The court held that the so-called taking prisoner, detaining and removing of the 12 accused from Zambia and Botswana to Namibia, was in essence abduction, but not of the kind which occurred in the Ebrahim case. Nevertheless, such action without consent could justifiably be described as having been done “forcibly”, because it was done without consent and obviously made possible by the apparent authority and power of the police and military officials. An appropriate label for such action was “official abduction”. It also did not matter whether the label of the acts of the said officials was “abduction”, “official abduction”, “disguised extradition” or “voluntary” or “informal rendition”.
The court found that there was no act of lawlessness committed by either Zambia or Botswana with the knowledge or concurrence of Namibia such as to disentitle Namibia from assuming jurisdiction as a receiving state.
The fugitives were collected from Zambia and Botswana without any form of collusion or deception by the agents of Namibia but explicitly at the request of the two foreign countries. Even if it were found that Zambia and Botswana in doing so acted in breach of their own municipal laws that was not a matter for the concern of Namibia. The court therefore concluded that there was no justification for holding that Namibia’s hands were not clean on account of the circumstances.
International law; jurisdiction; extradition; valid and lawful extradition; disguised extradition
In the instant case, the appellants appealed against the trial court’s judgment in favour of the thirteen respondents on the grounds that the court did not have jurisdiction to try them on account that the court was prevented by the doctrine of act of state and the International Law regarding sovereignty to enquire into the illegalities committed by Zambia and Botswana and consequently there was no impediment for the Namibian Court to exercise jurisdiction.
The respondents claimed that they were abducted by the Namibian authorities and unlawfully surrendered to Namibia.
The fugitives were collected from Zambia and Botswana without any form of collusion or deception by the agents of Namibia but explicitly at the request of the two foreign countries. Even if it were found that Zambia and Botswana in doing so acted in breach of their own municipal laws that was not a matter for the concern of Namibia. Therefore, there is no justification for holding that Namibia’s hands were not clean on account of the circumstances. Consequently, the appeal was allowed and ordered that the matter be returned to the trial court to continue the trial.
On the one hand the principle arising out of the law of extradition under which the officers of the Crown could not and must not surrender a fugitive criminal to another country at its request except in accordance with the Extradition Acts duly fulfilled; on the other hand the principle arising out of law of deportation, under which the Secretary of State could deport an alien and put him on board a ship or aircraft bound for his own country if he considered it conducive to the public good that that should be done.