Widespread public interest was generated in Namibia from May onwards by the resumption of trial proceedings against three SWAPO guerillas convicted under the South African Terrorism Act. The arguments of the defence in mitigation dwelt at length on the case for captured SWAPO combatants to be treated as prisoners-of-war in terms of the 1949 Geneva Conventions on the international laws of war, and the additional Protocol 1 of 1977 dealing with wars of national liberation from colonial or racial domination. A number of prominent public figures were called to the witness box of the Windhoek Supreme Court by the defence, including three well-known local journalists, and a South African legal expert and academic. The case has been regarded as controversial because of the presumption that, if prisoner-of-war status were to be conceded by the court, a precedent would be created for future trials of captured combatants.
The three combatants concerned, Theofilus JASON, Lucius Nangala MALAMBO and Josef SAGARIUS, were all found guilty in the Windhoek Supreme Court in February this year, on charges under the Terrorism Act of infiltrating the country with a group of 22 guerillas in April 1981 and taking part in various acts of sabotage in the white farming region between Otavi, Tsumeb and Grootfontein. In a surprise intervention just before sentence was due to be passed on 25 February, the Supreme Court was informed that finance had been obtained for the three defendants to be represented by a Senior Counsel, Bryan O'Linn of the Windhoek Bar Council, who would lead evidence in mitigation. The three men had up to this point been represented pro deo. At the request of Senior Counsel, the trial was postponed until 11 May.
Josef Sagarius, who was severely wounded during the events leading to his capture in 1981, still had one leg in plaster when the trial resumed and had to be assisted into the court. Medical opinion was called in to assess the ages of the three men, estimated at between 20 and 24.
Between 30 and 40 SWAPO supporters packed the public gallery of the Windhoek Supreme Court to hear the defence witnesses called from 11 May onwards. The presiding judge, Justice Kenneth Bethune, indicated at the outset that the court would listen to all the evidence presented before making a final ruling on whether or not it was relevant to the case. It was made clear that the overall thrust of the defence would be the argument that the three convicted men, by virtue of the fact that they were engaged in an armed struggle for political reasons, and that the war had been forced upon them through the policies of the South African authorities in Namibia, should not be treated as ordinary criminals.
The three journalists to be called by Senior Counsel were Angel Engelbrecht, formerly of Die Suidwes-Afrikaner and now of Die Republikein, Max du Preez, head of the Nasionale Koerante Bureau in Namibia, and Hannes Smith, editor of the Windhoek Observer. Engelbrecht, a journalist and political reporter in Namibia since 1947, reviewed the rise of the nationalist movement during this period and the escalation of the armed struggle. He said that while he had little to do with the armed forces or directly with guerilla action, SWAPO in his opinion enjoyed strong support in Namibia.
Smith, an accredited military correspondent who was subpoenaed to appear before the court, said that the war being waged by SWAPO was a political one, all other options having been blocked by security legislation. In his personal opinion, SWAPO was a very strong political movement and possibly the majority party in Namibia. SWAPO's armed wing PLAN numbered about 6,000 combatants with other reserves in training. Its command structure was based on that of other armed forces involved in unconventional warfare, namely a Secretary of Operations, High Command, section leaders, political commisars, field commanders and so on down.
The Supreme Court was later told that under Article 43 of Protocol 1 of the Geneva Conventions, the armed forces of a national liberation movement, to be accorded recognition as prisoners-of-war in the event of capture, had to operate under some structure of command and to be subject to a system of internal military discipline.
The evidence given by Professor John Dugard, Professor of Law at the University of Witwatersrand, an advocate of the Supreme Court and former President of the South African Institute of Race Relations, dealt with the legal arguments surrounding the Geneva Conventions and Protocol 1. In summary, he argued that SWAPO's case for its combatants to be regarded as prisoners-of-war was even stronger than that of other recognised national liberation movements; firstly, because of the international status of Namibia and hence the international rather than domestic character of the conflict in the territory, and secondly, because of the categorisation of South Africa's occupation as illegal by the international community. He maintained that Namibian courts, while not in a position to refuse to exercise jurisdiction over SWAPO captives, should have due regard for developments in international law. It was, indeed, in South Africa's own interests to take account of the widespread feeling within the international community in support of SWAPO's claim to be treated as members of a legitimate armed force.
Dealing in detail with the history of the Geneva Conventions, Dugard reminded the court that South Africa had acceded to the 1949 Conventions on 31 March 1952. Thus at the very least, the specific article of the 1949 Conventions stating that no person should be summarily dealt with without a proper judicial hearing, appeared to govern South Africa's treatment of SWAPO members.
Describing the development of the international movement for decolonisation and the events leading to the formulation of Protocol 1 dealing with struggles for self-determination against colonial domination, alien occupation and racist regimes, Dugard said there was no doubt that the new doctrine relating to national liberation movements had been intended by the international community to apply with particular force to SWAPO. He explained that under Protocol 1, national liberation movements had to meet the requirements of Articles 43 and 44 of the Protocol in order to qualify for prisoner-of-war status. Article 43 provided that their armed forces had to operate under a command structure and observe military discipline, while under Article 44, combatants had to carry arms openly and wear some sort of uniform to distinguish them from the ordinary civilian population, if only during actual military engagements with the enemy.
The court had earlier been told by Senior Counsel that the three defendants had worn SWAPO uniforms and insignia, although these were not recognised as those of an armed force by the South African government.
Professor Dugard said that Protocol 1 had come into force in December 1978, when the first two states had ratified it, and that it had since been accepted by a total of 21 states including seven from Africa and five from Western Europe. Although South Africa had not ratified or acceded to the Protocol and was therefore not bound to confer prisoner-of-war status on SWAPO, it could not, in his view, stand aloof from the evolution of international humanitarian law reflected within it.
SENTENCES PASSED
The trial of the three combatants ended at the beginning of June, with the following prison sentences being imposed:
Theofilus JASON - nine years Josef SAGARIAS - nine years Lucius MALAMBO - eleven years.
