S v Mushwena and Others (SA 4 of 2004) [2004] NASC 2 (21 July 2004)

S v Mushwena and Others (SA 4 of 2004) [2004] NASC 2 (21 July 2004)

The majority of the Supreme Court found that, except for Charles Kalipa Samboma, the respondents were brought before the Namibian court through a process that bypassed mandatory extradition and deportation procedures, with active involvement or acquiescence of Namibian authorities, resulting in a breach of the rule...

Source-derived case information.

Citation
[2004] NASC 2
Parties
Appellant: The State; 1st Respondent: Moses Limbo Mushwena; 2nd Respondent: Fred Maemelo Ziezo; 3rd Respondent: Andreas Mulupa; 4th Respondent: Richard Libano Misuha; 5th Respondent: Oscar Muyuka Kushaluka Puteho; 6th Respondent: Richard John Samati; 7th Respondent: John Sikundeko Samboma; 8th Respondent: Osbert Mwenyi Likanyi; 9th Respondent: Thadeus Siyoka Ndala; 10th Respondent: Martin Siyano Tubaundule; 11th Respondent: Oscar Nyambe Puteho; 12th Respondent: Charles Mafenyaho Mushakwa; 13th Respondent: Charles Kalipa Samboma
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
21 July 2004
Case Number
SA 4 of 2004
Procedural Posture
Criminal Appeal / Supreme Court Judgment on Appeal From High Court Ruling on Jurisdiction and Release Order
Outcome
Appeal allowed in part; jurisdiction declined over twelve respondents, but retained over Charles Kalipa Samboma.
Legal Topics
Extradition, Deportation, Jurisdiction, Abduction, Due Process, Rule of Law, Refugee Law, Abuse of Process
Source Language
english
Criminal Law International Law Human Rights Law Constitutional Law Extradition Deportation Jurisdiction Abduction +4 more

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Parties

The State

Appellant

Moses Limbo Mushwena

1st Respondent

Fred Maemelo Ziezo

2nd Respondent

Andreas Mulupa

3rd Respondent

Richard Libano Misuha

4th Respondent

Oscar Muyuka Kushaluka Puteho

5th Respondent

Richard John Samati

6th Respondent

John Sikundeko Samboma

7th Respondent

Osbert Mwenyi Likanyi

8th Respondent

Thadeus Siyoka Ndala

9th Respondent

Martin Siyano Tubaundule

10th Respondent

Oscar Nyambe Puteho

11th Respondent

Charles Mafenyaho Mushakwa

12th Respondent

Charles Kalipa Samboma

13th Respondent

Procedural Posture

Criminal Appeal / Supreme Court Judgment on Appeal From High Court Ruling on Jurisdiction and Release Order

Legal Issues

  1. 1 Whether the Namibian court had jurisdiction to try the respondents given their removal from Zambia and Botswana without formal extradition or deportation procedures
  2. 2 Whether the respondents' removal constituted abduction, disguised extradition, or lawful deportation under international and municipal law
  3. 3 Whether Namibian authorities' conduct tainted the proceedings and required the court to decline jurisdiction

Ratio Decidendi

The majority of the Supreme Court found that, except for Charles Kalipa Samboma, the respondents were brought before the Namibian court through a process that bypassed mandatory extradition and deportation procedures, with active involvement or acquiescence of Namibian authorities, resulting in a breach of the rule of law and the respondents' rights. This tainted the proceedings and required the court to decline jurisdiction over the twelve respondents. In the case of Charles Kalipa Samboma, the evidence showed he voluntarily surrendered and consented to return, so the court retained jurisdiction over him.

Court Disposition

Appeal allowed in part; jurisdiction declined over twelve respondents, but retained over Charles Kalipa Samboma.

Orders

  • Order of the High Court releasing all thirteen respondents set aside only in respect of Charles Kalipa Samboma.
  • Application by respondents under case number (P) A268/2003 dismissed as to Charles Kalipa Samboma.