A case of two countries

The treason trial of a dozen members of a Caprivi secessionist group facing the death penalty is likely to result in a miscarriage of justice, a human rights organisation says. The National Society for Human Rights (NSHR) in Namibia said the treason trial of the Caprivi secessionists, taking place in Windhoek, the capital, had proceeded in the absence of the accused and their lawyers, in direct contravention of the country's constitution. Acting judge Manyarara ordered the accused from the court two weeks ago after they refused to stop singing Caprivi nationalist songs. Lawyers for the accused have also withdrawn their services, citing a breakdown in client relations. The 12 men were arrested on 4 November 2004 after clashes with Namibian security forces near the town of Katima Mulilo in Caprivi Province, a sliver of land about 400km long in the country's northeast, bordered by Angola, Botswana, Zambia and Zimbabwe. The government said the men were linked to Caprivi politician Mishake Muyongo, who is in exile in the Netherlands. In a statement the human rights society said a miscarriage of justice was most likely to occur since seven prosecution witnesses were allowed to testify in the absence of the accused and their lawyers. "The NSHR is concerned about the prospects of unfairness in very serious criminal proceedings, in which an accused is denied, by omission or commission, the fundamental right to defend himself or herself." Namibia's constitution compels the State to provide all accused with legal representation. "While Namibia's constitution guarantees the right to a fair trial in an independent, impartial, competent and lawful court, the right to have legal representation is also guaranteed by the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms," the NSHR said. In the absence of both the accused and legal representation, new exhibits were introduced unchallenged, including four AK-47 assault rifles allegedly recovered at the rebel base on Situnga Island, near the Botswana border, after the clashes. NSHR executive director Phil ya Nangoloh said the trial, which has been adjourned until October 16, should not be allowed to proceed until the State had provided legal representation for the accused. The State said legal assistance had been refused because the accused insisted they were Caprivians and not Namibians, but ya Nangoloh maintained that the government was obliged to provide legal aid regardless of nationality arguments. "Every person charged with a criminal offence must be accorded the right to enlist the assistance of legal counsel. Accordingly, the right to legal counsel, paid for by the Namibian state, cannot and should not be denied, even if the 12 accused persons were to argue that Caprivi is not part of Namibia. A trial must not only be fair, it should be seen to be fair." He said any testimony given in the absence of the accused should not be admissible, unless it had been challenged in terms of court procedure, and that the accused had the right to be present at their trial. The Directorate of Legal Aid, which previously provided lawyers for the 12 accused, refused to provide new legal counsel because the men intended to question the historical and legal ties between Caprivi and Namibia. The accused have repeatedly told the court that they cannot be tried in terms of Namibian law because they consider Caprivi to be another country.