SENTENCE



4552950-57150REPORTABLE00REPORTABLEREPUBLIC OF NAMIBIAHIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKSENTENCECase no: CC 32/2001In the matter between:THE STATEandCALVIN LISELI MALUMO & 65 OTHERSACCUSEDNeutral citation:State v Malumo (CC 32/2001) [2016] NAHCMD 43 (8 December 2015)Coram:HOFF, J Heard:6, 7, 8, 9, 12 October 2015; 4, 6 November 2015; 3, 8, 9 December 2015Delivered:8 December 2015Summary:Sentence – General principles restated – crimes of high treason, murder, attempted murder – The triad consisting of the crime, the offender and the interest of society considered – Court also to consider the aims of punishment namely retribution, deterrence, prevention and rehabilitation. Aims of punishment to be dealt with as part of the interest-of-society component of the Zinn Triad. Balancing of factors in triad - May emphasize one factor at the expense of another in appropriate circumstances – ‘Balancing’ should be understood to mean that each factor afforded a certain weight, not that each factor should be afforded equal weight. Punishment to be blended with a measure of mercy according to the circumstances – Mercy has nothing in common with maudlin sympathy for an accused. Period of time in detention as trial awaiting prisoners must be taken into account – Period in detention not to be multiplied and subtracted from period of imprisonment regarded as appropriate, in the circumstances – Such amounts to a misdirection. Period in detention but one of factors to be considered together with other factors such as culpability and moral blameworthiness. Imposition of life imprisonment not in violation of article 8 of Namibian Constitution and therefore not unconstitutional. Granting of parole – a fact which a court may take notice of, but not to influence the severity of the sentence – Trial court may not impose excessively long sentence in an attempt to circumvent the premature release of the prisoner – ‘Methuselah’ sentence will amount to cruel, inhuman and degrading punishment – The question as to whether a particular form of punishment authorised by law can properly be said to be inhuman or degrading involves the exercise of a value judgment by the court.The determination of a specific term of imprisonment cannot be achieved according to an exact, objectively applicable yardstick- There can often be an area of uncertainty within which opinions as to an appropriate prison term could validly differ. The crime of high treason a pure political offence committed with a political objective – The state of mind of accused when offence is committed indicative. Relative political offences includes otherwise common crimes committed for political motives or in a political context. Every State has a right to its own sovereignty and to punish those individuals who by way of unlawful conduct intentionally endeavour to overthrow the government by force as to endanger the existence or security of the State or try to change the constitutional structure of the State.Interest of society – refers to natural indignation of members of community in respect of the commission of a specific offence and their expectations in respect of the sentence – Sentence imposed should serve society through the aims of punishment – Necessary to establish who the community is – Different groups in society may differ sharply in their views of the accused’s actions and the sentence to be imposed – Views of society not to be sought in those who stood at its extremes, but necessary to consider the views of the informed, reasonable, law abiding and balanced members of the community. Object of sentencing is not to satisfy public opinion but to serve public interest. In cases of serious crime the personal circumstances of the offender by themselves will necessarily recede into the background. Remorse or lack thereof is a factor to be considered – In order to be a valid consideration, pentinence must be sincere – Accused must take court fully into his/her confidence. The determination of whether an accused is sincerely remorseful and not simply feels sorry for himself/herself is a factual one, often determined from the actions of the accused rather than what is said in court.Convictions in respect of several offences – imposition of globular sentence – usually done in order to ameliorate the cumulative effect of sentences imposed for multiple convictions – Endorse the idea that imposing separate punishments for separate offences conduces to clearer thinking in determining appropriate sentence – Cumulative effect of sentences may be ameliorated by ordering the running together of sentences or part of sentences. Age of accused is a factor to be taken into account. Degree of participation in crime and degree of moral blameworthiness of accused, factors which normally justify the imposition of disparate sentences.ORDERI am of the view that the following sentences are appropriate sentences regarding the respective accused persons with due regard to their roles and the circumstances of this particular case: In respect of (the leaders): Bennet Kacenge Matuso (accused no 69), Geoffrey Kupuzo Mwilima (accused no. 68), John Sikundeko Samboma (accused no. 54), Alfred Tawana Matengu (accused no. 79), and Thaddeus Siyoka Ndala (accused no. 70) for their conviction in respect of the crime of high treason each accused is sentenced to a period of 35 years imprisonment of which a period of 17 years imprisonment if suspended for 5 years on condition the accused is not convicted of the crime of high treason committed during the period of suspension.In respect of each count of murder, each accused is sentenced to 30 years imprisonment of which a period of 12 years imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of the crime of murder committed during the period of suspension. In respect of each of the counts of attempted murder each accused is sentenced to 10 years imprisonment.This Court orders that the unsuspended periods of imprisonment imposed in respect of the murder counts and the periods of imprisonment imposed in respect of the attempted murder counts should run concurrently with the unsuspended period of imprisonment imposed in respect of the count of high treason.In respect of: (the attackers/soldiers) Aggrey Kayabu Makendano Moses Chicho Kayoka Richard Libano Misuha Charles Mafenyeko Mushakwa Chika Adour Mutalife Kingsley Mwiya Musheba Osbert Mwenyi Likanyi Rodwell Sihela Mwanabwe Albert Sekeni Mangalazi Rafael Lyazwila Lifumbela Postrick Mowa Mwinga John Pause Lubilo Chris Puisano Ntaba Saviour Ndala Tutalife and in respect of the conviction of high treason each accused is sentenced to 35 years imprisonment of which a period of 20 years imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of the crime of high treason committed during the period of suspension.In respect of each of the count of murder each accused is sentenced to 30 years imprisonment of which a period of 15 years imprisonment is suspended for 5 years on condition that the accused is not convicted of the crime of murder committed during the period of suspension.In respect of each of attempted murder each accused is sentenced to 10 years imprisonment.This Court orders that the unsuspended periods of imprisonment imposed in respect of the counts of murder and the periods of imprisonment imposed in respect of the attempted murder counts should run concurrently with the unsuspended period of imprisonment imposed in respect of the count of high treason.In respect of: (the supporters)Bollen Mwilima Mwilima Charles Nyambe Mainga Mathews Muyandulwa Sasele Fabian Thomas Simiyasa Kester Silemu Kabunga Mathews Mundi Pangula Bernard Maungolo Jojo Richard Simataa Mundia Martin Siano Tubaundule Chika Adour Mutalife (attacker/soldier) was described by this Court as an attacker or soldier on 2 August 1999 however this Court in the exercise of its discretion has decided to deal with him under this section due to his youthfulness at the time of his arrest. In respect of the conviction of high treason each accused is sentenced to 30 years imprisonment of which a period of 20 years imprisonment are suspended for a period of 5 years on condition that the accused is not convicted of the crime of high treason committed during the period of suspension.In respect of the counts of murder each accused is sentenced to 25 years of which a period of 15 years imprisonment is suspended for a period of 5 years on condition the accused is not convicted of the crime of murder committed during the period of suspension.In respect of the counts of the attempted murder each accused is sentenced to 8 years imprisonment.This Court orders that the unsuspended periods of imprisonment imposed in respect of the counts of murder and the periods of imprisonment imposed in respect of the crimes of attempted murder should run concurrently with the unsuspended period of imprisonment imposed in respect of the count of high treason.In respect of: (the light-lipped / taciturn)Victor Masiye Matengu Alfred Lupalezwi Siyata; and Bernard Maungolo Jojo (supporter)Bernard Maungolo Jojo (supporter) was found by this Court to be a supporter in the attempt to secede the Caprivi Region. However I have in the exercise of my discretion decided to deal with him under this category due to his advance age in years.In respect of the conviction of high treason each accused person is sentenced to 20 years imprisonment of which a period of 17 years imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of the crime of high treason committed during the period of suspension.In respect of the counts of murder each accused is sentenced to 20 years imprisonment of which a period of 17 years imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of the crime of murder committed during the period of suspension.In respect of the counts of attempted murder each accused is sentenced to 8 years imprisonment of which a period of 5 years imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of the crime of attempted murder committed during the period of suspension. This Court order that the unsuspended periods of imprisonment imposed in respect of the counts of murder and attempted murder should run concurrently with the unsuspended period of imprisonment imposed in respect of the count of high treason.George Kasana (accused no. 77) was convicted of count 272 ie contravening s. 2(c) read with section 8(1) of the Departure from the Union Regulation Amendment Act, 34 of 1955 as amended by the Departure from Namibia regulation Act, 4 of 1993 (illegal exit from Namibia).Oscar Kashalula Muyuka Puteho (accused 49) was convicted of count 273 similar to count 272 (Illegal exit from Namibia).George Masialeti Lisheo (accused 15) was convicted of count 274 i.e. contravening s. 6(1) of the Immigration Control Act 7 of 1993 (Illegal entry into Namibia).In respect of:George Kasanga (accused 77); Oscar Muyuka Puteho (accused 49) each accused is sentenced to 6 months imprisonment which 6 months imprisonment is suspended in toto for a period of 3 years on condition that the accused is not convicted of contravening s. 2 (c)1 read with s. 8(1)(a) of the Departure from the Union regulation Amendment Act, 34 of 1955 as amended by the Departure from Namibia regulation Act, 4 of 1993 committed during the period of suspension.George Masialeti Liseho (accused 15) is sentenced to 6 months imprisonment which 6 months imprisonment is suspended in toto for a period of 3 years on condition that the accused is not convicted of contravening s. 6(1) of the Immigration Control Act, 7 of 1993 committed during the period of suspension.JUDGMENTHOFF, J:[1]This Court convicted the accused persons on one count of high treason, nine counts of murder and ninety-one counts of attempted murder on the basis of conspiracy to secede the Caprivi Region from the rest of Namibia by violent means.[2]The Court found the following facts either common cause or not seriously disputed: That the Republic of Namibia is a sovereign State; that the accused persons owe allegiance to the Republic of Namibia; that various public and private meetings were held at different places in the Caprivi Region between 1992 and 1998; that the topic of discussion at these meetings was the secession of the Caprivi Region from the Republic of Namibia by either violent or non-violent means; that Mr Muyongo’s army set up camp during October 1998 at Lyibu-Lyibu on the eastern side of Linyati in preparation of liberating the Caprivi Region by violent means, and that one Victor Falali was killed after he escaped from this camp at Linyati; that a group of 92 armed individuals fled to Botswana shortly afterwards; that inhabitants from the Caprivi Region started fleeing to Botswana in order to seek education, employment and an opportunity to liberate the Caprivi Region by violent means; that the conspiracy to secede the Caprivi from the rest of Namibia continued unabated in Botswana; that a plan was hatched in Botswana that refugees should escape and return to Namibia; that a group of approximately 100 Namibian men with fire-arms gathered at Navumbwe and Island were treated by a traditional healer in preparation of the imminent attack on the Caprivi Region; that from 31 July to 1 August 1999 people gathered at Makanga bushes in preparation for the attack; that at Makanga those present were transported in a government owned TATA truck and other vehicles, were registered, and thereafter divided into groups in order to attack specific targets; that at Makanga after final instructions, the co-conspirators were transported and some walked to their various destinations of attack; that during the early hours of the morning on 2 August 1999 various Government institutions in the Caprivi Region were attacked with mortars and fire-arms; that the institutions that were attacked were ‘Katounyana Special Field Force base, Katima Mulilo police station, Wanela border post, Katima Mulilo town centre, the Namibian Broadcasting Corporation in Katima Mulilo, Mapacha military base, and the house of sergeant Patrick Liswani; that the attackers tied red ribbons around their heads; that as a result eight police officers and soldiers lost their lives; that a state of emergency was declared in the Caprivi Region and Inspector Goraseb, the Regional Commander of the of the Namibia Police Force in the Caprivi Region, was instructed ‘to arrest all the prominent and executive members of the United Democratic Party (UDP)’, and that after the attack the rebels regrouped at Cameroon, Masokotwane, Malongwa Island and Kaliyangile with the aim to launch a second attack. [3]This Court found that the UDP established a military wing known as the Caprivi Liberation Movement/Caprivi Liberation Army in order to facilitate the secession of the Caprivi region from the rest of Namibia, by force.[4]I shall later deal with the participation of each accused person in their attempt to secede the Caprivi region.[5]In considering and appropriate sentence where an individual has been convicted of a criminal offence, ‘the difficulty arises, not so much from the general principles applicable, but from the complicated task of trying to harmonize and balance these principles and apply them to the facts’.[6]The general principles to the considered in the determination of an appropriate sentence are principles developed by the courts over the years and are not found in any statute. These general principles, also referred to as the triad, consist of the crime, the offender, and the interests of society. In the determination of an appropriate sentence a Court must also consider the aims of punishment namely retribution, deterrence, prevention and rehabilitation. In respect of the question of how the aims of punishment should be incorporated into the Zinn triad, SS Terblance suggests that ‘theoretically’, the aims of punishment ‘should be dealt with as part of the interest-of-society component of the Zinn triad’.[7]It has been stated that in sentencing a court must strive to balance the three factors in the triad. However it is an accepted principle that a court may, depending on the circumstances, emphasise eg the seriousness of the offence at the expense of the personal circumstances of an accused person, and that ‘balancing’ should be understood to mean each factor should be afforded a certain weight, not that each factor should be afforded equal weight. Levy AJP said in this regard that were ‘the nature of the offence arouses moral indignation and the purpose of the penalty is clearly retributive, the interests of the accused are then secondary to those factors’.[8]Holmes JA remarked in general: ‘Punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances’.[9]This Court held that: ‘Compassion for the offender is the mark of an enlightened society. What constitutes mercy in a particular case and its application can be elusive,’ but that mercy has nothing in common with maudlin sympathy for the accused, and recognises that fair punishment may sometimes have to be robust. Damaseb JP in this regard stated the following:‘A sentencing judge must never loose sight of the importance of blending his or her sentence with a measure of mercy. In my view, exercising mercy does not mean that the Court must abdicate its responsibility to protect society; nor does it mean that convicted prisoners must always get away it light sentences. Properly construed, what it means is that if the facts and circumstances of the case call for it, a Court must blend its sentence with some mercy and give the accused another chance in life by imposing a sentence that either keeps the convicted person out of prison or returns the convict to the community after only a brief period in prison. In certain cases that may well not be possible in view of the seriousness of the offence and the interests of society which require deterrent treatment of the offender.’[10]A factor which must be taken into account in the determination of an appropriate sentence is the period of time in detention as a trial awaiting prisoner. It was submitted by Mr Samukange that the period in detention should be multiplied by three (according to some authorities) and that figure taken into consideration in determining the final term of imprisonment to be served by an accused person. Where as in the present instance a number of accused persons had been in custody for 16 years, this means that such an accused person has already served 48 years in prison and should at this stage be released.[11]The Supreme Court of Namibia (per Strydom AJA) held in this regard that ‘such a period is not arithmetically discounted and subtracted from the overall sum of imprisonment imposed. This is a factor which is considered together with other factors, such as the culpability of the accused and his or her moral blameworthiness, to arrive at an appropriate sentence in all the circumstances of a particular case’. [12]In the matter of The Director of Public Prosecutions North Gauteng: Pretoria and Skhosiphi Gcwala and Two Others with regard to a similar submission, Lewis JA said:‘The submission probably has its origin in S v Brophy and another 2007(2) SACR 56 (W), where the court held that as a rule of thumb, “imprisonment while awaiting trial is the equivalent of a sentence of twice that length” – a quotation from a Canadian case, Gravino (70/71) 13 Crim LQ 434 (Quebe Court of Appeal), cited also in S v Stephen and another 1994(2) SACR 163 (W) at 168 e-g. The rule of thumb was not approved in S v Vilakazi and others 2000(1) SACR 140 (W) at 148 a-e and this court has recently doubted its application and, in S v Radebe and another 2013(2) SACR 165 (SCA), ruled it to be inappropriate.’ [13]It appears that the rationale for this rule of thumb is that the time spend in custody awaiting trial is equivalent to twice that length because of the harsher conditions to which awaiting-trial prisoners are subjected in comparison with convicted prisoners.[14]Lewis JA in Radebe stated: ‘A better approach, in my view, is that the period in detention pre-sentencing is but one of the factors that should be taken into account in determining whether the effective period of imprisonment to be imposed is justified: whether it is proportionate to the crime committed. Such an approach would take into account the conditions affecting the accused in detention and the reasons for a prolonged period of detention. It was held that the doubling of the period spent in custody, cannot be justified and that the deduction of such a period from the number of years the trial court thought was warranted, amounted to a misdirection.[15]In view of the authorities referred to, the submission that the period in detention prior to sentence should be multiplied, cannot be considered. It appears from the submissions by counsel for the defence as well as counsel on behalf of the State that a term of imprisonment would be an appropriate sentence in respect of the convictions for the crimes of high treason, murder and attempted murder, but divergent arguments were presented in respect of the nature of such imprisonment, namely whether it should be in the nature of suspended terms of imprisonment or direct terms of imprisonment. [16]In respect of a direct term of imprisonment, disparate submissions were made in respect of the length of such term of imprisonment. [17]Some defence counsel argued for totally suspended sentences or short terms of imprisonment, whilst Mr July, counsel on behalf of the State urged this Court to impose very long terms of imprisonment. Mr July submitted with reference to the matter of Stoney Neidel (supra) where accused persons had been convicted (inter alia) of eight counts of murder, and where sentences of 105 years imprisonment and 84 years imprisonment had been imposed on two of the accused persons, that this Court would be justified to impose a determinate term of imprisonment of ‘three digits’.[18]Mr July was very emphatic that the State does not argue for the imposition of imprisonment for life, on the basis that a person can only serve one term of life imprisonment. It was further submitted that should this Court, for example, impose life imprisonment for the crime of high treason, an accused person would not be punished in respect of the murder and attempted murder convictions. I understand this argument (although not expressly stated by Mr July) to be founded on the fact that any determinate term of imprisonment or another terms of life imprisonment would automatically run concurrently with the first term of life imprisonment imposed upon an accused person.[19]One of the questions considered by the Supreme Court of Namibia in S v Tcoeb was whether life imprisonment was in violation of Article 8 of the Constitution of Namibia which prohibits the imposition of cruel, inhuman or degrading punishment, and therefore unconstitutional. The response to this question by Mahomed CJ was that there ‘can be little doubt that a sentence which compels any person to spend the whole of his or her life in incarceration, divorced from his family and friends in conditions of deliberate austerity and deprivation, isolated from access to and enjoyment of the elementary bounties of civilised living is indeed a punishment of distressing severity. Even when it is permitted in civilised countries it is resorted to only in extreme cases either because society legitimately needs to be protected against the risk of repetition of such conduct by the offender in future or because the offence committed by the offender is so monstrous in its gravity as to legitimate the extreme degree of disapprobation which the community express through such a sentence’.[20]Chief Justice Mahomed continued as follows:‘It seems to me that the sentence of life imprisonment in Namibia can therefore not be constitutionally sustainable if it effectively amounts to an order throwing the prisoner into a cell for the rest the prisoner’s natural life as if he was a “thing” instead of a person without any continuing duty to respect his dignity (which would include his right not to live in despair and helplessness without any hope of release, regardless the circumstances.’ [21]The Chief Justice concluded his response to the question posed as follows:‘For the reasons I have articulated I am unable to hold that life imprisonment as a sentence is per se unconstitutional in Namibia, regard being had to the fact that the relevant legislation permits release on parole in appropriate circumstances’.[22]The evidence before this Court is that in terms of the current legislation applicable in Namibia a prisoner, sentenced to an indeterminate period of life imprisonment is eligible to be released on parole where such a prisoner has served at least a period of 25 years imprisonment and where the National Release Board is satisfied that certain prescribed conditions have been met. Where a prisoner serves a determinate term of imprisonment for the commission of a scheduled offence such a prisoner would be eligible to be released on parole where he or she has served two thirds of his or her imprisonment. The Correctional Service Act makes also provision for release on medical grounds and pardon or reprieve by the President.[23]The granting of parole is a fact which courts may take notice of, but it may not influence the severity of the sentence. A trial court may not impose an excessively long sentence in an attempt to circumvent the premature release of prisoners by the executive branch of government. Farlam JA, on this point expressed himself as follows:‘. . . under the law as it presently stands, when what one may call a Methuselah sentence is imposed (i.e. a sentence in respect of which the prisoner would require something approximating to the longevity of Methuselah if it is to be served in full) the prisoner will have no chance of being released on the expiry of the sentence and also no chance of being released on parole after serving one half of the sentence. Such a sentence will amount to cruel, inhuman and degrading punishment which is prescribed by s.12(1)(e) of the Constitution of the Republic of South Africa Act 108 of 1996.’[24]In Nkosi an accused person was convicted of nine counts of murder and ten counts of attempted murder and sentenced to an effective period of 120 years imprisonment by the trial court. On appeal the sentence was set aside and substituted with one of life imprisonment. The question this Court posed to all counsel in view of the suggestion that this Court should impose direct imprisonment of ‘three digits’ whether such a sentence would not be in violation of Article 8 of the Namibian Constitution and therefore unconstitutional. All defence counsel were of the view that such a sentence would amount to cruel, inhuman or degrading punishment.[25]Mohamed CJ (supra) in the context of life imprisonment expressed the view that depending on the nature of the offence, a punishment which is grossly disproportionally in its severity may well constitute cruel, inhuman or degrading punishment.[26]I am of the view that where a determinate term of punishment is imposed which may qualify as a ‘Methuselah’ sentence, such a punishment, depending on the particular circumstances of the case, may be in violation of Article 8 of the Constitution of Namibia, and therefore unconstitutional, where any hope of ever being released on parole is extinguished or eliminated. [27]Mahomed AJA remarked:‘The question as to whether a particular form of punishment authorised by law can properly be said to be inhuman or degrading involves the exercise of a value judgment by the Court. (S v Ncube and others (supra at 717 I). It is however a value judgment which requires objectively to be articulated and identified, regard being had to the contemporary norms, aspirations, expectations and sensitivities of the Namibian people as expressed in its national institutions and its Constitution, and further having regard to the emerging consensus of values in the civilised international community (of which Namibia is a part) which Namibians share. This is not a static exercise. It is a continually evolving dynamic. What may have been acceptable as a just form of punishment some decades ago, may appear to be manifestly inhuman or degrading today. Yesterday’s orthodoxy might appear to be today’s heresy’. [28]It must be stated that where a trial court imposes a sentence it exercises a judicial discretion in accordance with judicial principles, and it has been held that ‘… it would be unrealistic to overlook the fact that determination of a specific imprisonment term cannot be achieved according to an exact, objectively applicable yardstick and that there can often be an area of uncertainty within which opinions as to an appropriate prison term could validly differ’.[29]I shall now deal with the crimes of which the accused persons had been convicted of namely high treason, murder and attempted murder. These are all very serious crimes. I have already dealt with the backdrop against which these crimes had been committed. The majority of defence counsel submitted that these crimes and in particular the crime of high treason, in the particular circumstances, be viewed as ‘political offences’. Mr July who appeared on behalf of the State disagreed.[30]This Court was referred to the matter of Republic of Namibia v Alfred and Others where Tebbut JA was concerned with an application for extradition of 13 persons from Botswana to Namibia in order to face certain charges inter alia high treason. The respondents were part of the Caprivi Liberation Army which desired to secure the secession of the Caprivi Region (now Zambezi Region) from the rest of Namibia. The pertinent question to be considered was whether high treason is a political offence. In terms of the relevant legislation a person is exempted from extradition where such a person is to face, in the requesting country, a charge of political character.[31]Tebbut JP stated that the phrase an ‘offence of a political character’ has been called ‘inherently imprecise’ and after having examined case law in the United Kingdom as well as in the USA, concluded that in both these jurisdictions treason has been said to be a political offence. He expressed himself as follows:‘A distillate of those views would therefore be that to constitute an offence of a political nature the person committing such offence should be at odds with the government of his state and the offence should be an incident of a political struggle, either in existence or in contemplation, between the government and one or more opposing factions where the offence is committed. It would also not be necessary that the political objective of the alleged offender should be the overthrow of the government of his state. It would suffice if the objective was to compel the government to change its policy in regard to one or other aspect of governance with which the accused is at odds with the state. This could include bringing about the unconstitutional secession of a region. The use of violent measures would also not take away the political nature of an offence’. [32]And continued as follows:‘In the Pitawanakwat case supra Stewart J citing the Quinn case said:“Political offences traditionally fall into one of two categories: ‘pure political offices’ or ‘relative political offences’. ‘Pure political offences’ are acts aimed directly at the government, and have none of the elements of ordinary crimes. These offences which include treason, sedition, and espionage do not violate the private rights of individuals. In contrast, the category of relative political offences includes ‘otherwise common crimes committed in connection with a political act’ or common crimes … committed for political motives or in a political context.’[33]I agree that high treason by its very nature is a crime committed with a political objective. This objective distinguishes crimes the accused had been convicted of from those, for example, in the Stoney Neidel case which was described as ‘gruesome mass murders’ committed by one particular accused. Another distinguishing factor is that no one accused person in this matter has been identified as an individual responsible for the killing of a particular deceased person.[34]No evidence was presented that in their quest for independence the UDP through public discourse tried to engage the government in negotiations in order first to explore the avenue of a constitutional settlement.[35]It is apparent from the interview conducted shortly after the attack that it was a deliberate strategy of Mishake Muyongo to attack first, and thereafter try to engage in negotiations. Nevertheless, in my view the nature of the offences remain the same, namely, pure political (high treason) and relative political offences (murder and attempted murder).[36]One of the juristic elements of the political offence, as stated in the Alfred case, is the mental element ie the state of mind of an accused when he committed the offence.[37]I endorse the sentiments expressed by Jordaan J in the matter of The State against Michael du Toit and 22 others (commonly referred to as the ‘Boeremag’ case) where it was stated that every State in the world has a right to its own sovereignty and to punish those individuals who by way of unlawful conduct intentionally endeavour to overthrow the government by force or to endanger the existence or security of the State or try change the constitutional structure of the State.The offender[38]I shall now deal with the individual accused persons.Clients of Mr KautaBollen Mwilima Mwilima – accused no. 65[39]This accused did not testify in mitigation of sentence. Mr Kauta placed the following personal particulars on record:[40]The accused was born on 28 May 1967; was arrested on 4 August 1999; was married and is the father of five children; the eldest child is 25 years old and the youngest 17 years. The accused was a teacher and holds a certificate in Higher Education and is in his final year of study for a Master’s Degree in Education with the University of South Africa. Prior to his arrest he was a farmer and owned a house. He is currently suffering from acute high blood pressure. During and after his arrest was assaulted by members of the Namibian Police Force. The accused did not personally take part in the attack on 2 August 1999 and was described as a supporter by Mr July, counsel appearing on behalf of the State. [41]This Court found that the accused was a supporter of the Caprivi Liberation Army; he donated money for the purchase of weapons, provided his vehicle to a co-accused Thaddeus Ndala, who in turn used the vehicle to provide food and water to a group of rebels in the bush; he incited persons to join rebels in the bush, and threatened a witness who had been to Dukwe refugee camp with death for allegedly spreading false rumours about the conditions at Dukwe, he personally transported people to the Botswana border in order to advance the cause, he was one of a group of persons who went to warn Muyongo that it was time to flee the country after the death of Victor Falali, he went to Dukwe refugee camp in order to relay information and to render assistance to the refugees, and his co-conspirators acknowledged him rendering a great deal of assistance to the people in the bush.[42]All defence counsel in their respective addresses on sentence including Mr July on behalf of the State, referred to a factor which the sentencing court must take into account namely, the moral blameworthiness of a particular accused person and the need for individualisation. This Court was referred to relevant case law in the regard. [43]This Court in S v Kanguro stated the following regarding moral blameworthiness:‘In determining what an appropriate sentence under the circumstances of this case would be, the accused’s mental condition, and more specifically her state of mind at the time of committing the offence, is a crucial factor in the court’s determination of accused’s moral blameworthiness. It is trite that the degree of moral blameworthiness should be reflected in the sentence imposed on the offender.’[44]Mr July referred to Bollen Mwilima as a ‘leading supporter’ who actively availed himself and his resources to the cause and that he tried unsuccessfully to downplay his role in court.Alfred Lupalezwi Siyata – accused no. 80[45]This accused person did not testify in mitigation of sentence. His personal circumstances were placed on record from the bar. He was employed by the Namibia Government as a security officer and was arrested on 4 August 1999. He is 51 years old. He was married but his wife passed away on 19 March 2005. During his arrest he was assaulted by members of the Namibian Police. He was a member of SWAFT Battalion 701. He completed Grade 12. He is the father of three children, two of whom are majors and the youngest child is a minor and in Grade 8. He is presently suffering from high blood pressure. The accused did not personally participate in the attack on 2 August 1999.[46]This Court found that the accused person on the strength of evidence presented by the State and from his own testimony that the accused had known about plans to secede the Caprivi region from the rest of Namibia and failed to alert the authorities about such plans.[47]Mr July submitted that the accused had shown no remorse for his actions or failure to act, that such failure resulted in the attack and subsequent deaths and injuries to victims that the accused actively supported those individuals who went to Botswana and that his age (being a mature adult person at the time of the commission of the offences) must be taken into account as an aggravating factor; that the accused provided support to the CLA whose members’ actions subsequently caused the death of Victor Falali.Charles Nyambe Mainga – accused no. 87[48]The accused did not testify in mitigation of sentence. The accused is 54 years old, is married and the father of three children and a grandfather. He obtained a Grade 12 certificate and was at the time of his arrest on 4 August 1999 employed by Telecom Namibia. He started his employment on 30 March 1991. He was previously employed by Nampost and prior to that was a member of the SWATF from 1985 until 1989. He owned a house and motor vehicle prior to his arrest. He was assaulted by members of the police force. He is presently suffering from high blood pressure and diabetes and has developed during his incarceration severe asthma and is on ‘chronic medication’. The accused did not personally participate in the attack on 2 August 1999.[49]The finding of this Court at par 23 of the trial reads as follows in respect of the involvement of the accused in the attempt to secede the Caprivi Region:‘If one has regard to the contradictions in his testimony, his evasiveness during cross-examination and the evidence of the State witness, these considerations, compel me to conclude that his denial that Richard Mbala was employed for the period mentioned is not reasonable possibly true and is rejected This in turn implies that the accused indeed had the opportunity to speak to Richard Mbala and that he indeed had the conversation with the witness as testified. This in my view supports the contention that the accused actively supported the idea of seceding the Caprivi region and the he had known about an impending attack by the CLA in order to achieve this goal and did not inform the authorities about it.’[50]This accused person not only had knowledge of an impending attack but he advocated the secession of the Caprivi from the rest of Namibia. It was submitted by Mr July inter alia that this accused person showed no sign of remorse.Mathews Muyandulwa Sasele – accused no. 100[51]The accused did not testify in mitigation of sentence. The accused is 57 years old. He was arrested on 5 August 1999. The accused passed Grade 12 and at the time of his arrest was unemployed. Prior to his arrest he was employed as a police officer from 1990 until 8 April 1999 when he was discharged. The accused was previously employed as a storeman at SWATF. He was assaulted by members of the Namibian Police Force during his arrest and subsequent incarceration. The accused is married and the father of seven children of whom three are still attending secondary school. The remaining four children are employed. The accused is suffering from acute diabetes, hypertension, and gout and takes medication on a daily basis. The accused did not personally participate in the attack. The accused was an active supporter. He attended meetings where the issue of secession by violent means were discussed and expressed support for that cause.[52]This Court stated the following in the trial judgment:‘The accused was an untruthful witness and tried, unsuccessfully in my view, to present himself as apolitical police officer, and a person who was not in the least interested or involved in local politics. His denial of any involvement cannot be accepted in view of the uncontested evidence to the contrary as reasonably possible true …’[53]Mr July submitted that this accused also showed no remorse for his involvement in the attempt to secede the Caprivi Region.The clients of Mr Kavendjii Aggrey Kayabu Makendano – accused no. 11[54]The accused did not testify in mitigation of sentence. His personal circumstances were placed on record form the bar. The accused is 48 years old. He completed his secondary education in 1993. During 1995 to 1997 he was a student at the University of Namibia where he obtained a BA degree. Thereafter he taught briefly from 4 February 1998 until 31 December 1998. During his incarceration he obtained a Postgraduate Diploma in Education. He also obtained a Bachelor of Education Honours Degree from the North West University. The accused is presently enrolled with UNISA for the degree in Education Management.[55]The accused was married but during 2001 his wife returned to her family and is presently cohabiting with another man. The accused is the father of five daughters. The eldest one was born on 26 August 1987 and the last one was born on 13 February 1999. Two of the children left school due to lack of financial support. Two children stay with their mother and are in Grades 9 and 10 respectively. One daughter is studying for a Diploma in Archives and Record Management at the University of Namibia. The father and mother of the accused passed away during 2007 and 2009 respectively. He had also lost a brother and a sister whilst in incarceration. The accused was arrested on 12 August 1999.[56]This Court found the following in respect of the involvement of this accused:‘The evidence presented to Court is that the Caprivi Liberation Army also known as the Caprivi Liberation Movement was established by the UDP, as an instrument to liberate the Caprivi Region by violent means with the aim to establish an independent State. In order to achieve this ultimate goal, it was politically expedient to sacrifice human lives.Accused no. 11 in his bail application testified that he went to Botswana in order to achieve this ultimate aim, namely the attainment of the independence of the Caprivi region. The accused as a member of the Caprivi Liberation Movement was prepared to make his own contribution through the “barrel of the gun”. His testimony was that he left Dukwe refugee camp and crossed illegally into Zambia as a member of the Caprivi Liberation Movement. In Zambia, he and others received training from co-accused John Samboma. The only training they could have received was military training in preparation for attacks in the Caprivi region. Accused no. 11 was arrested a few days after the attack on Katima Mulilo.’ [57]There is testimony that the accused was seen at Makanga bush on the evening prior to the attack where rebels had been divided into certain groups with the aim to attack different targets. During the trial the accused acted a spokesperson on behalf of a group of undefended accused persons and addressed this Court and the views expressed by him was described by this Court as follows:‘What the accused informed his Court during his address is in my view much more than just a confirmation of his challenge to the jurisdiction of this Court. It is consistent with his political views he held when he fled to Dukwe and subsequently to Zambia in his capacity as member of the Caprivi Liberation Movement, and consistent with the aims of the CLA, namely an independent Caprivi’.[58]The role of the accused was that of a soldier or attacker. It was submitted by Mr July that the accused showed no remorse for the loss of lives caused as a result of the attack.George Masialeti Liseho – accused no. 15[59]He did not testify in mitigation of sentence. He was convicted of unlawfully entering Namibia. He is 55 years old and the father of three daughters. He left school when he was in Grade 10. The mother of his children passed away while he was in custody. Both his mother and father passed away whilst he was in custody. He has one surviving sister.The clients of Mr Dube Moses Chicho Kayoka – accused no. 47[60]The accused did not testify in mitigation of sentence. He is 65 years old. His parents, now deceased, were communal farmers. The accused received no formal education. He is married and was the father of six major children. At the time of his arrest on 2 September 1999 he had two wives. His first wife passed away during the year 2001. The accused was the sole breadwinner of his family. Three of his children died whilst he was in custody. Prior to his arrest he was a productive communal farmer. He was employed as a cleaner at Makanga Combined School from 1990 to 1998.[61]The communal farming activities collapsed after his arrest. He is a first offender. He suffers from ‘intense’ high blood pressure’. The accused was mistreated at the time of his arrest. Mr Dukwe asked this court to temper the sentence to be imposed upon the accused with a measure of mercy.[62]This Court found in respect of the involvement of this accused the following:‘The evidence of the witness Simulu related to an event prior to 2nd August 1999 when the accused, as testified, was amongst a group of persons who sought military assistance from UNITA in order to secede the Caprivi region by violent means. The evidence of Munyika (and other members of NDF) relates to an event after 2nd August 1999 after the attack on Katima Mulilo. There is evidence before this Court that after the failed attempts on 2nd August 1999, there was an attempt to organise the conspirators for a second attack in the Caprivi region. The evidence presented by the State constitutes direct and undisputed evidence that the accused participated in events prior to and after the attack on 2nd August 1999.’[63]On 1st September 1999, the day prior to his arrest the accused was in possession of an automatic rifle (AK47). The accused was a soldier or attacker in the effort to secede the Caprivi Region. It was further submitted by Mr July that the accused was part of the group of 92 which group was responsible for the death of Victor Falali.Richard Libano Misuha – accused no. 48[64]This accused did not testify in mitigation of sentence. The accused is 59 years old. The parents of the accused were communal farmers. His father died in 1997. His mother is 82 years old. Other family members also died during the period of his incarceration. The accused passed standard 3 at Masida Primary School. He was arrested on 7 November 1999. The accused is married and the father of five major children who did not attain any meaningful standard of education due to the fact that no one could financially support them due to the incarceration of the accused. The accused was the sole breadwinner and prior to his arrest was a successful communal farmer. The farming activities collapsed as a result of his arrest. He is a first offender. He suffers from high blood pressure. He prays that the sentence to be imposed be tempered with a measure of mercy.[65]This Court found that the evidence was that the accused was present at Makanga bush the night prior to the attack on 2 August 1999. It was here at Makanga bush that the rebels were divided into groups in order to attack different targets. One of the witnesses testified that the accused was armed. The court concluded:‘The accused did not testify in his defence. There is direct evidence implicating the accused in the offence of high treason. This evidence called for an answer but none was forthcoming from the accused.’[66]It was submitted by Mr July that this accused was part of the group of 92 which group was responsible for the death of Victor Falali. The accused was an attacker on 2 August 1999.The clients of Mr. SamukangeBenet Kacenze Mutuso – accused no. 69[67]This accused did not testify in mitigation of sentence. The accused is 54 years old, is married and the father of four children. The eldest son was born on 3 February 1984 and the youngest, a daughter was born on 3 July 1989. He is the grandfather of two grandchildren who were born whilst he was in detention. Both his parents are deceased. He was arrested on 16 March 2000 at a roadblock. Whilst in custody at the military base in Grootfontein he was shot with an AK 47 in his right leg, had to undergo an operation which resulted in him having a ‘short foot’.[68]Whilst at school he advanced until Grade 10. He was admitted at the Christian Leadership University in the USA ‘on mature entry’ and now holds a degree in Christian Ministry. He was previously employed by SWATF and employed as a petrol attendant at Zambezi Shell Filling Station until 28th October 1998 at which stage he left for Botswana ‘due to harassment’.[69]In documentary evidence received by this Court the accused referred to himself by the name ‘Spiderman’ and as a ‘Brigadier’ in the CLA. He was a leader figure and was committed to fight militarily for the independence of the Caprivi Region from Namibia. He was the author of documents seized inside Mpacha military base in which a plan to invade the Caprivi region was described in graphic detail and his role in the plan to attack the Region. The accused also propagated the secession of the Region from the rest of Namibia. The connection between the UDP and the CLA is also apparent from these documents. He was arrested on 29 April 2000.[70]It was submitted by Mr July that the accused should be judged harshly for being responsible for killing and injuring former colleagues in the NDF at Mpacha military base.Charles Mafenyeko Mushakwa – accused no. 73[71]This accused did not testify in mitigation of sentence. He is 54 years old, is married and a father of three girls. The mother of these girls is unemployed and the children have become destitute. His father passed away in 2012 and his mother is 79 years old and unable to look after herself. He was assaulted upon his arrest. He is suffering from various ailments and has ‘continuous health problems’. At once stage during the trail he was unable to attend court proceedings continuously for a period of six months and is presently using crutches to get along.[72]This Court found the involvement of the accused to be as follows: ‘It is common cause that the accused was in Zambia during June 1999. It is not disputed that the accused was together with accused no. 72 when they were arrested on 18 June 1999. It is also common cause that the accused who was part of the Steven Mamili group was handed over to members of the Namibia Police Force by members of the Zambian Force on 7 August 1999. Christopher Lifasi Siboli testified and stated that Charles Mushakwa was someone who recruited persons for the CLA and that he was also a mobilisor of persons in connection with the secession of the Caprivi Region. This witness identified Charles Mushakwa in Court as accused no. 73.’[73]This accused was also part of a group of individuals led by John Samboma first into Zambia and thereafter into Angola in order to seek military assistance from UNITA with the aim of seceding the Caprivi region by violent means. When the attack took place on 2 August 1999 this accused was in prison in Zambia and could not have participated in the execution of events which took place on that day. Nevertheless the excursion into Angola occurred shortly after 2 October 1998 at a stage when the accused was not in Zambia.[74]The accused was one of the attendants at a meeting during 1998 where the topic of discussion was the secession of the Caprivi Region. There is further documentary evidence to the effect that the accused was part of a group of persons who during 28/29 October 1998 fled with Muyongo to Botswana. This fact, it was submitted by Mr July, shows that the accused was a close confidante of Muyongo. This accused can be described as a soldier and a leader figure in the CLA.Clients of Mr Neves Chika Adour Mutalife – accused no. 2[75]This accused did not testify in mitigation of sentence. He was 19 years old when he was arrested on 9 August 1999. It was submitted by Mr Neves that the accused does not associate himself with the ideologies of the UDP. He was in Dukwe and returned through repatriation to Namibia. The father of the accused was a communal farmer. Whilst in detention the accused obtained a certificate of secondary education from Cambridge International, from the Ministry of Education and Sport, Namibian Secondary Certificate and a diploma in Veterinary Surgery Assistant. His father was also arrested in this matter but died during September 2002. He has six sisters. His mother died whilst he was in detention. His sisters all dropped out of school due to a lack of parental guidance and financial assistance. He was severely assaulted by members of the NDF and members of the Police Force. He has remorse but has not killed anybody. He spent the years of his youth incarcerated.[76]This Court found that the evidence of the accused that he went to Botswana for the purpose of education is highly unlikely in view of his answers given during cross-examination. This Court further found that the ‘testimony of John Libuku that the accused and Rodwell Sihela had told him that they went to fight at the police station and that the fight did not last long, since they were few and ran away, was never disputed by the accused during cross-examination. The accused also never denied this evidence during his evidence-in-chief and this evidence stands uncontradicted’.[77]And found further:‘If one has regard to the uncontroverted evidence in respect of the contents of a conversation after the attack in respect of a fight at the police station, the appearance of the accused person (i.e. he was soiled with dirt), the conversations prior to the attack, the bare denials by the accused and the fact that the accused was a poor witness, compel me to conclude that the accused participated in a conspiracy with hostile intent and with the aim to secede the Caprivi from Namibia by violent means or at the very least had knowledge thereof and failed to alter the relevant authorities.’[78]The accused was in my view one the attackers.Kingsley Mwiya Musheba – accused no. 9[79]The accused did not testify in mitigation of sentence. He is 57 years old, was a communal farmer, and had no formal education. He is the father of five children. Due to financial constraints some of the children dropped out of school at an early age. He has seven grandchildren. His father is 98 years old. His mother passed away when he was still at a young age. He has suffered financially after his arrest. He lost all 15 heads of cattle he had. He was arrested on 2 August 1999. He was the sole breadwinner of the family. After his arrest he was tortured at Mpacha military base by member of the NDF. The accused is ‘sorry’ for those who lost their lives but says that he was not responsible. He wants to go home in order to support his family.[80]This Court found that the accused person was one of four rebels who had been arrested inside the premises of Mpacha military base on the morning of 2 August 1999 just after the attack. His role in the attempted secession was therefor that of an attacker or soldier.Geoffrey Kupuzo Mwilima – Accused No. 68[81]This accused did not testify in mitigation of sentence. The accused was employed as a teacher since 1978 at various secondary schools in the Caprivi Region and also served as a principal at two secondary schools. Prior to the Independence of Namibia he was a member of Parliament in the transitional government. From 1992 until 1999 he served as a member of Parliament in an independent Namibia representing the DTA. He married his second wife in 1985. He is the father of four children from his first marriage and the father of three children in his second marriage. He lost his elder brother in 1978 and has adopted his three children. He has 20 grandchildren some of his children completed their tertiary education whilst he was in detention (two children obtained master’s degrees). He was able to assist them financially with their studies with his pension.[82]He was arrested on 4 August 1999. At that stage he suffered from diabetes. He suffered financially. He lost about 500 heads of cattle, and three tractors are in a state of disrepair. Both parents and a sister had passed away whilst in detention. His wife is a qualified nurse, is the holder of a Masters Degree and is a Director of Health in the Zambezi Region. During the time in detention there was a lack of interaction with his children and grandchildren. The accused suffers from diabetes mellitus, chronic kidney failure and hypertension and is being treated on the kidney dialyses machine thrice per week. The accused requires a strict diet to ensure his well-being. The accused suffered “seizures” and was admitted and kept at the ICU at the Roman Catholic Hospital from 13 October 2014 until 14 November 2014.[83]The accused, through his legal representative, expressed remorse for what had happened on 2 August 1999, but stated that he did not participate in the actions which caused the loss the of life. The accused asked for leniency. The accused is 60 years old. It is common cause that the accused was severely assaulted by members of the Namibian Police Force after his arrest on 4 August 1999.[84]In respect of the involvement of this accused in the attempt to secede the Caprivi Region from the rest of Namibia this Court found: That he attended and addressed various meetings at which the topic of secession by violent means were discussed. This accused was also present when Muyongo addressed meetings on the same topic. He was one of the leaders at the movement to secede the Caprivi Region and actively propagated the secession of the region.[85]The accused was a member of the UDP, the party who established the CLA as its military wing. After Muyongo had fled to Botswana during October 1998, the accused admittedly attempted to revive the UDP. The accused was at one stage an office bearer of the UDP.[86]It was submitted by Mr July that the accused as a member of Parliament had taken the oath to uphold and defend the Constitution of the Republic of Namibia, and through his subsequent conduct dismally failed to live by this oath. His conduct in this regard was morally reprehensible.Clients of Mr NyoniOscar Muyuka Kushalula Puteho – Accused No. 49[87]This accused was convicted of contravening provisions of the Immigration Act. The accused was married and the father of seven children, one of who had passed away during 2003 whilst he was in detention. He had two wives. One wife passed away in 2005. The other wife subsequently remarried. The accused passed standard 5 and was a member of SWATF until 1989. He was arrested on 2 November 1999. He suffers from diabetes and has a kidney ailment.Osbert Mwenyi Likanyi – Accused No. 57[88]This accused did not testify in mitigation of sentence. He is 56 years old. He passed standard 8. He was arrested on 6 December 2002. His wife passed away in 2004. He is the father of four children. The first child was born in 1985 and the last child in 1997. The younger of the two children completed Grade 12. The accused struggled to maintain his children whilst he was in custody by making “plastic carriers” and used the money to pay for school fees. His sister who looked after the children passed away whilst he was in custody. The accused suffers from high blood pressure. Prior to independence he was a police officer, but retired during 1987. Thereafter he made a living as a peasant farmer. He was assaulted by the Security Forces after his arrest.[89]The involvement of the accused in the attempt to secede the Caprivi Region as found by the Court is the following: The accused was at Makanga in preparation for the attack on 2 August 1999. This Court found as follows:‘I have indicated that the evidence that he was part of the group of 92 was never challenged and must be accepted as uncontroverted evidence. The evidence of Nuwe supports the evidence of Mbulungu about an excursion in the bush with the accused and their attempts to evade the security forces. Further support that the accused was actively involved in the attempt to secede the Caprivi is to be found in Exhibit EGO 2 . . .’[90]The accused was part of a group which had the aim of launching a second attack in the Caprivi Region. The role the accused played in the attempt to secede the Caprivi Region was that of an attacker or soldier.The clients of Mr KachackaRodwell Sihela Mwanabwe – Accused No. 30[91]This accused did not testify in mitigation of sentence. The accused is 43 years old. He was arrested on 10 August 1999. He was unmarried. He passed standard 5 (Grade 7). His mother is 76 years old. Prior to his arrest he assisted his mother by ploughing the fields. He was one of 13 children of whom 5 had passed away during the time he had been in detention. His father died in 1986. His health has been negatively affected during the time of his incarceration.[92]In respect of the involvement of this accused in the attempt to secede the Caprivi Region this Court found as follows:‘This Court also accepts the evidence of George Sizuka (in the absence of any serious dispute) to the effect that the accused tried to recruit him to participate in the attempt to secede the Caprivi Region. I am satisfied that the evidence presented by the State proves beyond reasonable doubt that the accused was one of the conspirators in an attempt to secede the Caprivi Region from Namibia by violent means, that he participated in the attack . . .’[93]The role of the accused was that of an attacker or soldier.Albert Sekeni Mangalazi – Accused No. 55[94]This accused did not testify in mitigation of sentence. He is 53 years old. He was arrested on 18 July 2002. He was married and the father of two children. He lost his wife during the period of incarceration. His daughter dropped out of school in 2009 due to lack of parental guidance. He was the breadwinner in the family. One brother and two sisters died whilst he was in custody. He lost all 10 of his cattle. The accused did not have much formal education.[95]This Court found that the accused was part of the group of 92 who fled to Botswana after the death of Victor Falali. This group crossed the river Chobe with weapons of war. The accused was found after his arrest to be in possession of two AK 47 magazines with 60 rounds of live ammunition. The accused was part of a group of men at Sachona, one of the rebel bases, prior to the attack on 2 August 1999. The accused fulfilled the role of a soldier.Fabian Thomas Simiyasa – Accused No. 96[96]This accused did not testify in mitigation of sentence. The accused is 54 years old. He was arrested on 16 August 1999. He was employed by the Ministry of Agriculture, Rural and Water Supplies since 1981 as a senior handyman. He is married and the father of five children and has two grandchildren. His first wife passed away in 1994. Four of his children dropped out of school in Grade 12 and in Grade 10 because of lack of financial support. He remarried in 1997, and became the father of two more children. His wife divorced him on 8 January 2003. He has three younger married sisters who are unemployed and who are not supported by their husbands and he must assist in supporting them. He lost his cattle due to his incarceration. He suffers from a terminal decease.[97]This Court found that the accused prior to the attack on 2 August 1999 brought food to members of the CLA at Kalumba rebel camp. This accused was also found to be the driver of TATA truck which belongs to the Government of Namibia and which was used on 1 August 1999 to transport rebels to Makanga in preparation for the attacks from Makanga to pre-determined targets earmarked for attacks by the rebels. He was the main logistics provider.[98]The role of this accused in the attempt to secede the Caprivi Region was that of an active supporter.Kester Silemu Kabunga – accused no 102[99]This accused did not testify in mitigation of sentence. The accused is 59 years old. He was arrested on 23 August 1999. He is the father of five children. The eldest one is 32 years old and the youngest child 23 years. He has five grandchildren. He lost a brother who was the father of 10 children and these children are looking at his family for support. Five of these children are employed, two dropped out of school, one has enrolled at UNAM.[100]This court found that the evidence adduced by the State overwhelmingly prove that the accused was actively involved in transporting a large number of individuals to cross illegally into Botswana and that he made his vehicle (Toyota Hilux bakkie) available to transport rebels from Makanga on the evening prior to the attacks. He was therefore, like Fabian Simiyosa, an active supporter and a provider of the necessary logistics in order to achieve their aim of seceding the Caprivi Region.The clients of Mr MulutiRaphael Lyazwila Lifumbela – accused no 6[101]This accused did not testify in mitigation of sentence. He is 56 years old. The accused is married. His wife is unemployed. He is the father of four minor children. The accused attended school up to Grade 12. He was employed by the Ministry of Agriculture. He was arrested on 2nd August 1999. During his arrest he was severely assaulted and thereafter kept in solitary confinement at Grootfontein Military Base for three weeks. As a result of the assault his right ear drum was damaged. Both his parents are deceased. He was the sole breadwinner of his family. His detention has caused severe financial difficulties for his family. His children struggled to complete school due to financial constraints and lack of parental support.[102]In respect of the involvement of this accused regarding the attempted secession of the Caprivi Region, this court found that the accused was one of the four rebels arrested inside Mpacha military base on 2nd August 1999, shortly after the attack on the base. The accused was one of the attackers or solders on 2nd August 1999 of Mpacha military base.John Sikundeko Samboma – accused no 54[103]This accused did not testify in mitigation of sentence. He is 59 years old. He is married. His wife originates from Zambia. The accused attended school up to Grade 12 in Zambia. He is the father of four children of whom two are still minors. The children experienced difficulties in completing school due to financial constraints and lack of parental guidance. The accused was arrested on 2 November 1999 at Simjembela in Zambia and was thereafter heavily assaulted. After his arrest he was kept in solitary confinement for six months in Grootfontein military base.[104]The accused suffers from high blood pressure and he developed diabetes whilst in detention. He needs constant medication. Whilst in detention he lost his brothers, sisters and his father. His father died in June 2012. His mother is a very old and frail woman who depended upon him for support. He was a communal farmer. The accused was also an evangelist or lay preacher.[105]In respect of the involvement of the accused in the attempt to secede the Caprivi Region, this court found that the accused was instrumental in obtaining weapons of war with the aim to secede the Caprivi Region. He was the commander of the CLA and played a leading role in the propagation and execution of the secessionist idea. He was the leader of the group of Sachona and at Libulibu from which group Victor Falali escaped and was subsequently killed. The accused was the leader of the group of 92 who crossed into Botswana with weapons of war. The accused was not personally involved in the attack on 2nd August 1999.[106]It was submitted by Mr July that it was this accused who gave the order that Victor Falali be killed. It was further submitted that the accused was said to be a man of God, yet his involvement in the secession activities paints a glaringly different image one would expect a man of God to portray. I agree with the submission that the accused had an unwavering commitment to the military objective of the CLA and that he was prepared to kill and maime for the cause.The clients of Mr McNallyMatheus Munali Pangula – accused no 59[107]This accused did not testify in mitigation of sentence. He is 53 years old. The accused left secondary school when he was in Grade 10. He was employed as an auto electrician from 1984 until 1988. He joined the Namibian Police Force in May 1998 and was so employed until his arrest on 2 August 1999. He is the father of six children. The first child was born in October 1988 and the last one born in September 1997. His eldest child is employed and supports the rest of his siblings. He was suspended from the Namibian Police Force and did not receive a pension neither did he receive a salary. He is a first offender. His children live in the village with his 89 year old mother. She receives a pension. His family members make a living by tilling the land. He completed his Grade 12 whilst in detention and thereafter obtained a degree in Bible Studies. The accused is suffering from high blood pressure.[108]In respect of the involvement of the accused person in treasonous activities, the court found that the accused attended meetings where the topic of discussion was the secession of the Caprivi region. This accused was in the company of a group of armed rebels during the evening of the attack near Katima Mulilo police station. The accused offloaded some of the rebels at the NBC with a vehicle belonging to someone else. The NBC was also attacked that evening, so was the Police Station. The accused failed to report on duty the morning of 2 August 1999. The accused was aware that he was transporting rebels. He returned home that evening instead of alerting his colleagues of an imminent attack.[109]In respect of the involvement of the accused in the attempted secession his role can be described as that of an active supporter and one who transported rebels to targets of attack.Bernard Maungolo Jojo – accused no 98[110]The accused did not testify in mitigation of sentence. He is 74 years old. He is married and the father of 15 children of whom 14 children dropped out of school after his arrest on 5 August 1999. The accused suffers high blood pressure, gout and experience kidney “problems”. After his arrest he lost all his livestock. His last born child was born one month after his arrest and he has seen her only once. He is a first offender. He was the only breadwinner. His eldest son died in 2007. At the time of his arrest he was employed as a senior driver at the Ministry of Regional and Local Government.[111]In respect of the involvement of this accused in the cause to the secessionist this court found that he attended meetings where the issue of secession was discussed. The accused furthermore personally transported a number of individuals to the border with Botswana in order to advance the idea of seceeding the Caprivi from Namibia by violence. This accused was a supporter in respect of secessionist activities in the Caprivi region.Richard Simataa Mundia – accused no 104[112]This accused did not testify in mitigation of sentence. He was arrested on 26 August 1999. He is 61 years old. He is married and the father of 12 children. The first child was born in January 1979 and the last one in the year 2000. He was the only breadwinner until the day of his arrest. All his children dropped out of school due to financial constraints and due to his absence. The accused suffers from high blood pressure and diabetes. He left Namibia for Zambia in 1975 when he was in Standard 6 and received training as a mechanic in Lusaka. He was one of six mechanics who repaired vehicles which belonged to SWAPO. In 1981 he was employed as a labourer by the Government and in 1982 he was appointed as a driver in the Ministry of Education and was so employed until his arrest. He earned a salary of N$ 2175.00 p.m. The accused suffers from diabetes and high blood pressure.[113]The involvement of this accused in the attempt to secede the Caprivi region was that he influenced people to go to Botswana in pursuance of a conspiracy to secede the Caprivi from Namibia. The accused himself transported individuals to the Namibian/Botswana border in pursuance of this conspiracy. The accused further informed individuals prior to the attack, that the Caprivi would be “cut’. The accused had telephone numbers of Mishake Muyongo in his diary. The accused never informed the relevant authorities about plans afoot to secede the Caprivi region. The role of the accused in the secessionist activities can be described as that of an active supporter.Alfred Tawana Matengu – accused no 79[114]This accused did not testify in mitigation of sentence. He was born on 20 April 1949 and is 66 years old. He is married. He attended school in the early 1960’s and left school in Standard 6. He was arrested on 4 August 1999. At the time of his arrest, he was employed at the Katima Mulilo town council and earned a salary of N$6000,00 per month. The accused is the father of 19 children from different mothers. His own mother passed away in 2004 when he was in detention as well as his father and his brother. He developed diabetes whilst in detention. Upon his arrest he was the owner of 110 heads of cattle all of which he had lost all whilst in detention.[115]The involvement of the accused in respect of the attempt to secede the Caprivi region. The accused attended meetings at which the issue of secession was discussed. The accused was the Vice-President of the UDP, the party who established the CLA as its fighting wing. The accused was aware of the aims of the CLA and he failed to inform the authorities about it. The accused was second in command of the UDP.George Kasanga – accused no 77[116]This accused did not testify in mitigation of sentence. The accused is 67 years old. His wife died in 2013 whilst he was in detention. He is the father of seven children. He was arrested on 5 August 1999 and at that time he was employed at Ramdel Construction as an operator. He earned a salary of N$9,00 per hour. The accused had undergone back surgery on 10 February 2015. He is constantly in paid and is compelled to walk with crutches.[117]The accused never attended school. When young he was a cattle herder. He qualified as an operator of heavy machinery in 1987. He also assisted in the ploughing of fields. Upon his arrest he had 10 cattle which he sold in order to cover legal expenses. He is not in a position to work any longer. This accused was convicted of unlawfully leaving Namibia.Victor Masiye Matengu – accused no. 60[118]This accused did not testify in mitigation of sentence. He was arrested on 2 August 1999. He was born on 24 June 1968 and is 47 years old. He attended school up to Form 2. He was married but his wife deserted him three years after his arrest. His father is 73 years old and his mother 70 years. He has four siblings. He is the father of eight children from different women of whom three are majors. He has four grandchildren. All the children stay with his mother who supports them with her pension. When his wife deserted him who took all his belongings. When he was arrested he had 33 head of cattle, all lost now. He is suffering from high blood pressure. He was an ‘informal businessman’ and earned N$7000.00 per month.[119]In respect of his participation in the attempt to secede the Caprivi Region this Court found at par. 394 ‘that the accused had at the very least known about treasonous activities an failed to report same to the authorities at the time when any law abiding citizen would have done so’.The clients of Ms AggenbachPostrick Mowa Mwinga – accused no 23[120]This accused did not testify in mitigation of sentence. He is 60 years old. He attended school until Standard 8 (Grade 10). He joined the South African Police Force in the Caprivi in 1979. From 1994 he was an instructor at Houmoed Police College. In 1996 he was transferred to Walvis Bay Police College where he instructed ex-combatants in the methods of investigation. He returned to Katima Mulilo in 1998 where he was not allowed to work because it was alleged that he is related to Muyongo. He thereafter stayed at his village. He married on 14 March 1974. His wife divorced him in 2005. He is the father of six children. He has five grandchildren. He fled to Dukwe Regugee camp in March 1999. He returned from Botswana on 26 September 1999 because he was informed that the Security Forces would kill his family should he not return. On his return he discovered his sisters had been assaulted by members of the Police Force and members of the Security Forces. His mother was also assaulted. Six of his family members passed away whilst he was in detention. He himself was also assaulted upon his return.[121]The involvement of the accused in the attempt to secede the Caprivi was that he was one of the group of 92 who fled to Botswana with weapons of war. After the attack on 2 August 1999 the accused encouraged his co-rebels over the radio (NBC) who were still in the bush to report themselves to members of the Namibian Police Force. The accused can be described as a soldier.John Pause Lubilo – accused no 50[122]This accused did not testify in mitigation of sentence. He is 63 years old. He is illiterate. He was born in Sakubi area and never travelled to the rest of Namibia prior to 5 September 1999. He was never employed. He earned a living as a subsistent farmer. He speaks only the Totela language. He is a traditional leader. Before his arrest he was an induna and an induna of the traditional Khuta. He was married to three women. Two of his wives died whilst he was in detention. He is the father of seven children. He has 17 grandchildren. He was arrested on 30 August 1999 at Namutengu village in the Caprivi region and was assaulted by members of the Namibian Police Force. He had fled to Botswana due to harassment by the security forces. On 13 June 1999 he returned to Namibia by way of voluntary repatriation. He is a man of peace.[123]The involvement of the accused in the attempt to secede the Caprivi region was that he was one of the rebels who had attacked Mpacha military base and was during the attack wounded on his big toe. The accused can therefore be described as an attacker.Chris Puisano Ntaba – accused no. 7[124]This accused testified in mitigation of sentence. He testified that he was born on 6 May 1975 in Makanga area in the Caprivi Region and is 40 years old. He completed Grade 12 in 1995. After the completion of Grade 12 he stayed at the village. Due to lack of financial assistance he could not further his studies. He has two brothers and two sisters who are all unemployed. His mother is 85 years old. He was 24 years old when he was arrested and was unmarried. He has no children. He was arrested on 2 August 1999 at Lambayi location in Katima Mulilo and taken to Mpacha military base where he was assaulted with a sjambok by members of the NDF. He received no food and water and the next day was transported to Grootfontein military base where he was thrown in a single cell and interrogated. On 22 August 1999 he was taken to court for the first time.[125]On 11 November 1998 he went to Botswana due to harassment by security forces. He returned to Namibia through the process of repatriation. He testified that his legal practitioner withdrew in 2005 because he gave instructions to challenge the jurisdiction of the Namibian Government over the Caprivi Region. The accused testified that he gave such instructions because he believes that the Caprivi is not part of Namibia and the Government of Namibia is illegally in the Caprivi Region. The accused testified as follows: ‘My history tells me so and Proclamation 101 of 1985 for South West Africa that forms the Government of National Unity was made not applicable to the Caprivi, my Lord, and Act 10 of 1999 titled, ‘The application of laws to the Eastern Caprivi Zipfel”, shows me that the Namibia Government knows that Caprivi is not part of Namibia, My Lord, and colonial boundaries, My Lord, remains valid even when a country gets its independence. South West Africa starts on 21 degrees westwards and from 21 degrees eastwards is Caprivi, My Lord, and this Court is not a Court of politics. So treason is committed within the boundaries of a country, if it happens beyond that is not treason, My Lord.’[126]The accused testified that he was not a member of any political party and that his priority if he gets home is to get his family together and get married. During cross-examination by Mr July the accused testified that he did not participate in the trial because he does not recognize the jurisdiction of this Court over himself. The accused denied that he has not remorse. He testified that he is a Caprivian and a Namibian ‘by force’. The witness testified that the Chris Ntaba who was arrested on the morning of 2 August 1999 was not him.[127]The accused was ambivalent when asked whether he agreed with the views Muyongo expressed during an interview shortly after the attack on 2 August 1999, and Muyongo’s views expressed in a statement dated August 2015. In this regard the accused first stated that he does not agree with the sentiments expressed by Muyongo, but that he agrees that the ‘fallen heroes and heroines’ deserved to be remembered for their contribution and sacrifice so that they (i.e. those left behind) could live and see the next day and fought ahead in their journey to conquer the enemy. [128]He agreed that ‘Swapo’s occupation of the Caprivi Strip shall soon come to an end and it is just a matter of time, nonetheless we shall never waiver in our quest for freedom’. The accused agreed with the following said by Muyongo:‘We are our own liberators, the struggle continues and thus Caprivians should never loose hope because there is light at the end of the tunnel.’ [129]When it was put to him that Muyongo believes that the attacks on Caprivi on 2 August 1999 was justified and what his comment was, the accused stated that he had no comment. The accused however testified that he does not believe in violence. When asked whether he has ‘any regrets for being involved in this case’, the accused replied that he was not involved. In respect of the involvement of this accused in the attempt to secede the Caprivi Region this Court found that the accused was one of the four rebels captured on the morning of 2 August 1999 inside Mpacha military base. He was one of the attackers.Saviour Ndala Tutalife – accused no. 24[130]This accused testified in mitigation of sentence. The accused was born on 8 August 1964. At the time of his arrest on 9 August 1999, he was married. His wife divorced him whilst he was in detention. He is the father of three daughters of whom the eldest is 28 years and the youngest 19 years old. He has five grandchildren, all born whilst he was in detention. He received visits only from the youngest daughter. After his return from Botswana his brother handed him over to the Khuta. He was taken to Katima Mulilo Police station by a member of the Special Field Force where he was subsequently beaten with a sjambok and also tortured. The accused testified how he was transferred from one detention centre to another until he eventually found himself at Houmoed Police College. Here in an effort to persuade him to become an state witness the late Chief Inspector Abraham Maasdorp and Sergeant Popyenama executed 10 San individuals with a 9mm pistol. [131]The accused advanced up to Grade 12. He was at the some stage employed at Santila in the Caprivi region as a horse rider and tour guide. The accused left for Botswana due to harassment during September/October 1998 by members of NDF. The accused testified that he was never a member of a political party and was never involved in politics. He was 35 years old when arrested. He is now 51 years old. He does not believe in violence. He testified that he wants the Caprivi region to become independent, that an agreement was signed on 5 November 1964 between Muyongo and Dr Sam Nujoma about a “merger”, that they are people who want self-determination like other nations; that Caprivi is a territory on its own.[132]During cross-examination by Mr July, the accused was asked what the purpose was of him testifying, to which the accused replied: ‘I decided to put the case of Caprivi in the face of this Honourable Court, from the beginning no one was allowed . . . to challenge the jurisdiction of the Namibian Government over Caprivi . . . that is why I decided I should go and take a stand and testify . . .’ When it was put to the accused that 70 – 80 % of the testimony he gave did not come close to be considered as mitigation factors the accused replied that that is for this court to decide – he wanted to place before the court the ‘true historical picture of the Caprivi . . .’[133]The accused agreed that he and 31 other accused persons at one stage deliberately absented themselves from the court proceedings. The accused testified that he disagrees with the view expressed by Muyongo during the interview shortly after the attack. The accused testified that he has no remorse for he did nothing wrong. The accused denied that he was deployed to attack Katonyana Special Field Force Base on 2 August 1999. The accused denied that he was at Makanga on the evening prior to the attack. He denied that he was one of the attackers. [134]The accused testified that history shows that Caprivi region is not part of Namibia and that only a referendum can solve the dispute between the Caprivian people and the Namibian people. The accused denied that he is in court, because of the attack on the Caprivi region on 2 August 1999 where he and others tried to change the constitutional order of Namibia by violent means.[135]The accused testified that he was not convicted of launching a war on the State of Namibia, but convicted of his belief and was prepared to ‘cut off’ his head because of his belief. In respect of the involvement of the accused in the attempt to secede the Caprivi region this accused admitted to his brother that he joined the CLA, that he was at Katounyana during the attack and that he managed to escape from Katounyana. An AK 47 rifle, a magazine, a camouflaged brown cloth and a rug was found in the courtyard of this accused person.[136]The accused was an attacker of the Katounyana Special Field Force base. He was a soldier in the CLA.Martin Siano Tubaundule –accused no 71[137]This witness testified in mitigation of sentence. The accused is 58 years old. He is married and the father of six children. He has three grandchildren who he used to see when they visited him in prison. The accused is the holder of Secondary Education Diploma from Vista University in South Africa and the holder of a Diploma in Managing Tourism through Southern Business School in South Africa.[138]He was a teacher by profession. Prior to his arrest he was the Principle at Nyashuru Primary School (since 1996). Prior to this he was appointed at various schools in the region in the capacity of teacher and principal. The accused testified that in his village 14 people passed away whilst he was in custody, only his ‘little father’ of 97 years is left. He testified that he was not involved in politics. He left for Botswana on 16 December 1998 because of harassment by members of the security forces. He drove with his vehicle and subsequently met Mishake Muyongo at Kagison Centre near Gaberone thereafter he, together with others left for Zambia during June 1999. He was in the company of Thaddeus Ndala, Steven Mamili, Oscar Putheo, Charles Mushakwa and the late Moses Mushwena. On 7 August 1999 they were handed over to the Namibian Police by the Zambian Police Force members. The accused narrated in detail subsequent events. He testified that he is a Caprivian.[139]During cross-examination by Mr July, the accused testified that he accepts his convictions, but does not agree with those convictions. The accused was confronted with minutes of a UDP meeting in Botswana where he was present which resolved to attack Katima Mulilo in order to achieve a political objective. The accused stated repeatedly that he was not going to answer the questions and intimated an appeal to the Supreme Court. The accused was confronted with another document (Ex EGJ 1) of which he was the author indicating that on 16th December 1998 he left the Caprivi to join the armed struggle and to join the Caprivi Liberation Army. The accused refused to answer the question. The accused testified that the Caprivi region is not part of Namibia. The accused was confronted with a picture on which he is depicted holding the flag of UDP, he replied that he had not previously seen the flag.[140]It was put to the accused that he was unrepentant for trying to secede the Caprivi Region. The accused replied that Caprivi is not part of Namibia and he is not unrepentant. In reply to a statement put to the accused that he and others in the meetings and those who executed their resolution have blood on their hands, the accused stated that he was in Luzaka, Zamibia, about 1500 km away.[141]In respect of the involvement of this accused in the attempt to secede the Caprivi from the rest of Namibia the undisputed evidence was that the accused transported individuals to the Namibia / Botswana border in a motor vehicle, he attended a meeting addressed by Mishake Muyongo where Muyongo announced that he had resigned from Parliament and that he was going to form his ‘own army for Caprivi’. In one of his diaries the accused clearly propagated the fight for the independence of Caprivi and that the ‘key for the struggle is the armed struggle.’ The accused can be described as a very active supporter.Thaddeus Siyoka Ndala, Accused No.70[142]This accused testified in mitigation sentence. He was born on 3 February 1959. He is married and the father of four children. He has six grandchildren. The grandchildren were born whilst he was in detention. His mother died in 1976 and his father in 2004 whilst he was in detention in Grootfontein Prison. His grandmother died in February 1999 whilst he was in Botswana. His brother also passed away. The accused described himself as a ‘very poor peasant farmer’. He attended secondary school but did not complete Grade 12, only Grade 11.[143]He fled to Botswana because of threats by the Security Police of Namibia. These threats related to an enquiry made by himself to the then Prime Minister of Namibia, the Honourable Hage Geingob about R 36 million donated by the South African Government. The accused confirmed that he was with accused person Tubaundule at Kagison Centre and from there left for Zambia. He testified that he is not a violent man and that he wants a solution in a peaceful manner.[144]During cross-examination when it was put to him that the Steven Mamili group of which he was part of in Zambia constituted the leadership of the UDP the accused replied that it was not offence to be a member of a party. The accused testified, in response to a question whether he recognised this Court’s authority over the Zambezi Region that he believes that his country is oppressed by the Namibian Government. The accused admitted that he is a member of the UDP.[145]To the question whether he agrees with the sentiments expressed by Muyongo in the interview after the attack, the accused evaded the question on a number of occasions. The accused in reply to a question whether he had been appointed as the commander of the CLA by Mishake Muyongo answered:‘That will be dealt with at the Supreme Court, at the appeal.’[146]When it was stated that he was present at a meeting held at Kagison (Botswana) where certain resolutions were taken, the accused replied that it was an issue for the Supreme Court. In reply to a statement that the accused and others who were at the meeting on 1 January 1999 have blood on their hands for the deaths caused by the CLA on 2 August 1999, the accused replied that Mr July was committing a very serious sin before God because he is putting things, crimes, that the accused has never done. The accused testified that should the appeal to the Supreme Court of Namibia be unsuccessful they would take the matter to the International Court of Justice (ICJ).[147]In respect of the involvement of this accused in the attempt to secede the Caprivi Region this Court found that he accused provided food to the rebels at rebel camps which makes the accused a supporter. The accused was one of the individuals who fled with Muyongo on 28 October 1999 from Namibia to Botswana.[148]The accused was present at a meeting on 1 January 1999 at Kagison where the UDP amongst others resolved that the year 1999 should be a year of action and where an armed struggle was confirmed as the means of achieving their aim, namely, to secede the Caprivi Region through violence. In this regard the accused also fulfilled the role of a leader.The interests of society [149]The interests of society may, depending on the circumstances, mitigate a sentence and may also aggravate a sentence, in the latter instance e.g. when society needs to be protected against a convicted person. The interests of the society (of community) refers to the ‘natural indignation’ of members of the community in respect of the commission of a specific crime and their expectations in respect of the sentence, and it also refers to the fact that the sentence imposed should serve society through the aims of punishment, namely prevention, deterrence, rehabilitation and retribution. In Karg, Schreiner JA cautioned that ‘righteous anger should not becloud judgment’. The challenge is to impose an appropriate sentence, one which is not too lenient and not too severe.[150]In S v Ngunovandu this Court stated the following:‘The Court has to determine what an appropriate sentence is for the accused. In assessing this, it has to reconcile the often competing interests of the accused and of the community. It has to evaluate the gravity of the offence and ensure that the sanction it imposes speaks of abhorrence of the crime but is not so harsh as to unfairly penalize and destroy the offender.’ [151]In respect of the determination who the community is the following was said in S v De Kock by Van der Merwe J:‘In considering the interests and feelings of the community, the Court held that it was necessary firstly to establish who the community was. Different groups within society differed sharply in their views of the accused’s actions and of the sentences to be imposed. However, the views of society could not be sought in those who stood at its extremes. It was necessary to consider the views of the informed, reasonable, law abiding and balanced members of the community, who would be prepared to take into account all the factors relevant to the imposition of an appropriate sentence. Such people respected the courts, expected the courts to view crime with due seriousness and to make their lives safe and peaceful, so that they could live together in harmony. It was the mouthpiece of this part of the community that the Court was required to impose a suitable sentence.’ [152]Harms JA in S v Mhlakaza and others stated that the ‘object of sentencing is not to satisfy public opinion but to serve public interest’ and cautioned that a ‘sentencing policy that caters predominantly or exclusively for public opinion is inherently flawed. It remains the court’s duty to impose fearlessly an appropriate and fair sentence even if the sentence does not satisfy the public’.[153]And continued at 519 d as follows:‘Given the current levels of violence and serious crimes in the country, it seems proper that, in sentencing especially such crimes, the emphasis should be on retribution and deterrence.’[154]In view of the particular circumstances of this case I am of the view that this is the appropriate approach to be adopted, namely to emphasize retribution and deterrence. Harms JA said in S v Vilakazi regarding the factor of personal circumstances of an accused where the accused has been convicted of a serious offence:‘ln cases of serious crime the personal circumstances of the offender, by themselves will necessarily recede into the background. Once it becomes clear that the crime is deserving of a substantial period of imprisonment the questions whether the accused is married or single, whether he has two or three children, whether or not he is in employment, are in themselves largely immaterial to what that period should be and those seem to me the kind of “flimsy” grounds that Malgas said should be avoided. But they are nonetheless relevant in another aspect. A material consideration is whether the accused can be expected to offend again. While that can never be confidently predicted his or her circumstances might assist in making at least some assessment.’[155]Remorse or lack thereof is a factor that is considered, together with other factors mentioned supra, prior to imposing a particular sentence upon an accused person. Van Niekerk J endorsed what was said in S v Seegers in respect of remorse with which I fully agree: ‘Remorse as an indication that the offence will not be committed again is, obviously an important consideration in suitable cases, when the deterrent effect of a sentence on the accused is adjudicated. But in order to be a valid consideration pentinence must be sincere and the accused must take the court fully into his confidence. Unless that happens the genuineness of the contrition alleged to exist cannot be determined.”[156]In S v Mushisi Liebenberg J stated:‘While I do not doubt that the accused at this stage does have feelings of remorse, this factor unfortunately loses some of its weight due to his unwillingness to accept legal and moral responsibility for his misdeeds.’[157]The determination of whether an accused is sincerely remorseful and not simply feels sorry for himself is a factual one often determined from the actions of the accused rather than what is said in court.[158]I shall later deal with this aspect in respect of the accused persons before court.[159]The accused persons were convicted of several offences and must be sentenced in respect of each such offence. Some defence counsel urged this court to impose a ‘globular’ sentence i.e. to take the counts together for purpose of sentence. This is usually done in order to ameliorate the cumulative effect of sentences imposed for multiple convictions.[160]In S v Visagie this court said the following:‘I support the view that such a practice (for the reason given supra) is undesirable, and endorse the idea that imposing separate punishments for separate offences conduces to clearer thinking in determining an appropriate sentence. The cumulative effect of sentences may be ameliorated by ordering the running together of sentences or part of sentences.’[161]I have indicated (supra) that in respect of the participation of the accused persons in the attempt to secede the Caprivi Region from the rest of Namibia, that they fulfilled different roles. There are accused persons who committed the crime of high treason by being aware of treasonous activities but failed to report same to the relevant authorities, some accused persons were supporters, some were the soldiers or attackers, and some fulfilled the roles as leaders. In my view, because of their diverse roles, their respective moral blameworthiness would broadly accordingly also differ.[162]Victor Masiye Matengu and Alfred Lupalezwi Siyata found to have known about treasons activities and failed to report same to the relevant authorities. The following accused persons were found to be active supporters:Bollen Mwilima Mwilima Charles Nyambe Mainga Mathews Muyandulwa Sasele Fabian Thomas Simiyasa Kester Silemu Kabunga Mathews Mundi Pangula Bernard Maungolo Jojo Richard Simataa Mundia Martin Siano Tubaundule [163]The following accused persons were found to be soldiers on attackers:Aggrey Kayabu Makendano Moses Chicho Kayoka Richard Libano Misuha Charles Mafenyeko Mushakwa Chika Adour Mutalife Kingsley Mwiya Musheba Osbert Mwenyi Likanyi Rodwell Sihela Mwanabwe Albert Sekeni Mangalazi Rafael Lyazwila Lifumbela Postrick Mowa Mwinga John Pause Lubilo Chris Puisano Ntaba Saviour Ndala Tutalife [164]The following accused persons were found to be in leadership positions:Bennet Kacenge Mutuso Geoffrey Kupuzo Mwilima John Sikundeko Samboma Alfred Tawana MatenguThaddeus Siyoka Ndala [165]There are three accused persons with previous convictions (not relevant for this matter) and for the purpose of this case all the accused persons are regarded as first offenders. Another mitigating factor is that the majority of the accused persons have been in detention for the past 16 years (some for 13 years). I am not aware of any criminal trial in the recent history of this, or in neighbouring jurisdictions, where accused persons had been in custody for such a long period of time awaiting the conclusion of their trial. It is unprecedented.[166]An aggravating factor in respect of the crime of high treason is the fact that eight human beings, all unarmed and defenseless, lost their lives during the attack on 2 August 1999. Another factor that is taken into account against the accused person is that not one of them has shown any form of remorse in the sense as described in Ganes and Mushisi (supra).[167]The four accused persons who testified in mitigation of sentence instead attempted to justify their ideology or political views that the Caprivi Region (now Zambezi Region) does not form part of the territory of the independent Republic of Namibia and by inference tried to justify the events of 2 August 1999.[168]This Court was referred to a number of decided cases in other jurisdictions in respect of sentences imposed for the crime of high treason. There is no similar case approximating the magnitude of the events which unfolded on 2 August 1999. The Kleynhans matter decided shortly after the attainment of independence pales in comparison in respect of the gravity and extent of the criminal endeavour engaged in by the accused persons in this case.[169]I cannot find any justification for the crimes of high treason, murder, or attempted murder committed by the accused persons. The submissions by defence counsel in order to explain the events on 2 August 1999, include, the marginalization of the inhabitants of the Caprivi Region by the Government of Namibia, discrimination against the inhabitants of the region, the perceived uncertainty in respect of the status of the Caprivi Region in the constitutional arrangement, mob psychology, an alleged agreement between the first President of the Republic of Namibia, Dr Sam Nujoma and Mishake Muyongo (the so-called Lusaka agreement of 1964), that the Government of Namibia had been forewarned about an impending attack but was negligent, in that nothing was done in order to prevent it, and that in terms of the ‘castle’ principle the events of 2 August 1999 could be justified since the accused persons being inhabitants of the region (their castle being oppressed, took appropriate action in order to defend the region against an oppressor, all these submissions under-emphasized the fact that Mishake Muyongo signed the Constitution of the Republic of Namibia as president of the DTA and by his signature endorsed the unitary State embodied in of the Constitution of Namibia to the exclusion of the so-called Lusaka agreement.[170]Secondly, it is common cause that there was prior to the attack on 2 August 1999 no public discourse about the possibility of an autonomous Caprivi Region. There is a point of view that people may legitimately resort to violence in order to achieve certain political objectives where all peaceful and democratic means have been exhausted. It did not happen in this case. On the contrary the reverse is true. Violence was resorted to first and foremost and was used as a deliberate strategy, preceding possible negotiations.[171]The State led evidence to the effect that there is an uneasiness in certain circles of government which has a consequence the fact that a police unit is still monitoring the situation in the Zambezi Region. It is clear from the testimony of the four accused persons who testified in mitigation of sentence, at least as far as they are concerned, that the hope of achieving independence for the region now known as the Zambezi region has not faded and that every effort would be resorted to in order to achieve their political objectives.[172]As discussed hereinbefore in considering an appropriate sentence I considered the triad enunciated in Zinn. The fact that the accused persons have been convicted of very serious offences is undisputed and in my view deserving of a substantial period of imprisonment. In these circumstances as stated in Vilakazi the personal circumstances of the persons will necessarily recede into the background and the abhorrence of the crimes and interest of society emphasized.[173]The aims of punishment were considered and as I stated earlier those of retribution and deterrence would be emphasized in the sentences this Court is about to impose. I have due regard to the fact that mercy forms an integral part in considering an appropriate sentence. [174]In respect of the crimes of murder and attempted murder the form of dolus namely dolus eventualis is taken into account. In this regard this Court said the following at par 1111 of the judgment:‘[1111]The record is permeated with words and phrases used during meetings, in documents, and during the testimonies of State witnesses namely: ‘cutting the region’, ‘fire-arms’, ‘weapons of war’, fighting with firearms’, ‘liberation struggle’, ‘secession’, ‘military wing’, ‘army’, ‘CLA/CLM’, and by ‘violent means’. These words and phrases are the antithesis of the words: negotiation, democratic means and peacefully. In my view, the co-conspirators, and those who became aware of the aim to secede the Caprivi region by violent means and failed to report it to the authorities had foreseen that violence would be inevitable and that it would invariably result in the killing of human beings and associated themselves with such an eventuality.’ [175]An important mitigating factor to be taken into account is the unprecedented long period the accused had been detained awaiting finalisation of this trial. The moral blameworthiness of each accused person will be reflected in the sentences imposed upon them. In this regard cognizance is being taken of the fact that the offences were all committed in order to achieve certain political objectives. I have mentioned the roles each accused person played in the attempt to secede the region known as the Caprivi region at that stage.[176]Although a court may be entitled to take various counts together for the purpose of sentence in certain circumstances and impose one sentence or a globular sentence, I personally have a preference, and for the reasons mentioned in Visagie and Tjikotoke, to shy away from the globular sentences, but shall impose a punishment in respect of each crime committed by an accused person.[177]A factor to be considered and not mentioned previously is the age of an accused person. There is one accused person Chika Adour Mutalife who was 19 years old when he was arrested. Although there is no evidence presented that he committed the crimes, influenced by much more matured accused persons, the fact of his youthfulness at that stage should receive some recognition. Similarly, there is an accused person Bernard Maungolo Jojo before this Court who is presently 74 years old. This accused person was a matured adult at the time of the commission of the offences, but his age at this stage must be a factor to be taken into account.[178]This Court takes into account in respect of the crime of high treason that it did not occur on the spur of the moment but was planned and discussed for years prior to the eventual attack on 2 August 1999. During this time, the supporters, the attackers, and the leaders had ample opportunity to reconsider their continued participation in this common unlawful activities and could have withdrawn from any future participation. This never happened. It appears to me instead that there was a dogged determination to achieve their main objective namely to overthrow the Government of the Republic of Namibia within the then Caprivi Region.[179]What is a common and disturbing feature heard in evidence during this trial is the conduct of the Namibian security forces in this aftermath of the attack on 2 August 1999 in respect of which this Court must express its disapproval of in the strongest possible terms, namely the widespread and indiscriminate use of excessive force and torture on both potential state witnesses and those suspected to have been involved in the attacks on 2 August 1999.[180]In my view there can in a democratic and civilized society, as ours, in which the rule of law is a primary and fundamental principle governing the lives and conduct of all members of society, and where it should be manifested especially in the conduct of our law enforcement agencies, no instances where such acts of extra curial punishments, can be countenanced which are irreconcilable with the fundamental human rights and freedoms espoused and guaranteed by the Namibia Constitution.[181]I shall now deal with the accused persons referred to in this judgment as the leaders, some of who were political leaders, some military leaders, who in my view, share the same and high degree of culpability or moral blameworthiness because the leaders set the tone and lead by example for rank and file to follow.[182]Geoffrey Mwilima and Alfred Tawana Matengu were in my view the political leaders (in the absence of Mishake Muyongo), whereas Bennet Mutuso, John Samboma and Thaddeus Ndala were the military leaders, Samboma being the commander of the CLA and the sentences to be imposed will reflect their degree of culpability. [183]The soldiers or attackers all share a high degree of culpability (though less than that of the leaders) because without their participation the achievement of the political objectives would have been an illusion. Then there are the supporters who actively assisted by providing the necessary logistics to the attackers or soldiers in their unlawful criminal activities.[184]There were also some who were aware of treasonous activities but remained silent, who in my view should be considered as the least morally blameworthy within the context of the commission of these serious crimes.Sentence[185]I am of the view that the following sentences are appropriate sentences regarding the respective accused persons with due regard to their roles and the circumstances of this particular case: In respect of (the leaders): Bennet Kacenge Matuso (accused no 69), Geoffrey Kupuzo Mwilima (accused no. 68), John Sikundeko Samboma (accused no. 54), Alfred Tawana Matengu (accused no. 79), and Thaddeus Siyoka Ndala (accused no. 70) for their conviction in respect of the crime of high treason each accused is sentenced to a period of 35 years imprisonment of which a period of 17 years imprisonment if suspended for 5 years on condition the accused is not convicted of the crime of high treason committed during the period of suspension.[186]In respect of each count of murder, each accused is sentenced to 30 years imprisonment of which a period of 12 years imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of the crime of murder committed during the period of suspension. In respect of each of the counts of attempted murder each accused is sentenced to 10 years imprisonment.[187]This Court orders that the unsuspended periods of imprisonment imposed in respect of the murder counts and the periods of imprisonment imposed in respect of the attempted murder counts should run concurrently with the unsuspended period of imprisonment imposed in respect of the count of high treason.[188]In respect of: (the attackers/soldiers) Aggrey Kayabu Makendano Moses Chicho Kayoka Richard Libano Misuha Charles Mafenyeko Mushakwa Chika Adour Mutalife Kingsley Mwiya Musheba Osbert Mwenyi Likanyi Rodwell Sihela Mwanabwe Albert Sekeni Mangalazi Rafael Lyazwila Lifumbela Postrick Mowa Mwinga John Pause Lubilo Chris Puisano Ntaba Saviour Ndala Tutalife and in respect of the conviction of high treason each accused is sentenced to 35 years imprisonment of which a period of 20 years imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of the crime of high treason committed during the period of suspension.[189]In respect of each of the count of murder each accused is sentenced to 30 years imprisonment of which a period of 15 years imprisonment is suspended for 5 years on condition that the accused is not convicted of the crime of murder committed during the period of suspension.[190]In respect of each of attempted murder each accused is sentenced to 10 years imprisonment.[191]This Court orders that the unsuspended periods of imprisonment imposed in respect of the counts of murder and the periods of imprisonment imposed in respect of the attempted murder counts should run concurrently with the unsuspended period of imprisonment imposed in respect of the count of high treason.[192]In respect of: (the supporters)Bollen Mwilima Mwilima Charles Nyambe Mainga Mathews Muyandulwa Sasele Fabian Thomas Simiyasa Kester Silemu Kabunga Mathews Mundi Pangula Bernard Maungolo Jojo Richard Simataa Mundia Martin Siano Tubaundule [193]Chika Adour Mutalife (attacker/soldier) was described by this Court as an attacker or soldier on 2 August 1999 however this Court in the exercise of its discretion has decided to deal with him under this section due to his youthfulness at the time of his arrest. In respect of the conviction of high treason each accused is sentenced to 30 years imprisonment of which a period of 20 years imprisonment are suspended for a period of 5 years on condition that the accused is not convicted of the crime of high treason committed during the period of suspension.[194]In respect of the counts of murder each accused is sentenced to 25 years of which a period of 15 years imprisonment is suspended for a period of 5 years on condition the accused is not convicted of the crime of murder committed during the period of suspension.[195]In respect of the counts of the attempted murder each accused is sentenced to 8 years imprisonment.[196]This Court orders that the unsuspended periods of imprisonment imposed in respect of the counts of murder and the periods of imprisonment imposed in respect of the crimes of attempted murder should run concurrently with the unsuspended period of imprisonment imposed in respect of the count of high treason.[197]In respect of: (the light-lipped / taciturn)Victor Masiye Matengu Alfred Lupalezwi Siyata; and Bernard Maungolo Jojo (supporter)[198]Bernard Maungolo Jojo (supporter) was found by this Court to be a supporter in the attempt to secede the Caprivi Region. However I have in the exercise of my discretion decided to deal with him under this category due to his advance age in years.[199]In respect of the conviction of high treason each accused person is sentenced to 20 years imprisonment of which a period of 17 years imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of the crime of high treason committed during the period of suspension.[200]In respect of the counts of murder each accused is sentenced to 20 years imprisonment of which a period of 17 years imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of the crime of murder committed during the period of suspension.[201]In respect of the counts of attempted murder each accused is sentenced to 8 years imprisonment of which a period of 5 years imprisonment is suspended for a period of 5 years on condition that the accused is not convicted of the crime of attempted murder committed during the period of suspension. [202]This Court order that the unsuspended periods of imprisonment imposed in respect of the counts of murder and attempted murder should run concurrently with the unsuspended period of imprisonment imposed in respect of the count of high treason.[203]George Kasana (accused no. 77) was convicted of count 272 ie contravening s. 2(c) read with section 8(1) of the Departure from the Union Regulation Amendment Act, 34 of 1955 as amended by the Departure from Namibia regulation Act, 4 of 1993 (illegal exit from Namibia).[204]Oscar Kashalula Muyuka Puteho (accused 49) was convicted of count 273 similar to count 272 (Illegal exit from Namibia).[205]George Masialeti Lisheo (accused 15) was convicted of count 274 i.e. contravening s. 6(1) of the Immigration Control Act 7 of 1993 (Illegal entry into Namibia).[206]In respect of:George Kasanga (accused 77); Oscar Muyuka Puteho (accused 49) each accused is sentenced to 6 months imprisonment which 6 months imprisonment is suspended in toto for a period of 3 years on condition that the accused is not convicted of contravening s. 2 (c)1 read with s. 8(1)(a) of the Departure from the Union regulation Amendment Act, 34 of 1955 as amended by the Departure from Namibia regulation Act, 4 of 1993 committed during the period of suspension.George Masialeti Liseho (accused 15) is sentenced to 6 months imprisonment which 6 months imprisonment is suspended in toto for a period of 3 years on condition that the accused is not convicted of contravening s. 6(1) of the Immigration Control Act, 7 of 1993 committed during the period of suspension.---------------------------------E P B HOFFJudgeAPPEARANCESSTATE: T July (with him A Adams)Office of the Prosecutor-General, WindhoekDEFENCE:P Kauta (Accused no: 65, 80, 84, 87, 90, 93, 95, 100 & 101); P McNally (Accused no: 97, 98, 60, 91, 79, 64, 61, 58, 59, 77, 104 & 67);V Kachaka (Accused no: 115; 30, 102; 96; 55;)J Neves (Accused no:75; 37;68; 2; 9);G Nyoni (Accused no: 103; 57; 44; 49; 88; 89);J Samukange (Accused no:,69; 72; 73)C Dube (Accused no: 53; 48; 47)C Kavendjii (Accused no: 15; 11; 121)P Muluti (Accused no 17; 6; 8; 54) I Agenbach (Accused no: 3; 5; 7; 16; 18; 23; 24; 26; 31; 50; 63; 70; 71; 120; 122)Instructed by Directorate of Legal Aid, Windhoek ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download