A massive claim in which one of the discharged Caprivi high treason trial accused is suing government for more than N$36 million started in the High Court yesterday.
Rodwell Kasika Mukendwa, 73, was acquitted on charges of high treason 13 years after he was first arrested on August 26, 1999.
He was arrested about three weeks after an unsuccessful attempt to secede the then Caprivi Region (now renamed Zambezi) from Namibia. The insurgency was masterminded by exiled politician Mishake Muyongo who is now believed to be in Denmark.
Mukendwa wants the respondents – the Minister of Safety and Security, the Prosecutor General and Government – to compensate him for “wrongful and unlawful and negligent violation or infringement of the constitutional rights of the plaintiff, which were perpetrated by the defendants or their employees.”
According to the particulars of claim submitted by his lawyer Profysen Muluti, his client’s fundamental constitutional rights guaranteed under Articles 7, 8, 11, 12, 13, 16, 19, 21 were infringed upon and his trial was unduly delayed contrary to Article 12 of the Namibian Constitution, which guarantees a trial within a reasonable period.
According to the court documents Mukendwa was the sole breadwinner for his family as he was employed as a foreman at Namib Mills in Katima Mulilo with a monthly salary of N$2 160, with an annual 10 percent increment.
He was also involved in farming which earned him about N$571 000 and it is further claimed he suffered damages in the amount of N$23.6 million due to humiliation and degradation, injury to his self-esteem and his reputation, contumelia, deprivation of his freedom (including freedom of movement), discomfort and inconvenience.
Mukendwa claimed N$700 000 for loss of his pension fund plus a further N$340 000 for loss of income because of his continued incarceration, and loss of income from his farming activities with a combined value of N$11.9 million.
All in all, Mukendwa claims he suffered losses of N$36.6 million as a result of his “unlawful arrest and malicious prosecution”.
Advocate Rafiq Bhana, who heads Mukendwa’s legal team assisted by Advocate Ivan Phatella, argued yesterday the police had no evidence linking his client to the events of August 2, 1999 when some elements believed to be Caprivi Liberation Army (CLA) separatists launched an attack targeting strategic places in Katima Mulilo.
He said that with the skimpiest of evidence, they proceeded to arrest and prosecute Mukendwa, which financially ruined him and left him highly traumatised.
“My client was financially independent with a good job and agricultural interests,” he said, adding that even after the prosecutor general realised they had no case against Mukendwa they continued with the case until they had no other choice than to release him.
“The PG had various opportunities to cease the prosecution against my client, but they decided against this and the police artificially bolstered the evidence against him,” Bhana said.
The respondents, represented by Advocate Nassier Cassim, assisted by Sisa Namandje, instructed by the Government Attorney, oppose the lawsuit.
They claim Mukendwa was arrested at Katima Mulilo by a member of the Namibian Police in terms of Section 40(1) of the Criminal Procedure Act, Act 51 of 1977 on the basis of reasonable suspicion that he committed serious criminal offences associated with the unlawful attacks at Katima Mulilo.
The respondents claim the arrest was lawful, as well the seizure of his motor vehicle, as it was suspected the vehicle was used in transporting the persons suspected to have carried out the deadly attacks.
They further claim that after the arrest of the plaintiff, the police furnished the office of the PG with a docket which constituted prima facie evidence that the plaintiff was involved in the attack of August 2, 1999 which claimed nine lives.
The defendants claim they had reasonable basis for instituting criminal charges against Mukendwa and are as such not liable for any damages.
On the claim of an undue delay in commencing with the trial, the defendants claim that the trial commenced within reasonable time and the delays were caused by unforeseen circumstances such as the death of one of the prosecuting team and critical injuries to another two prosecutors due to a motor vehicle accident ten years ago, as well as accidents in which witnesses and police officers involved in the investigation of the case were killed or injured, and numerous applications from both the defence and the prosecution, which required a considerable amount of time to be dealt with during the trial.
In the circumstances, the trial was conducted within a reasonable period of time, the defendants are claiming.
Judge Shafimana Uitele indicated he would make a ruling today on an application from the defence that the PG, Martha Imalwa, and her predecessor Advocate John Walters, not testify.