Ya Nangoloh: Caprivi secessionists are not Namibians

There is overwhelming and convincing evidence that the Caprivi secessionists cannot legally be said to have committed treason against Namibia because they owe no allegiance to Namibia.

This is what NamRights executive director Phil ya Nangoloh said in the witness stand at the resumption of the treason trial this week.

Ya Nangoloh maintained that the former Caprivi Strip was not now part of Namibia and was never part of the former German Protectorate of South West Africa (GPSWA) under the mandate system.

In his expert testimony Ya Nangoloh said “Caprivi Strip nationals”, those born in the former Caprivi Strip “are not Namibians by birth or descent as they are also not Namibians by reason of naturalisation”.

He said only those who owe allegiance to the country can be charged with, let alone be convicted of, high treason in Namibia.



Background

Ya Nangoloh based his legal argument on historic treaties and agreements.

Being a former German colony, the then GSWA, now Namibia, became a Class C Mandate in 1920 and was “subcontracted” to the Union of South Africa that acted as governing agent on behalf of Great Britain.

The Caprivi Strip resorted directly under Great Britain and was not part of the mandated territory, or the German Protectorate of SWA (GPSWA).





Ya Nangoloh pointed out that the Caprivi Strip was created on the territory of Great Britain in 1890 and that Germany was merely granted free trade access across the region.

However, because of the Anglo-German Treaty of 1890, the Caprivi Strip became an integral part of the Class C Mandate System or the Mandated Territory of South West Africa, also known as German South West Africa (established in terms of Article 22 of the Treaty of Versailles of 1919 and not in terms of an ad hoc League of Nations (LoN) instrument of 17 December 1920).

Ya Nangoloh stressed that there were two legal provisions serving different purposes of the Class C mandate system.

The Class C mandate consisted of three separate territories: the German Zambezi Territory formerly known as Caprivi Strip, the GPSWA, now Namibia, and the Territory of Walvis Bay, which became part of Namibia in 1994.



Right to self-determination

Ya Nangoloh stated that Caprivians are entitled to self-determination, as stipulated in Public International Law (PIL) and that the Namibian Constitution, which effectively is PIL, should not be interpreted disingenuously.



He said the incorporation and annexation of the Caprivi Strip was strictly prohibited in terms of the Treaty of Versailles of 1919 and the Mandate System of the League of Nations.



Namibia attained independence from South Africa in 1990 and not from the United Nations (UN), and Ya Nangoloh maintains that the territory that became independent was “exclusively” the very same part of the mandated territory which formerly constituted the GPSWA, which excluded the Caprivi Strip.



He said the application of Namibian laws post-independence had the legal effect of illegal annexation of the Caprivi Strip and was in “blatant violation” of Customary International Law, similar to Russia's annexation of Crimea in 2014.



Ya Nangoloh concluded that the only way the Namibian state and the prosecutor-general may exercise personal jurisdiction over the treason accused is in accordance with the “passive personality principle”.



This means that the state, in limited cases, can claim jurisdiction to try a foreign national for offences committed abroad that affect its own citizens.

CATHERINE SASMAN