Trial: Prosecution Witnesses

Prosecutor Jansen’s brief, ten-minute opening address revealed that the trial would be not so much against the six accused as against SWAPO, with the accused serving as scapegoats for the organization.

When the state turned its attention to the crime at hand, the murder of Chief Filemon Elifas, the spotlight had shifted to Hendrik Shikongo, who was the only one of the six accused who was charged with having any involvement in the murder. He was charged with having given three men a ride to the scene of the murder knowing that they intended to harm the chief. Chief Immanuel Elifas, who succeeded his brother as chief of the Ondonga tribe of the Ovambos, told the court that he had accompanied his brother to Thomas Nangombe’s bottle store and that Shikongo had come in and bought a hip flask of whiskey for the chief.

The trial was lent a police-state mood by the appearance as state witnesses of seven persons who had been arrested under the Terrorism Act. They took the stand while still detained in the absolute control of the police. Under the watchful eyes of Lt. Dippenaar, who had held and interrogated them for more than three months and who now sat at the counsels’ table only a few feet away, they took the stand knowing they would return to Dippenaar’s control following their testimony. Naturally, these witnesses were under extreme stress. Their stories, as cross-examination revealed, were shaky. In spite of the defense request that the witnesses be admonished not to discuss the case outside the court, Lt. Dippenaar was seen in the lobby during adjournment with witnesses in an insistent whisper, as though prepping them.

The appearance as a state witness of Sam Shivute, a well-known senior SWAPO official who had served as secretary for Northern Namibia, caused the audience to stir. He told the court that shortly after 11 P.M. on the night of the Elifas murder, about two hours after the shooting, Hendrik Shikongo told him how he had driven two unknown SWAPO leaders to the store where the chief had been murdered. Coming from such a highly placed SWAPO leader, this testimony was damaging. Under severe cross-examination by Cooper, Shivute was asked if the police had offered to release him from detention if he gave evidence that Shikongo had identified the mysterious pair as SWAPO members.

Cooper: But you on your own volition told the Police that Hendrik said that the two men were members of SWAPO?

Shivute: Yes, Hendrik said to me that those two persons were members of SWAPO, but I myself to tell the truth cannot confirm that they were members of SWAPO.

Cooper: Mr. Shivute, you understand my question without an interpreter. My question is very simple. Did you of your own volition tell the Police that Hendrik said the two unknown men were members of SWAPO?

Shivute: I myself did not tell them, but I only told them what Hendrik said.

Cooper: So it was of your own volition that you told the Police?

Shivute: It was only during the questioning.

Interpreter (in Ovambo): Did you say that of your own volition? Were you not forced to say it?

Shivute (in Ovambo): I do not understand what he wants to say.

Interpreter (in Ovambo): The story which you have now told here, is that of your own volition that you told it?

Shivute (in Ovambo): It does not mean that it is of your own volition. It depends whether a person is in detention and upon the method of his interrogation or the circumstances of his interrogation.

Interpreter (in Afrikaans): It was merely during the interrogation.²⁰

On the day following the Elifas murder Shivute was arrested and interrogated time and time again by Lt. Dippenaar. He had been held in solitary confinement from his arrest in August until the trial in February.

Elizabeth Namunjebo, known as Queen, a 38-year-old mother of four and a salesperson in a general store, was the third state witness who, at the time of her testimony, was under detention. She had been a SWAPO member for several years and was an acquaintance of Mushimba and Shikongo. In her testimony she connected the blue Landrover with Mushimba, Mushimba with SWAPO member Victor Nkandi shortly before the Elifas murder, and Nkandi with Shikongo on the day of the murder, a string of circumstances. More significantly, she claimed that Shikongo had come to her home on the night of the murder after she was in bed asking if she had seen his friends and telling her, “We killed the chief.” During the cross examination she could remember few details beyond those she gave in her direct testimony, and she revised and contradicted some of them.

Two of the seven detained who took the stand for the state revealed in their testimony far more about police methods than about either the accused or the Elifas murder. Two frightened nurses, both in their twenties, were brought in by the state to tell about SWAPO meetings at which the accused nurses—Rauna Nambinga, Naimi Nombowa, and Anna Nghihondjwa—had each contributed R10 ($11.50) to the SWAPO cause and about a visit across the Angola border with supplies of sanitary napkins and soap for those Namibians who had fled the country. During cross-examination the first nurse told how the soldiers had surrounded the hospital one day in October and arrested her and nine other nurses. Soon after her arrest she made a statement, but it was torn up and she was told by her interrogators that it was not the truth. Cooper asked her when she had been last interrogated. After having been asked the question three times and admonished not to be silent, she blurted out that it had been earlier in the day by Lt. Dippenaar. At that point Dippenaar, sitting directly in front of the witness at the counsel table, stood up and left the room. She said that he had told her she must say in court what she had said in her “acceptable” statement that had not been torn up by the police. Although her statement was under oath, she did not know the meaning of perjury. She said she had to tell the truth and proceeded to revise her “acceptable” story under questioning by both Cooper for the defense and the judge.

The second nurse, Kaino Malua, had a similar but even more revealing account of police methods while she was cross-examined by Cooper.

Cooper: When were you interrogated?

Witness: From the 21st to the 23rd (of October).

Cooper: Were you interrogated continuously during this period?

Witness: Yes, I was interrogated those days.

Cooper: By whom?

Witness: By the Police.

Cooper: And did you make a statement to the Police?

Witness: Yes.

Cooper: Were the Police satisfied with the first statement you gave them?

Witness: No, they were not satisfied with it, since they tore up the other papers.

Cooper: Now, after they had torn up the papers what did the Police do then?

Witness: They interrogated me again.

Cooper: For how long?

Witness: Yes, it was a long time, because it was a whole night. I did not sleep that night.

Cooper: Which night did you not sleep? The 20th, 21st, the 22nd, the 23rd?

Witness: Between the 22nd and the 23rd.

Cooper: Now how were you able to remain awake all night, Kaino?

Witness: I was suspended from 3 o’clock in the afternoon to 1 o’clock at night, hoisted, shall I say, by my right arm and my feet could not touch the floor.

Cooper: How were you hoisted by your right arm, could you explain to the Court?

Witness: My arm was fastened as I indicate, it was chained, and the chains fastened to the light (fan light?).

Cooper: The witness now shows with her right hand that her right hand was extended or stretched?

Witness: Yes, it was stretched.

Cooper: Above her head?

Witness: Yes, as I now show.

Cooper: That is above your head?

Witness: Yes.

Cooper: You say that a chain was fastened to the wrist of your right arm?

Witness: Yes.

Cooper: To what was the chain then attached?

Witness: Something which hangs above like this.

Cooper: You have not shown that you are stretched. When the chain was then attached, where were your feet?

Witness: I was not altogether on the plank, I did not altogether touch the plank.

Cooper: Did you stand comfortably?

Witness: I could not stand comfortably as I stand today, since I was in the air, and my feet did not touch the ground and the floor.

Cooper: For how many hours were you fastened in this manner?

Witness: From 3 o’clock until 1 o’clock at night.

Cooper: Now can you tell the Court why the Police did that?

Witness: They said that I was not telling the truth, but I then said that I was telling the truth.

Cooper: After you were fastened like that, did the Police again take a statement from you?

Witness: Yes.

Cooper: And were the Police satisfied with the statement?

Witness: Yes.

Cooper: And was the statement given under oath?

Witness: Yes, I gave it under oath, although it was not correct.

Cooper: In what respect was it not correct?

Witness: Yes, I gave it under oath and I swore to it because they considered it to be correct.

Cooper: But what appears in the statement is not correct?

Witness: Some of it is the truth, but other is not the truth.

Cooper: Why then did you take the oath for this statement, of which parts were not the truth?

Witness: I swore the oath because they believed that everything was the truth.

Cooper: Now which parts of your affidavit were untrue?

Witness: I cannot remember.²¹

Of the thirty-three prosecution witnesses, two SWAPO members refused to cooperate. Both Victor Nkandi and Axel Jackson Johannes were under detention and told the court that they would not testify until they had each been put in the dock as an accused. Judge Strydom read the provision of the criminal code which specifies a sentence of up to twelve months for such refusal, reminding them also that after twelve months’ imprisonment they could again be brought before the court and if they continued to refuse to testify, they might receive another twelve-month sentence. “According to the laws of the country,” the judge explained, “it is the duty of a person called upon to testify to answer to lawful questions and a person who refuses to answer lawful questions breaks the law.” Johannes responded: “As I have told the Court, I have spent 200 days in jail, if I have then done something, if I have then transgressed anything, then I must appear before the Court, then I must be prosecuted. Because I do not know of a law that a witness may be locked up. I see that witnesses are always at large.” The judge interpreted the Terrorism Act, telling Johannes that it “is a law that authorizes the authorities to detain witnesses until they have given evidence.” When asked by the judge whether he persisted in his attitude, Johannes, like Nkandi before him, replied that he did, and the judge sentenced him, as he had Nkandi, to twelve months in prison.²²

When Security Police lieutenant Gert Dippenaar was called to testify, he left his seat at the counsel’s table and walked around to the witness box with a confident and eager manner. As the major investigator of the Elifas murder, he covered the details of the location of the vehicles at the bottle shop, the interrogation he had conducted of those people at the scene, and the contents of the blue Landrover. He determined that when he had arrived about two hours after the killing, two vehicles had left, one of which belonged to Hendrik Shikongo or, as he put it on the stand, “connected with the name of Number 3.” In the morning he saw to it that Shikongo was arrested. Among the documents found in the Landrover Mushimba had purchased, according to Dippenaar, were a draft constitution of SWAPO; the SWAPO membership card of Ruben Hauwanga (the brother of Shikongo’s girl friend); a green, red, and blue SWAPO flag; a seventy page manual on the use of a 75mm recoilless antitank gun; four letters in the Kwanyama dialect telling about guerrilla activities; maps; an appointment book; and a memo book. The appointment book had an entry for August 16, 1975, the day of the assassination, which read: “This is the day of death for Chief Elifas.” The memo book had an entry for the same day reading: “Today is a great day to remember for all the people of Namibia as we see the death of Chief Elifas at 8:30 P.M. by SWAPO soldiers. Four brothers are fulfilling this task.”²³

Among the expert witnesses introduced by the prosecution was a Security Police translator who provided the court with the lyrics from several SWAPO songs found on tapes taken from Elizabeth (the Queen) Namunjebo. She said they had come to her from Usko Nambinga, a SWAPO organizer and brother of the accused Rauna Nambinga. The defense objected that the tapes were hearsay, but the prosecution persuaded Judge Strydom that they should be admitted because they mentioned killing Chief Elifas, proving that SWAPO was responsible for the murder. Some of the verse on the tapes which were played for the court and translated from Ovambo include the following that the prosecution offered as evidence of terrorism:

Namibia, our whole land is in slavery, SWAPO will come. Have weapons ready to attack the black Boers. Throw out the Boers with our weapons. Elifas, the dawn has come and you’re still asleep. We Namibians must unite. We are the men from the bush who fight for freedom. The Lord is the conqueror. Tell Ndjoba and Elifas we’ll settle accounts with them. We’ll come dancing. We’ll come with cannons. We’ll bury them.²⁴

Colonel Willem Schoon, the Security Police officer who accompanied Griswold, testified, if that is what it can be called, by reading from cover to cover the September-December 1975 issue of the English-language SWAPO publication Kalahari Pilot. (The Pilot is one of many names under which SWAPO’s Namibia News, published in London and banned in South Africa, appeared in Namibia.) One story in the magazine was about the mass arrests, complete with photographs of Aaron Mushimba and Sam Shivute, and another told of guerrilla activities. But the relevance of Col. Schoon’s giving an oral rendition of the entire magazine, including stories such as “Successful UK start to SWAPO Women’s Tour,” was neither questioned by the Judge, objected to by the defense, nor explained by the prosecution.²⁵

The final prosecution witness, the thirty-third to appear, was the government’s expert on SWAPO, Petrus Ferreira. He had been a captain in the Security Police, but in 1970 he had left to join a governmental department he preferred not to name (the dreaded and super-secret Bureau of State Security, BOSS, as cross-examination later revealed). He told at length of the 1957 origins of SWAPO, its development, its goals to free South West Africa from white domination and separate development, and its methods, including the military. Because Ferreira was a surprise witness, Cooper rose to say that the defense was not in a position to cross-examine him at the time. By bringing in Ferreira, Cooper charged, “what the State has done is put SWAPO into the dock as an accused.” Judge Strydom refused to acknowledge the charge because all of the accused were members of SWAPO and they were charged with having given aid to terrorists.²⁶ Nevertheless, in order to give the defense time to find documents and hold consultations with experts on SWAPO, the judge granted a two-week adjournment.

This was the second adjournment and one which presented the defense with a dilemma. During the first adjournment, ten days following the testimony of Gert Dippenaar, the defense made a trip to the scene of the crime in Ovamboland to find out, among other matters, if Shikongo’s truck could be seen from inside the bottle shop, as witnesses interrogated by Dippenaar had claimed. The defense found that it would be practically impossible to see his truck, but Judge Strydom, after some delay, refused to grant the defense application to recall several witnesses.

The second adjournment presented the defense with a question unrelated to the circumstances of the Elifas murder: Should they try to defend SWAPO as well as the accused? Ferreira’s testimony raised a dilemma as intrinsic to political trials as it is potentially inimical to the rule of law. By presenting experts qualified to refute Ferreira, the defense would accept the premise that his testimony was relevant, suggesting that the six accused were part of the SWAPO terrorist designs that he outlined. But by playing down Ferreira, arguing that his testimony was irrelevant, the defense would risk having the court accept it, nevertheless, unchallenged. Further, given the Terrorism Act, any genuine authority on SWAPO would, by testifying, put himself or herself in a position of either being used as an unwitting spy or being arrested as a terrorist. Because Ferreira’s testimony had received a considerable amount of press coverage that portrayed SWAPO as a violent Communist-inspired organization with a lust for power, the state would win no matter which strategy the defense employed.

The defense decided to use the cross-examination to attempt to discredit Ferreira as an expert while maintaining that what he said about SWAPO was irrelevant as far as the six accused were concerned. The lawyers had, before deciding on a course of action, visited several of the SWAPO leaders held on Robben Island, South Africa’s top-security political prison for blacks, as well as various academics. On the stand Ferreira admitted that none of his testimony had been based on personal knowledge. Much of his research on SWAPO relied on periodicals, press statements or speeches by SWAPO leaders, and books by Mao Tse-tung and Che Guevara. The writings of Mao and Guevara, incidentally, are banned by the government of South Africa. Concerning an incident Ferreira had emphasized in his direct testimony, the disturbances surrounding the forced removal of Windhoek’s blacks, he was unaware that an official governmental investigation had laid the responsibility not on SWAPO but on the Herero tribe. As for a 1971– 1972 strike, which he had claimed had been organized by SWAPO leaders, Ferreira could cite no source beyond saying it was “delicate information” from an undercover source whose life would be in danger if his name were revealed. Ferreira, moreover, had not been in the locations where the strikes had occurred.²⁷

Ferreira was the last prosecution witness. The defense applied for the discharge of Andreas Nangolo on the ground that there was no evidence by which a reasonable man could convict him of handing the Landrover he had purchased over to a “terrorist.” It was not proved, Cooper argued, that Nangolo had any knowledge of Usko Nambinga’s alleged subversive activities because it had not been shown that the vehicle had been used by Nambinga or anyone else for such purposes, much less that Nangolo intended that it should be. Jansen contended that the key to the case against Nangolo was that Nambinga was a terrorist, as proved by his false signature, a name which means “fighter for the Lord,” on the purchase document. Judge Strydom dismissed the defense motion, concluding that while the state might have a weak case, still a reasonable person could find Nangolo guilty.²⁸