country. 3 It is common cause that all the respondents left Namibia illegally and were all granted asylum in Botswana where they were accommodated at various refugee camps. It is also common cause that at various dates during 1999 all except Osbert Likanyi left the refugee camps illegally, and all had subsequently been apprehended at various locations and at different times by Zambian authorities. At different times subsequent to their apprehension and detention in Zambia, they were handed over to the Namibian authorities. Respondent Likanyi was handed to the Namibian authorities by the Botswana authorities as an illegal immigrant. All the respondent's claimed in their affidavits that they were abducted by the Namibian authorities and unlawfully surrendered to Namibia. In the proceedings before Hoff J to determine the jurisdictional issue, the State, conceding it had the onus to prove that the court had jurisdiction to try the respondents, led evidence from various witnesses who on various occasions dealt with the respondents. These included police and or Immigration officials from Zambia and Botswana. Only two of the respondents testified, namely Oscar Muyuka Kashaluka Puteho and Fred Maemelo Zieso. The evidence dealt with the respondent as belonging to in all 5 groups according to the way and dates they were apprehended and handed over to Namibia. The first group included Steven Mamili (since deceased) Moses Limbo Mushwena, Thaddeus Siyoka Ndala, Martin Siyano Tubaundule, Charles Mafenyaho Mushakwa and Oscar Nyambe Puteho. No one from this group was called to testify. At this stage it is worth noting that throughout the cross examination of state witnesses counsel for the respondents devoted all his effort at trying to show that all the respondent's were abducted from Zambia or Botswana and that the Namibian authorities connived in the abduction. This was of course in line with the allegations of respondent's as recorded in their affidavits. The most explicit of the affidavits on that score was that of Charles Mafenyaho Mushekwa and that of Charles Kalipa Samboma, each of which details how they say they were abducted. They read in part as follows: 1. "We were separated and placed in different camps in Botswana. Others and myself were taken to Dukwe Refugee Camp. Although we had been granted 4 political asylum we still reported to the Police Station three times a day, that is at 6 am, 2pm and 6pm. I was not happy with the treatment I received in the camp including the continuous routine of reporting to the Police Station. We were not given enough food so we were starving. Because of these difficulties I decided to leave the country to Zambia. I left with my friend Oscar Puteho for Zambia. We crossed the border into Zambia. When we were in Zambia we went to the Police Station and reported ourselves there. This was on the 18 of June 1999. We informed the police that we were claiming political asylum. We advised the police that we had previously been granted political asylum status in Botswana but had left because of hardship. We were later transferred to Mongu Prison. At Mongu prison we were interviewed by members of Zambian Intelligence Office. We told them the same story we had told the police the previous day. While we were being interviewed by the State Security Officers, the Namibian Police came and wanted to take us back to Namibia. The Commander of the Zambian Police refused. We had told him that United Nations Regulations do not allow the Namibian Police to take us to Namibia to leave the country. The Namibian High Commission requested to see us. Again the Zambian Police refused. We were taken to Lusaka Kamwala Remand Prison. Photographs were taken of us. On the 7 th of August we were called by the prison officers to the prison reception where we were handed to an officer from the Office of the President of Zambia. We were initially asked to collect all our belonging as we were made to believe we were being taken to Europe. We then proceeded to the Zambian Airport. We boarded the plane. But before we boarded the plane we enquired whether the plane was suitable to take us all the way to Europe. The plane was a military plane and we were sure that it could not manage to fly all the way to Europe. The pilot assured us that we were right in thinking that the plane would not reach Europe on a single flight, but told us that we would be making a stop over in a number of countries to refuel and that our first stop was Uganda. When we were airborne we saw that we were going in the wrong direction. We landed at Sesheke Air Strip. We found the Zambian Police had surrounded the Air Strip. A few minutes later Namibia Police also arrived. At that time we were six of us. After disembarking from the plane we were surrounded by both Zambian and Namibian Police. One of my 5 colleagues asked the Zambian Police why they had lied. The Zambian Police said that it was not their problem. The Namibian Police then forcibly took us into their custody. The Namibian Police then forcibly marched us to the Namibian side. During this period, I protested to both the Zambian and Namibian Police that their conduct was unlawful and contrary to the United Nation Charter on Status of Refugees. My protests fell on deaf ears. After crossing the border into Namibia we arrived at Katima Mulilo where our hands were tied by pieces of ropes. They started beating us using their hands and booted feet. I remember specifically being assaulted by Inspector Therone and Chief Inspector Erasmus Shishanda. They were shouting saying they were going to kill us because our people killed their officers. We told them that we had nothing to do with the killing of the officers. We were taken to Mpacha Military Base. At Mpacha Military Base we were handed to the army officers. We spent four days without food except water and we had our hands tied behind our backs. On the 10 th of August 1999 we were taken to Grootfontein Military Base and late to Grootfontein Prison. I have been in Prison since and appeared in other Magistrate Court and High Court more than 23 times. I had been granted Political Asylum Status, which I held at the time of abduction from Zambia territory. I pray the Honourable court to grant me an order in terms of the draft order. I submit that I was unlawfully brought from the Zambian territory to Namibia. ------------------------------------------------ CHARLES MAFENYAHO MUSHAKWA" and, 1.