17 August 2015 – In August 1999, sixteen years ago this month, members of the secessionist Caprivi Liberation Army attacked a number of Namibian government buildings in Katima Mulilo, the capital of Namibia’s Caprivi Strip. Eleven people were killed and some 300 suspected rebel fighters and civilian sympathisers were arrested as government forces quashed the attack. 132 of those detained were later indicted on 278 charges, including high treason, sedition, murder, and unlawful possession of firearms and ammunition. What followed has been the longest and largest trial in Namibia’s history, and it continues today. The remaining pending verdicts are expected to be handed down later this month, which would bring the marathon trial to a close.
The Caprivi Strip is a narrow passage of land extending from Namibia’s Okavango region eastwards to the Zambezi River. It became part of German South-West Africa (modern day Namibia) in 1890 under the Heligoland-Zanzibar Treaty, in which Germany gave Britain its interest in Zanzibar in exchange for the Caprivi Strip and the island of Heligoland in the North Sea. Today, the Caprivi Strip remains part of Namibia, notwithstanding its geographic isolation, with the nearest Namibian town being some 500 kilometres away from Katima Mulilo.
Caprivians have long pursued secession from Namibia. The United Democratic Party (“UDP”), Caprivi’s secessionist party, was formed in 1985 during Namibia’s independence war. In 1998, several thousand Caprivians fled to Botswana and were granted political asylum on the basis of having suffered persecution and harassment at the hands of the Namibian government for their support, or perceived support, of the secessionist movement. After the Katima Mulilo attack, a number of the Namibian refugees were either extradited or unlawfully abducted from Zambia and Botswana and returned to Namibia to face charges. Although the Namibian government banned the UDP in 2006, secessionist supporters continue to appeal for political dialogue on the issue of self-determination.
The Caprivi treason trial, as it has become known, has raised a number of compelling logistical and legal challenges. By 2007, there had been some 230 full days spent in court, with court transcripts running to over 18,000 typed pages. The trial has eaten up a notable portion of all legal assistance funds allocated to the Namibian Ministry of Justice. Eight years later, the sheer bulk of court papers and time spent on the case has undoubtedly increased considerably.
Detainees have filed a multitude of counterclaims against the Namibian government for unlawful arrest, torture, and manhandling while in custody. In 2004, the court ruled that at least 13 detainees were “irregularly before the court” after having been returned to Namibia without a formal extradition process having been followed. This decision was reversed on appeal, however, and these individuals were re-arrested shortly afterwards. In 2007, ten detainees were convicted and sentenced to a combined 314 years in prison, although these convictions were later set aside, with the matter being referred back to court for retrial.
Nevertheless, most of the main protagonists of the Caprivi secession movement were not among those arrested and charged. For example, the UDP president and the traditional chief of the Mafwe people, two key leaders in the secession movement, were granted political asylum in Denmark. Rather, as Amnesty International has found, a large number of the detainees appear to have been arrested “solely on the basis of their actual or perceived views, ethnicity or membership in certain organisations,” making them prisoners of conscience.
And, alarmingly, many of those arrested may not have even played an active role in the Katima Mulilo attack, but have instead been charged under the legal doctrine of common purpose. This doctrine imputes to all participants in a criminal enterprise liability for any and all consequences that result from the conduct of any participant. The common purpose doctrine was infamously used in a similar way in apartheid South Africa to convict anti-apartheid protestors of offences committed by others, notably in a mob or riot context. Members of a crowd could be convicted for the crimes committed by another merely as a result of being present when such crimes were committed. Although the doctrine has been criticised for compromising detainees’ presumption of innocence, it has passed constitutional muster in the Thebus case. Even so, overreaching the doctrine’s intended application by using it to charge people who did not in fact share a common purpose should constitute an erroneous application, if not an outright abuse, of the doctrine.
Since being arrested 16 years ago, only four of the 132 detainees have ever been granted bail. In 2005, the detainees were transferred to Windhoek Central Prison, moving them some 1,200 kilometres from their families in Caprivi. Approximately 65 detainees are thought to remain on trial today, with 43 having been acquitted in 2013. The other 26 detainees are thought to have died in prison amid frequent claims of maltreatment, medical neglect, torture, and unsanitary conditions in their holding cells.
To detain suspects for 16 years while they either await trial or are on trial undoubtedly violates both international standards and Article 12(1)(b) of Namibia’s constitution, which states that all criminal trials in Namibia “shall take place within a reasonable time, failing which the accused shall be released.” Although there may be differing views on what constitutes a reasonable time, no interpretation could possibly justify such a delay.
Nothing can compensate the Caprivi detainees for so many years spent in custody, at risk of torture and under horrendous conditions, on charges that may, in fact, be supported by little or no evidence. It can only be hoped that the trial is finally completed this month, and that future use of the common purpose doctrine is more circumspect and defensible than its use in the Caprivi treason trial.