The prosecutor general’s (PG) office has lodged an application in the Windhoek High Court for leave to appeal the acquittal of 41 of the Caprivi treason trial former accused.
Deputy Judge President Hosea Angula yesterday remanded the matter to March 8 next year for a status hearing to determine the date of the hearing before a new judge.
The judge who last year discharged 42 men charged in the treason trial, Justice Elton Hoff, is now a sitting judge of appeal in the Supreme Court.
Deputy Prosecutor General Lourens Campher, who brought the application on behalf of the PG, said they want to appeal the discharge of 25 of the accused in terms of Section 174 of the Criminal Procedure Act, following the state’s case closing against them on February 11, 2013. He further stated the PG also wants to appeal the acquittal of 17 of the accused, who were exculpated at the end of the trial.
According to Campher, against six of the 25 persons in relation to the Section 174 discharge, Judge Hoff already granted the PG leave to appeal against ruling their confessions inadmissible exclusively on constitutional issues.
In relation to the 17 acquitted persons, he said, Judge Hoff granted the PG leave to appeal against the non-admission of four of their confessions.
He further said that in respect of three of the accused, leave for appeal is applied for on other than constitutional issues, namely that the judge misdirected himself, alternatively erred in fact or law by not accepting eyewitness evidence, as well as documentary evidence and circumstantial and other evidence that, it is argued, made out a case against them.
According to Campher, the fact that leave was already granted by Judge Hoff in respect of the non-admission of 12 confessions, shows that there are prospects of success on appeal. Previous attempts to appeal to the Supreme Court were “immature” as the main trial was ongoing, he said.
The PG wants to ask the Supreme Court to set aside the discharges and acquittals of Calvin Malumo, Joseph Kamwi Kamwi, Herbert Mboozi Mutahane, John Tebiso Masake, Chist Sitale Mushe, Kisko Twazmango Sakusheka, Tobias Muswabe Kanganga, Frederik Kabatonwa Lutuhezi, Fred Maemelo Ziezo, O’Brien Sinkolea Mwananyambe, Joseph Omo Mufuhi, Ernest Lolisa Lifasi, Joseph Kabuyana Kabuyana, Richard Masupa Mungulike, Genes John Kabotana, Stephen Kadela Mashando, Vasco Inambao Lyongo, Phelem Mboozi Mutuwangele, Boswell Adams Muyumbano, Ernest Salufu Samunzala, and Wilson Mutumuswana.
Also included are Linus Kashala Luseso, Thaddeus Sibonwa Mundube, Gilbert Kaziyana Poshowe, Victor Tumonz Lunyandile, Simon Max Mubita, Charles Kalipa Samboma, Ignatius Nawa Tuwabushalila (deceased), Tiiso Ernst Manyando, John Samati Yalubbi, Francis Buitiko Pangala, Sylvester Lusiko Ngalaule, Austen Lemuha Ziezo, Andreas Puo Mulupa, Roster Mushe Lukato, Davis Chioma Mazyu, Britan Simisho Lielezo, Brendan Luyanda Luyanda, Frans Muhupolo, Mwilima Gabriel Mwilima, Oscar Muyuka Puteho and Richwell Mbala Manyemo.
The respondents will be represented by the same lawyers that represented them in the main trial, instructed by the Department of Legal Aid.
Yesterday it was ordered that the state must file its heads of argument by January 31 next year and the respondents by March 3.
Deputy Judge President Angula told the former treason accused they do not need to attend the hearings, since they will mainly be based on the record of proceedings in the main trial.
The main trial started in August 2004 in a specially constituted court at the Grootfontein Prison, with 122 accused.
During the course of the trial 22 accused died, while 43 were discharged during a Rule 174 ruling in February 2013 and one on August 2012.
The treason case has its roots in a botched secessionist attempt that was made on August 2 to violently secede the then Caprivi Region, now renamed the Zambezi Region, from Namibia.