Re: Request of NSHR for Chief Justice to order a separate trial to determine the admissibility of evidence allegedly obtained by coercive means from accused in the Caprivi high treason trial. During the recent administrative recess of the Supreme Court, the National Society for human Rights (NSHR) issued a press release on the “inadmissibility of Torture Evidence” which was widely published in the media. On the basis of an assertion that “virtually all the 132 Caprivi treason suspects have on several occasions demonstrated that they have been subjected to torture and other cruel treatment during interrogations and even thereafter”, the NSHR urged His Lordship, the Chief Justice to “promptly order a separate trial in order to ensure that no evidence before the High Court has been tainted through coercive means, including torture and other ill treatment”. However well-intended the press release might have been and however laudable the sentiments expressed therein may appear to be, they evidence a significant lack of understanding about the judicial role of His Lordship the Chief Justice, the independence of Judges presiding on matters in the High Court and on the law relating to procedures applicable in that Court. It is trite law that a confession or informal statement made by an accused is only admissible in evidence if and when the prosecution has proven beyond reasonable doubt that it has been freely and voluntarily made. Article 12(f) of the Namibian Constitution precludes any Court in peremptory terms from admitting in evidence against an accused testimony which has been obtained by subjecting him or her to cruel, inhuman or degrading treatment or punishment. This principle is also apparent from sections 217 and 219 of the Criminal Procedure Act, 1977 and has been consistently applied in a long line of cases by all the courts of the country. If any of the accused in the Caprivi high treason trial alleges that a confession or extra-curial statement made by him (which the Prosecution wishes to use in evidence during the trial) has been obtained in breach of that principle, the admissibility thereof falls to be determined in a trial within the main treason trial. During a trial-within-a-trial both the Prosecution and the accused will be at liberty to adduce any evidence bearing on the issue. The accused will be entitled to testify and to call witnesses to corroborate his allegations. For reasons of expediency and practicality, the Trial Court is best suited to conduct that hearing and, at the conclusion thereof, will disallow an accused’s confession or statement as evidence unless it is satisfied beyond reasonable doubt that it has been made voluntarily. No other court of equal or inferior jurisdiction has jurisdiction to decide on the admissibility thereof. Similarly, if it is alleged that a witness for the State has been unduly influenced or coerced to fabricated incriminating evidence against an accused, the Trial Court will allow the allegation to be canvassed under cross-examination and will in due course decide on the admissibility of and weight, if any, to be accorded to the evidence of such a witness. These are procedures often applied in the Courts of Namibia and in most other Commonwealth jurisdictions. If either the prosecution or a convicted accused is aggrieved by the Trial Court’s finding, it may be assailed in an appeal to the Supreme Court. Only when it is properly raised and argued in such an appeal, can His Lordship the Chief Justice – as part of the Bench constituting the Supreme Court in such an appeal – make findings, orders or recommendations in that regard. The “order” which the NSHR calls upon the Honourable Chief Justice to make at this stage of the caprivi trial is therefore not only legally impermissible, but it will also be premature and derogate from the independence and constitutional powers of the Trial Judge. Moreover, such an “order” – even if it could have been made and implemented – would result in a further substantial delay in the high treason trial (because some of the witnesses and all of the accused will be tried up in such a trial) and will serve no purpose (because the findings of another court of equal or inferior jurisdiction on the admissibility of such evidence has in law no binding effect on the Trial Judge in the treason trial). In addition, such an “order” would also be irregular in the absence of any evidence material in support of such an order having been properly placed before the Supreme Court and without having afforded a proper hearing to those who may be affected by the suggested “order”. The prosecutor General’s reported decision to delay prosecution of the law enforcement officials allegedly involved in “torture charges” until after the treason trial raises a different concern of the NSHR and, given the reported intention of the Legal Assistance Centre to launch an application in the High Court to challenge that decision, it is not appropriate at this stage to respond to that concern. Dated at Windhoek this 18th day of January 2006 Registrar of the Supreme Court.
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