By Catherine Sasman
National Society for Human Rights (NSHR) Executive Director, Phil ya Nangoloh, says the SWAPO Party imposed a “virtual death sentence” on him when it came out strongly against the International Criminal Court (ICC) submission made by the human rights organisation.
“SWAPO is urging people to come and kill me on sight,” said ya Nangoloh of a SWAPO Party statement that said, “It is time someone called him [ya Nangoloh] to order.”
He said the NSHR staff would make an urgent appeal to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions for international protection.
“I will approach the police for protection; this is very serious,” said ya Nangoloh, adding: “I will never be intimidated. The ICC challenge was made in accordance with the law.”
SWAPO Party last Thursday said that the ICC submission was a serious threat to security in Namibia and that ya Nangoloh should be held responsible for the submission and the possible consequences.
The NSHR has since come out with a statement in which it appeals to the Inspector General of the Namibian Police to provide physical protection to ya Nangoloh.
“The remark, ‘It is time somebody called [ya Nangoloh] to order’ is understood by both reasonable citizens of this country who called us since last night [last Thursday] and by ya Nangoloh himself to be a very clear euphemistic instigation and/or call by Tjiriange upon anyone to physically eliminate ya Nangoloh upon sight,” said the NSHR statement.
Tjiriange responded that ya Nangoloh’s reaction is “far-fetched”.
“It is exactly just the contrary. It is a collective statement by the party against the onslaught on its president, Sam Nujoma,” said Tjiriange. “We are restraining the masses who think that he [ya Nangoloh] has gone too far. This was a spontaneous reaction from the party meant to calm down the masses who called for action against ya Nangoloh.
“Silence on the part of the party would result in people taking the law into their own hands. The party wants to rescue the country from disaster because it seems that some people are tired of peace.”
He said the statement was an appeal to the “common patriotic sense” that people should treat the country carefully and not “drag it into a mess”.
“If people get reckless they may draw the country into war, disarray and internal conflict. If we get there, we will all be victims and no-one can escape such destruction. We cannot create a man-made disaster.”
Director of the Unam Human Rights and Documentation Centre (HRDC), Professor Nico Horn, said he doubts if the ICC challenge has much merit.
“First of all, the [ICC] statute says that there must be an attempt to settle a dispute in a local court before it is taken to the ICC. Ya Nangoloh has not done that,” said Horn.
Moreover, said Horn, a retrospective application – such as the ICC application made by the NSHR – is “extremely problematic”.
“It will not be an easy ride even if investigators find merit in the case,” said Horn. “We should not go there for political and legal reasons.”
Another reason, said Horn, is that SWAPO was not a government when the alleged atrocities took place.
He said at independence there was open amnesty to all warring parties, and that that should be respected.
“The amnesty process, admittedly vaguely legislated for, must also be taken into account before the prosecutors in The Hague can issue warrants. The Supreme Court of Transvaal in South Africa has recently decided that Wouter Basson was not extraditable to Namibia for crimes committed during the war of independence.”
Horn further said the investigation of the ICC challenge would take several years, judging by similar cases in the tribunals and the Inter-American system.
“And as Dr Tjiriange has already hinted, the government will see the action as one-sided. This may lead to a new request to the courts to evaluate the AG resolutions dealing with amnesty by the courts. And its decision is fairly unpredictable.
“What if the courts find that perpetrators on both sides must stand trial for actions during the war of liberation? It will open the proverbial Pandora’s Box and will undoubtedly lead to new racial tension and the redrawing of long-forgotten battle lines, as is already evidence in South Africa where the prosecutorial authority is only now starting prosecutions against a minister and a general for actions of their subordinates for which amnesty was not granted.
“Does the acceptance of amnesty mean condoning atrocities of the past? Surely not. Amnesty is an acknowledgement of the extent of the atrocities of the past … We need to live with the knowledge that some victims did not get justice in the legal sense of the word.
“But as with Judge Albie Sachs, now Constitutional Court judge – who lost his arm in a car bomb while teaching law in Maputo – in the Soft Vengeance of knowing you were fighting for a just cause, it is sometimes the best way to deal with former enemies. Does Namibia need closure on the detainee issue?
Absolutely. Is prosecutions the way? I do not think so,” stressed Horn.