Ditshwanelo

DITSHWANELO - The Botswana Centre for Human Rights applauds the December 3, 2002 decision of Judge Horn at the High Court in the appeal of the extradition case of the thirteen Nambians. The High Court's ruling overturns Magistrate Mathiba's September 2001 judgement in which she ruled that "The respondents will not be prejudiced at their trial or punished, detained or restricted in their personal liberty by reason of their political opinion". She further stated that the respondents would receive a fair trial due to Namibia's' constitutional guarantees. Her ruling dismissed the two grounds which had been raised by the thirteen appellants and which were the basis of the decision of the High Court.

In late 1998 and 1999, several people fled to Botswana from the Caprivi region in Namibia. Proceedings in the extradition case began in September 2000 after the Government of Namibia sought the return of thirteen Namibians, to face charges of treason, murder, attempted murder, robbery, unlawful possession of firearms, ammunition, explosives and bombs. All of these thirteen respondents admitted to being members of the United Democratic Party (UDP) of Namibia. DITSHWANELO assisted the thirteen to obtain legal representation for the extradition hearing. Our involvement arose out of concern for whether the right to a fair trial could be guaranteed in the light of the reported violations in Namibia against those suspected to be supporters of UDP.

DITSHWANELO is concerned about the continuing violations of the human rights of Namibians from the Caprivi Region. Reports on Namibia, made by Amnesty International and the US Department of State made reference to reports of extra-judicial killings and rape by security forces. There have also been reports of widespread abuse and torture of civilians and detainees and unexplained disappearances. A Namibian NGO, National Society for Human Rights reported in 2000, that in a trial involving accused persons from the Caprivi, the accused persons who gave testimony, told of torture, beatings and intimidation after arrest.

More specific reports reaching DITSHWANELO from 1999 to date, point to the following violations:

Torture: Hundreds of Caprivians are reported to have been tortured to an extent that some of them have sustained permanent disabilities. Cases documented include those of Geoffrey Mwilima (former MP), Martin Chainda (teacher), Oscar Lupalezwi (Police Officer) and Dino Diaz (driver). This is in contravention of Prohibition of Torture Provisions under Article 8 (2) (b) of the Namibian Constitution, Article 6 of the African Charter and Articles 5, 9 and 11 of the Universal Declaration of Human Rights.
Unlawful detention: Many Caprivians are reported as having been and as currently being detained unlawfully, without trial for periods extending to three and a half years. Article 11 of the Namibian Constitution has been violated with regard to those detained in Grootfontein prison. They are reported to have been arbitrarily arrested and unlawfully detained contrary to the Constitution. It is also reported that because of a lack of evidence to incriminate them, their cases have never been heard in court. Article 12 of the Namibian Constitution requires that detained persons must be brought before a competent court of law within a reasonable period thereby facilitating a fair trial.
The right to life: There are reports of a number of extra-judicial killings of Caprivians, carried out by the Namibian Security Force. Cases include those of James Chebasi Chilunda, Noreen Kwala, Dikuwa and very recent report of Cacious Pelekelo, Raymond Mabuku and five Caprivians who were killed at Situnga Island. This is contrary to Article 6 of the Namibian Constitution which provides for the respect and protection of life.
Fair Trial: An integral part of the right to a fair trial is that a court should not be unduly influenced by external factors in making just decisions. Of concern was the report that demonstrations held by members of the ruling party negatively influenced a courts' decision relating to the granting of bail to 128 Caprivians imprisoned at Grootfontein. Another integral aspect of the right to a fair trial is the right and access to adequate and proper legal representation. In the case involving the 128 Caprivians, they were initially denied legal counsel but were, with the intervention of local organisations, provided with representation. However, the Government has imposed lawyers of its choice on them. Article 12 of the Namibian Constitution guarantees the right to a fair trial.
Freedom of expression: It has been reported that Caprivians have been denied the opportunity to exercise this right guaranteed under Article 21 of the Namibian Constitution. They are unable to express their opinions without harassment and/or intimidation by Namibian Security Forces. Persons who have voiced opinions inconsistent with the Government have been arrested, tortured and/or have disappeared.

DITSHWANELO remains committed to the protection of all people from torture. Freedom from torture is an essential ingredient for the exercise of the right to a fair trial. Namibia is a signatory to the Convention Against Torture.

DITSHWANELO believes that the right to a fair trial begins from the moment of investigation. Arbitrary arrest, rape, torture, the obtaining of forced confessions, harassment, disappearances and extra-judicial killings are violations of human rights and militate against an accused exercising his or her right to a fair trial. DITSHWANELO remains committed to the protection of all people from such violations.