Sunday, February 5, 2023

Namibians feel let down by ICC over BDF shootings of their own  

Namibians are peeved that the International Criminal Court (ICC) has refused to prosecute President Mokgweetsi Masisi and Botswana Defence Force (BDF) Commander Placid Segokgo for the deaths of four suspected poachers.

Despite the latest setback, Caprivi Concerned Group (CCG) has vowed not to let the matter rest. It has since escalated the matter with the United Nations (UN). The Namibian pressure group has also vowed to also file more papers with ICC to build a strong case against Masisi and Segokgo.

CCG secretary general Edwin Samati confirmed that “the International Criminal Court (ICC) decided not to investigate or pursue the case of extrajudicial killing of the Nchindo brothers and their cousin against President Masisi of Botswana and his army general.”

Samati said the three Nchindo brothers and their Zambian cousin “were killed by trigger- happy Botswana Defence Force on the night of 20 November 2020 pursuant to the force’s shoot to kill policy against suspected poachers.”

“They were just fishermen, unarmed, and the force could have apprehended them and take them to court Regrettably, Kasane Magistrate Court absolved the killers based on incomplete investigation and or a partial inquiry,” he said.

Samati explained that the Office of the Prosecutor at ICC based its decision on its opinion that the matter as submitted is outside the jurisdiction of the court, particularly that the crime alleged is not one of the crimes which the ICC is mandated by the Rome Statute to deal with.

“Although the foregoing decision is negative, and we strongly disagree with it, we appreciate the fact that the court indicated that it remains open and available to reconsider its current decision should we provide new facts or evidence on the matter,” said Samati. In other words, he explained, the court suggests that “we submit more facts and evidence on admissibility to fit it among crimes which the court is mandated to prosecute.”

He said they would pursue the matter with ICC until justice prevails. “While we are still consulting lawyers on ICC case, we submitted the Nchindo brothers’ execution to the United Nations High Commissioner for Human Rights last week hoping that the UN Special Rapporteur on extrajudicial killings and arbitrary executions will examine the matter and share it relevant stakeholders, and accordingly engage Botswana government,” said Samati.

In a letter dated 20 September 2022, ICC head of information and evidence unit in the office of the prosecutor, Mark Dillon, explained that ICC is governed by the Rome Statutes which entrusts the Court with a very specific and carefully defined jurisdiction and mandate.

“Based on the information currently available, the conduct described in your communication does not appear to fall within these stringent definitions. Accordingly, as the allegations fall outside the jurisdiction of the court, the prosecutor has confirmed that there is no basis at this time to proceed with further analysis,” he said.

Dillon added that; “The information you have submitted will be maintained in our archives, and the decision not to proceed may be reconsidered if new facts or evidence provided a reasonable basis to believe that a crime within the jurisdiction of the court has been committed.”

He explained that the fundamental feature of the Rome Statute is the ICC only exercises jurisdiction over persons for the most serious crimes of concern to the international community as a whole, namely genocide, crimes against humanity and war crimes.

According to a document dated 19 October, 2022, the CCG has since filed a report with the United Nations High Commissioner for Human Rights.

In his letter addressed to the ICC’s Prosecution Unit, Samati had stated that Botswana has a policy of shoot to kill which is applied by the BDF in the force’s operations or war against poaching. “This policy, Samati said, entails shooting suspected poachers with the intent to kill without bringing them through a judicial process,” he said.

Samati said if the shoot-to-kill policy exists in Botswana’s legal system with clear objectives and rules of application, then the soldiers responsible, should not be prosecuted but rather the “principle respondeat superior should apply if the policy is not consistent with international human rights or humanitarian law, or the ICC Statute.”

In legal terms, the respondeat superior is a doctrine that makes a master liable for the wrong of a servant.

Samati’s letter states that in the event that the principle respondeat superior is applied, either BDF Commander in Chief, Masisi, or BDF Army General, Lieutenant General Placid Diratsagae Segokgo, or BDF Joint Task Force Commander for the Chobe and Ngami District, Lieutenant Kennel Samuel Okgethilwe Tselayakhumo be held accountable.

However, if such policy does not exist in the national laws of Botswana, members (Unit) of Botswana Defence force who were involved in the operation or incident, whose names are mentioned in Kasane Regional Magistrate Taboka Mopipi inquest ruling, should be investigated and prosecuted for murder under the ICC statute.

Samati said then BDF members who killed the four fishermen are the ones to be held individually liable for the deaths if Botswana has no policy of shoot to kill in anti-poaching operations or acted outside internationally recognised procedures to deal with unarmed suspects.

He said they are: “Lieutenant Moreri Kenneth Mphela, Sergeant Ndingisano Nfazo Sergeant Puisano Pistor Kgokong, Private Mbikiso Tafila, Private Emmanuel Moganetsi Majuta, Private Barulaganyi Rannosang and Private Oromilwe Motlhabi.”

Samati stated further that: “This case requires an extensive and independent investigation to ensure the international standard of justice. It can also assist in preventing unlawful killing of human beings with impunity by BDF members, and to help the families of the deceased to find closure over the case.” 

He said while Botswana claims that the deceased in the November 5 2020 incidence were armed, a joint investigation by Botswana and Namibia could not retrieve the firearm(s) carried or used by the fishermen in the area where they were shot dead.

“Botswana authorities instituted an inquest in this case to determine, inter alia, the cause of death for the four fishermen and the probability of the perpetrators to be held criminal liability, and the court found that the fishermen all died from gunshot wounds by the BDF but further ruled that the perpetrators would not be held criminally liable for the deaths,” he said.

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