Judge Elton Hoff on Friday found that the State had failed to prove any of the 278 charges against another eight of the accused alleged to have partaken in the botched attempt to secede the former Caprivi Region – renamed the Zambezi – by using subversive and violent means on August 02, 1999.
However, of the 14 preliminary findings he made on Friday he found six of the men charged with the offences, including high treason, nine counts of murder and 240 counts of attempted murder, played an active role in the incident.
Judge Hoff indicated during last week that he would specify the charges on which the accused would be acquitted and on which they would be convicted at the end of his voluminous judgment.
So far he has delivered his preliminary findings on 48 of the 65 accused that still remained of the original 122 charged.
Twenty-two have died during the long-running trial, which started in a specially constituted court at the Grootfontein Prison in August 2004.
Of those found to have been an active participant in the treasonous conspiracy to “cut” Caprivi from Namibia was former DTA parliamentarian Geoffrey Mwilima.
Eight people died in an attack by the rebel Caprivi Liberation Army (CLA) on government installations, including the local police station, military base, field force base, border posts and the NBC offices.
All of the accused denied guilt at the start of their trial.
Of the 65 accused that were found to be liable to answer to the charges against them in the Rule 174 ruling, 31 of the accused testified in their own defence, while 34 opted to remain silent.
Those that were found to have played an active role in the attacks, in terms of Judge Hoff’s ruling on Fiday, were Osbert Mwenyi Likanyi, a former policeman whom the judge found to have been a member of the original 92 rebels that fled to Botswana, together with former DTA president Mishake Muyongo, and his cousin and close confidant – former chief Bebi Mamili.
Muyongo and Mamili are currently in exile in Denmark.
One of those that did not testify in his own defence was Richard Libano Misuha. The judge found there was direct evidence that implicated him of the offence of high treason, which called for an answer that was not forthcoming. According to the judge the State proved beyond a reasonable doubt that Misuha committed the offences preferred against him.
Moses Chico Kayoka was also found to have participated actively in the events prior, during and after the attacks on Katima Mulilo.
According to the judge the State proved beyond a reasonable doubt that Kayoka had committed an overt act, with the required hostile intent.
Bennet Kacenze Mutusu, who called himself ‘Spiderman’ in various documents found in a military bag with his name on it, was also one of those that did not testify in their own defence. Judge Hoff found the evidence produced by the State against him begged an explanation.
In the absence of such explanation by the accused he had no other choice than to accept the evidence of the State that ‘Spiderman’ committed the offences preferred against him and that he committed an overt act with hostile intent.
Charles Mafenyeho Mushakwa was positively identified in court as a recruiter and mobiliser for the CLA, the armed wing of the United Democratic Party (UDP), according to the judge.
He said the evidence produced by the State clearly asked for an answer and in the absence of such answer, the evidence ascertined that Mushakwa committed an overt act and had the required hostile intent as charged.
One of the rebels captured at the Mpacha base after the attacks was Raphael Lyazwila Lifumba, who absented himself from the proceedings during the early stages of the trial. According to the judge, the accused only caused himself injustice by his absenteeism and not testifying in his own defence.
Judge Hoff found the evidence of the State that Lifumba was captured by the army at Mpacha base was uncontroverted and established beyond a reasonable doubt that the accused committed the offences preferred against him.
Even though he found at the end of the State’s case and in the Rule 174 ruling that prima facie evidence existed against Gabriel Nyambe Ntelamo, Martin Sabo Chainda, Ignatious Nauha Twabushalila (Twafchalila) and Patrick Itwa Likando, the fact that none of the state witnesses could identify them in court proved to be the State’s downfall, Judge Hoff said, adding that it failed to prove the allegations against them.
In the case of Bernard Mucheka, who was an executive producer at NBC Radio and was allegedly supposed to announce on the radio the ‘liberation of Caprivi’ after the attacks, Judge Hoff found that although witnesses named him, their failure to identify him in court resulted in the failure of the State to prove the allegations against him.
In the case of Tiiso Ernest Manyando, he ruled no evidence was produced to prove any of the charges against him.
According to Hoff, a statement relied upon by the State implicating the accused was the result of severe torture by the police of the witness to produce a “satisfactory statement”.
It was also found the witnesses’ testimonies about the alleged involvement of John Samati Yalubbi and Oscar Nyambe Puteho were unreliable and were not enough to satisfy the threshold of reasonable doubt.
However the judge indicated he was satisfied the State did prove the offences under the Immigration Act.
The protracted and preliminary judgment continues today.