Trial: Judgment and Sentencing

On May 11, the day Judge Strydom had announced that he would deliver his judgment, the courtroom was packed before 9 A.M. After the “white” half of the gallery had accommodated those whites who wanted to attend, the remainder was opened to blacks.

Justice Strydom’s judgment, given orally in Afrikaans, lasted from 9 A.M. until 3 P.M. with a twenty-minute morning tea break and an hour lunch break. It fills ninety-four pages of the transcript.

In the first hour and a half Judge Strydom summarized the evidence relating to SWAPO, from the oral testimony and documents to weapons and songs. He noted that all the defendants were members of SWAPO and that it had not been declared an unlawful or prohibited organization. Some of his findings were almost eccentrically quaint: “Despite SWAPO, according to their exhibits, claiming or proclaiming that it is an organization which enjoys world-wide recognition, I do not find here any profession of God, who through his omnipotence and guidance controls the destiny of things and people.”³⁶ He accepted the evidence given by the state’s expert on SWAPO, Petrus Ferreira, saying that the defense had advanced no evidence in contradiction. Although the defense contended that SWAPO had an internal wing whose leaders have declared themselves against violence, the judge observed, none of these leaders gave evidence. Although he acknowledged the validity of Cooper’s argument that membership in SWAPO alone could not cause the court to find that the accused desired forcible overthrow of the government, Judge Strydom also accepted the documents found in the Landrover as evidence and concluded that:

According to the uncontested evidence SWAPO has no right to existence.

In discussing the cases of Mushimba and Shikongo, the court recognized that the defense had called attention to the fact that because witnesses had been held in detention, at times in solitary confinement, with persistent interrogation, “the psychological condition of the person interrogated becomes so influenced that he imagines and later believes and says things happened, which in fact are untrue and flights of the imagination.”³⁸ He even quoted from another case to underscore the point that the court “has a duty to reject the evidence of any witness if it has grounds for believing that his relationship with the police made the reliability of his evidence, when viewed in the light of all relevant circumstances, suspect.”³⁹ After saying this Judge Strydom commented that the state witnesses were Intelligent, withstood cross-examination well, and did not give the impression of telling a fabricated story. The court accepted the version as told by Elizabeth Namunjebo, Festus Shaanika, and Sam Shivute, as well as Lt. Dippenaar and the other state witnesses.

The court gave a detailed critique of the defense witnesses and Shikongo’s own testimony. One witness, he said, did not take the defendant’s case far; another could not have much weight given to his testimony; a third had been faulty in the recollection of a detail; Dr. Ihuhua’s testimony was irrelevant; yet another witness’s testimony was a lie; Shikongo’s girl friend’s evidence had no probability of being considered true, and others did not refuse the state’s case.

He gives the impression of an arrogant and presumptions young man. At an early stage grave suspicion arose in regard to his story that he was an innocent victim of a calculated cunning scheme on the part of Elizabeth. The fact of the case is that Nicodemus came from Odibo near the Angolan border with two SWAPO soldiers to Ondangwa. It is a reasonable possibility that their purpose included the use of their Tokarev self-loading pistols of which four were indeed used at the scene where Chief Minister Elifas was shot dead and others wounded. Nicodemus and his companions had two basic considerations in this undertaking, namely self-protection and a successful attack, for both of which transport and prior arrangements were essential. To suggest that Nicodemus and his companions would rely on Elizabeth’s possible arrangements on such a loose basis as Accused 3 suggests is simply laughable. To assume also that Nicodemus and his companions would not make use of someone in order to precisely establish the whereabouts of the Chief Minister is equally laughable.⁴⁰

The court found that Shikongo’s response to the court’s question as to why he had not reported to the police was “evasive” and “strongly blanketed by lies.” If Shikongo’s story were true, observed the court, “it is incredible that he did not react as any normal citizen would. A normal citizen would immediately hasten to the Police, not only to dispel any suspicions upon himself, but to offer help in order to trace the persons guilty of so brutal a murder.… My total impression of Accused 3’s account is that it is a fabrication made up to fit in with the State case as adduced.”⁴¹

As for the case against the three nurses (Rauna Nambinga, Naimi Nombowa, and Anna Nghihondjwa), or as the court called them, “Accused 4, 5, and 6,” Judge Strydom said that their defense was elementary. That they had given assistance for charitable and humanitarian reasons, he regarded as “sheer nonsense.”

The Chief Minister made appeals over Radio Ovambo to the people who had been lured out of the country by false pretenses, to return.

The court concluded that the state had proved that the elements of the act of terrorism had been committed by Nambinga and Nghihondjwa who had donated their R10 after having visited SWAPO soldiers in Angola and therefore knew who would receive the money. Nombowa, however, gave her R10 before visiting Angola, which led the court to entertain a reasonable doubt as to her knowledge when she contributed the money.

Shikongo’s participation in the murder of the chief minister, Judge Strydom determined, provided irrefutable evidence that he had the intent to endanger the maintenance of law and order. The only major point to be considered with respect to Mushimba, Judge Strydom concluded, was whether he handed the Landrover over to Victor Nkandi, and that, based on the evidence of Elizabeth Namunjebo, had been proved beyond a reportable doubt. The court apparently assumed that Nkandi delivered the vehicle to those who fired on the soldiers since the point was not considered. The court noted that Landrovers were particularly suited for terrorist activities, that Mushimba knew Nicodemus Mauhi, that Mushimba as an officer in SWAPO was “aware of what was going on,” and that SWAPO was militant and violent. The final failure of Mushimba was in not offering to testify on his own behalf:

The true position is that, in cases resting on circumstantial evidence, if there is a prima facie case against the accused which he could answer if innocent, the failure to answer it becomes a factor, to be considered along with the other factors; and from that totality the Court may draw the inference of guilt.

Therefore, the court announced, it found Aaron Mushimba, Hendrik Shikongo, Rauna Nambinga, and Anna Nghihondjwa guilty. Naimi Nombowa was not found guilty. The defendants must have been prepared for such a result. They had little reaction, just a smile and a shrug from Mushimba to his family in the gallery.

The court then adjourned for a quarter-hour before the late-afternoon session which had been requested by Prosecutor Jansen, who wanted to call two witnesses-in-aggravation of sentence. The first was Colonel Carel Coetzee of the South African Police who testified that he was investigating seven terrorist cases, which he briefly described. The second witness was Colonel Willem Schoon of the Security Police who had testified earlier by reading an entire issue of a SWAPO publication into the record. In this encore appearance he read a long report into the record. It was a list of fifty-nine “terrorist” incidents in Ovamboland over the past nine months, all attributed by the police to SWAPO. While the murder of Chief Elifas and other terrorist-type crimes, such as exploding land mines, were included on Schoon’s list, many of the acts were of the following sort: “On February 7, Phillipus Ndoya’s store was robbed of nearly R4,000"; on February 10, “terrorists stole just under R1,000 from Tolve Joel’s shop”; and “On March 11, the shop of an Ovambo woman, Ferresia Kolamoni, was robbed near Ohauwanga. R100 worth of goods was taken.” Colonel Schoon concluded by saying “SWAPO terrorists are responsible for all these cases we are presently investigating. We, in fact, have evidence to prove that SWAPO are [sic] guilty of these acts.”⁴⁴

On the next day defense attorney Cooper’s cross-examination of both witnesses-in-aggravation lasted a total of three minutes. Both witnesses admitted that their evidence was based on documents, not personal knowledge, and that no accused were before any court as a result of these incidents.

He asked the court to deal with the sentencing dispassionately and to note that all of the accused were first-offenders and relatively young. Mushimba, Cooper pointed out, had a wife and two small children, and there was no evidence that he had actively participated in a terroristic act or that the Landrover had been used in the assassination of Chief Elifas. Shikongo, said Cooper, was a lively young man who should not be punished for the deeds of others. He was not a party to the killing, and there was no suggestion that he knew his passengers were armed. Cooper asked that the court not feel a sense of frustration because the person in court was not the main culprit. Nambinga and Nghihondjwa, Cooper noted, were young women trained to serve society. Nghihondjwa had been married shortly before being arrested. Both had been heavily influenced by older people found by the court to be terrorists. In conclusion, Cooper observed that the witnesses called by the state created the impression that it was calling for vengeance. “But vengeance is mine, says the Lord,” Cooper reminded the court. He said that it is easy for one to be kragdadig (an Afrikaans expression implying a powerful wrath), but the history of South Africa, since the turn of the century and the harsh treatment of Afrikaners during the Boer War by their British captors, had demonstrated the counter-productiveness of Kragdadigheid.

Advocate Jansen, in his remarks, told the court that terrorism in South West Africa was on the increase and that SWAPO was accountable. Shops had been robbed, people kidnapped and killed, with innocent people the victims. The security of each citizen was at stake. The sentence, he urged, must serve not only as a punishment for a deed done but also as an example to others. “Accused No. 1” had purchased a Landrover which was later used to fire on the South African Army. “Accused No. 3” had taken the murderers of Elifas to their goal with full knowledge of their aims. “Accused Nos. 4 and 6” had given knowing aid to terrorists. He asked the court, therefore, to impose the most severe sentences.

In rebuttal Cooper argued that the two witnesses-in-aggravation had relied only on documentary evidence to testify to events which were not before the court but which had happened for the most part after the accused had been arrested. It would be unfair to hold these events against the accused. He finished by asking the court to deal with the accused according to their merits and punish them according to their deserts. The court adjourned for an hour and a half to consider the sentence.

When court was reconvened, policemen lined the walls of the gallery while the defendants stood. Judge Strydom read his four-page judgment. After noting that the Terrorism Act provided for sentences ranging from imprisonment to death, he gave a detailed overview of the evidence of terroristic incidents introduced by the two witnesses-in-aggravation of sentence. He was deeply affected by this evidence and held it against the four accused standing before him:

It is a foreign and barbarous outrage to murder and to injure innocent men and women under the banner of liberation of the oppressed.... The Accused heard this evidence—it was led yesterday afternoon. They have had the whole night to consider what they were engaged in and how obviously incensed is the peace-loving and orderly community of South West Africa and Ovambo at these incidents.

Notwithstanding this, they have elected not to give any evidence or to indicate even a glimmer of remorse, dissociation or even severance. This evidences an evil disposition which is still being maintained.⁴⁵

The court said that three factors were normally taken into account in sentencing: (1) the offense, (2) the offender, and (3) the interests of the community. In cases of terrorism, he said, the interests of the community demand preference, not as a demand for retribution but to set up a deterrent against further acts and to prevent citizens from taking the law into their own hands.

The guilt of Nambinga and Nghihondjwa, the court said, was aggravated by their moral assistance to terrorists, by the size of their gifts (20 percent of their month’s salary), and by the voluntary nature of their acts. But their youth, the deception and temptations by Usko, Nicodemus, and Gabriel, and the fact that the authorities had not seen fit to act formally against SWAPO, were all mitigating factors. Rauna Nambinga was sentenced to seven years’ imprisonment, and Anna Nghihondjwa to five.

A world of difference, Judge Strydom observed, existed between the cases of Accused 1 and 2 and Accused 4 and 6. “Terrorists who murder a Chief Minister and carry out an attack on the South African Defense Force can expect no mercy from a Court. This is an evil which must be wiped out, roots and all. Law and order must be maintained.... The Court finds no mitigation for imposing a sentence other than that for high treason.”⁴⁶

The clerk rose at this point to ask the accused whether they had anything to say to explain why the death sentence should not be imposed. Aaron Mushimba said that he had not known of these terroristic events and did not participate in any of them himself. He had bought the Landrover for his friend and did not know what he would do with it. He said that he did not want to violate the law or harm anybody and asked for mercy. He was not a person to kill others, and he had a family. Hendrik Shikongo said that it was correct that he had taken Nicodemus and the two others in his truck, but he had not known their purpose. No one had asked him to help the escape. He was not guilty of murder, and he had not intended to kill anyone or endanger the maintenance of law and order. He asked for mercy, that he might receive only imprisonment. Judge Strydom responded that he had no authority to give mercy. A policeman in the front of the courtroom rose and chanted in Afrikaans, “Hear ye, hear ye, hear ye! Silence in the court as the sentence of death is read!” Judge Strydom’s face flushed and his eyes opened wide as he looked through the two men standing in front of him as he condemned them: “Accused No. 1 and No. 3, the sentence of this Court is that you be taken to the place of custody and that you will hang by the neck until you are dead.”

As the death sentence was read some family members began to wail. The two men standing before the judge, after they heard their fate, held up their hands with fists clenched. The gallery answered the clenched fists. The four prisoners were taken out of the courtroom quickly. A crowd milled outside at some distance from the court building which was ringed with attack dogs and armed paramilitary police in battle dress.

“First S.W.A. Political Leaders to Hang,” announced the headline in the Windhoek newspaper, and the story began: “Swakopmund. Two SWAPO members, one of them an important official of the organization’s internal wing, were given death sentences yesterday—the first political leaders to die on the gallows in the history of modern South West Africa, unless a petition to the Chief Justice succeeds.”⁴⁷ The defense immediately moved for leave to appeal. They asked that they be allowed to appeal the convictions and that the record be changed to reflect error on the part of the court in not going to Ovamboland for an inspection in loco and in not recalling certain state witnesses for further cross-examination. Without adjourning to consider the motion, Judge Strydom stated that he did not see “a reasonable prospect,” which is the legal standard, that a higher court would find differently than he. He denied the application and adjourned court.