REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK SENTENCE Case no: CC 32/2001 In the matter between: THE and CALVIN LISELI MALUMO & 65 OTHERS ACCUSED Neutral 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 2015 Delivered: 8 December 2015 Summary: 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 Trial
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) 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