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THE STATE VERSUS ACHESON REVISITED FOURTEEN YEARS LATER1

Dr. Nico Horn


1. INTRODUCTION
The first government of the Republic of Namibia (1990 –1994) was possibly
the most successful in post-colonial Africa. The transition from colonial rule 2
was the most peaceful transition then known in Africa and the Constitution the
most liberal.3

I use the term liberal era in this paper to describe the term of the first
government of the Republic of Namibia (1990 – 1994).4 This period was
marked by a government taking ownership of the Constitution. The
Constitution was the cornerstone of the new dispensation, a document by the
people, for the people. The euphoria of independence and power was still
high and the Constitution was seen as a victory over apartheid and its vicious
oppressive structures.

The government and the people were proud of the Constitution, although they
sometimes complained that is not always interpreted the way the majority
wanted. Criticism was directed against the judges and the composition of the
Bench was criticized, but not the Constitution. The Namibian leaders were
intensely happy to be part of the international community. The Constitution
was seen as the instrument that can be used to overcome racism and other
forms of colonial inequalities.

The lack of black faces on the Bench was initially a bone of contention and
was perceived as a reason for the conflict between the government and the
judiciary.5 The ongoing insistence that the Bench must be sensitive to the will
of the people, has often been raised when decisions went against
government or when so-called enemies of the government got the best of a
judgment:

Shortly after independence a few unorganized white right wingers were


arrested while planning a coup d’etat. They were badly organized and they
had no sustainable structures, no support in society and hardly any weapons.

1
This article was written to coincide with the Second Anton Lubowski Memorial Lecture
presented by the Human Rights and Documentation Centre at the University of Namibia, 19
November 2003. It is dedicated to the memory of the late Anton Lubowski.
2
I use the term colonial rule in the broad sense of the word. Technically colonial rule ended in
1918 when Namibia became a South African mandate of the League of Nations. However,
since South Africa soon exceeded the bounds of the mandate, Namibians saw South African
occupation, especially after World War II, as an extension of colonial rule.
3
The South African Constitution is often heralded as “the best in Africa”. It must, however be
remembered that Namibia prepared the way for the South African transition in many ways, not
least in having a constitutional example when Codesa II needed one.
4
I have elaborated more on the different periods of constitutional development in a as yet
unpublished paper read as guest lecturer at the Institute for Social Studies in The Hague,
January 2003. The Development in Constitutional Interpretation in Independent
Namibia.
5
This was, however, not only a problem for the government or lay interpreters of the
Constitution. See Steytler, N., The Judicialization of Namibian Politics, 1993, South African
Journal for Human Rights, p. 477 ff., for a critical analysis of the constitutional compilation of
the Judicial Service Commission, the Bench, and eventually its effect on society.

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Consequently, although the accused were convicted, the sentences were
lenient.6

The SWAPO Party and other loyalists were “shocked” by the moderate
sentence given to white conspirators against the government. Although the
interpreters could possibly use several social or political elements as sources
for deconstructing this judgment, the political interpreters chose the race card.
It did not matter that Judge O’ Linn was appointed in the transitional period
with the approval of the SWAPO Party, that he had a history of defending
Plan fighters and SWAPO sympathizers, etc.

While he was one of the communists and liberals7 of the apartheid regime, he
was never a member of the SWAPO Party.8 And his history added the
necessary spice to make ethnic deconstruction work: he was a police officer
in South African before entering the legal profession!

But there is also the emotional element. While Judge O’ Linn was a
progressive politician and a human rights lawyer who fearlessly defended
SWAPO members and PLAN fighters, he was still part of the old political
order.9[9] He did not share the distrust of former political exiles and dissidents
in all the structures of the old order.

On the other hand, the non-resident judges of the Supreme Court were much
more critical of political powers of the old apartheid society. The critical
approach of the non-residential Supreme Court towards the police – which
still include traditional SWAPO enemies like the security police, Koevoet and
former South African Police Force members – was more in line with SWAPO
thinking.

However, the resistance against the Courts, and especially against Judge O’
Linn, was the exception. And while Judge O’ Linn called it a constitutional
crisis,10 it did not lead to total disillusionment amongst the people or the
government. During this period the Constitution reigned supreme.
International academics accepted that Namibia was a constitutional

6
S v Kleynhans and Others, unreported case of the High Court of Namibia, sentence
delivered on 19 September 1991, coram, Justice O’Linn.
7
While it is unthinkable to use the words communist and liberal interchangeable in ideological
terms, for the apartheid regime and its ideologists, it was two sides of the same coin.
Depending on the mood, an opponent could on day one be a communist and the next a
liberal.
8
See Judge O’ Lin’s comments in State versus Heita and Another 1992 (3) SA 785 NM on
786:
Two years ago some people called for my dismissal on the grounds of
alleged sympathy with SWAPO. Now a SWAPO-leader and SWAPO-
supporters ask for my dismissal, inter alia, on the ground of an alleged
colonialist and anti-black mentality. According to them I have become
irrelevant to black thinking in Namibia and I should not be on the High Court
Bench at all.
9
Judge O’ Linn lead a progressive internal political party in pre-independent Namibia that
campaigned for the implementation of Resolution 435, the return of SWAPO to Namibia and
the withdrawal of South African troops from Namibian Territory.
10
See State versus Heita and Another, p. 786.

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democracy11 and South African constitutionalists applauded the founding
fathers and Namibian courts for laying a good foundation to be followed by a
future democratic South Africa.

2 THE NAMIBIAN COURTS AFTER INDEPENDENCE: STATE versus


ACHESON12
The courts almost immediately established themselves in the new
constitutional dispensation. The early judgments caught the attention of the
international community. In Southern Africa it was praised as forerunners of
constitutional interpretation in Southern Africa.

Initially the new spirit was clearly demonstrated in the criminal courts. In the
well-known case of S v Acheson 13 the High Court refused a postponement
for the State in the highly emotional case against the alleged murder of
SWAPO activist, Anton Lubowski, just before independence.

Acheson, an Irish citizen, was suspected to have killed Lubowski or assisted


the South African covert Civil Co-operation Bureau (CCB) to do so. The State
attempted in vain to get the CCB accessories in Namibia for trial and the
acting Prosecutor-General, Hans Heyman, did not want to go to trial without
CCB members Staal Burger and Chappie Mare in the dock with Acheson.14

Anton Lubowski was born in 1952, the son of Wilfred and Molly Lubowski. He
initially grew up in Luderitz. When he reached high school, his parents sent
him to Paul Roos Gymnasium in Stellenbosch, named after the first Springbok
rugby captain, the most prestigious high school in the Western Cape.15

After school he went to Stellenbosch where he received his first degree.


However, at that stage, while he was not really politically involved, the
Afrikaner nationalism on Stellenbosch became too much for him and he
moved to the University of Cape Town, where he completed his LLB.

Anton Lubowski was a leader from the outset. Apart from being a student
leader in school and at university, he also became a commissioned officer in
the South African Defence Force during his year as a conscript in 1971. When
he joined SWAPO in 1984, he was dishonourably discharged and his
commission taken away from him. 16

Anton Lubowski returned to Namibia after his studies in 1978. He was a


lawyer for a short time before he joined the bar. He soon became involved in
political cases against SWAPO insurgents and local internal SWAPO leaders.
He also became involved in labour disputes. He became extremely
11[
See Naldi, GJ, 1995. Constitutional Rights in Namibia, Juta, Johannesburg,
12
1991 (2) SA p. 805 (Nm)
13
ibid.
14
ibid., p. 813
15
See Lubowski M. and Van der Vyfer, M., Anton Lubowski. Paradox of a Man, Queillerie,
Strand, undated, pp. 26 and 34.
16
ibid., p 37

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disillusioned with the South African and Afrikaner political ideology. He was
also extremely unpopular in the white community. In these days Lubowski
played a leadership role in the Federal Party of Brian O’ Linn and the non-
racial alliance, the Namibia National Front, which included the Federal Party,
but also SWANU, the oldest liberation movement in Namibia.17

Eventually Anton Lubowski joined SWAPO in 1984 and played an important


role in the mobilisation of the internal struggle against apartheid and the South
African occupation of Namibia.18

When South Africa reached a settlement and agreed to the implementation of


Resolution 345 in 1989, Anton Lubowski played an important role in
preparation of the return of the SWAPO leadership from exile. He also
spearheaded the election campaign with others.19

On 12 September 1989 Lubowski died untimely at the hands of the Civil Co-
operation Bureau, a clandestine organisation of the SADF. His murderers
were never brought to book and are walking around freely in South Africa.

The murder of Anton Lubowski was an highly emotional event that shocked
the Namibian community, and especially the SWAPO Party, intensely. Judge
Mahomed, later to become the second chief justice of Namibia, reflected on
the emotional aspects of the case:

Firstly, the murder of Adv Lubowski is a matter of very


fundamental public importance. It is common cause that Mr
Lubowski was a prominent public figure who was a member of the
present governing party and was during his lifetime generally
perceived to be a vigorous proponent of the right of the Namibian
people to self-determination and to emancipation from colonialism
and racism - ideals which are now eloquently formalised inter alia
in the preamble to the Namibian Constitution and arts 10 and 23.

His cold-blooded murder is a serious matter. The vigorous


prosecution of whoever might have been responsible for this deed
is clearly in the public interest and crucial to the administration and
image of justice in Namibia.

That image and that interest might prejudicially be impaired if


there ever follows a perception in the public (legitimate or
otherwise) that justice was defeated by procedural complexities,
by legal stratagems, by tactical manoeuvres or by any improper
collusion. The general community of Namibia must be able to feel
that every permissible avenue to pursue the prosecution of
whoever might be the killer of Mr Lubowski was followed.20

17
ibid., pp. 46 and 47.
18
ibid., pp. 37, 45ff.
19
ibid.
20
ibid., p. 820

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Referring to the difficult choice between the emotions of a nation and the
constitutional rights of an accused, Judge Mahomed made the following
comments on constitutionality:

The Constitution of a nation is not simply a statute that


mechanically defines the structures of government and the
governed. It is a ‘mirror reflecting the national soul’, the
identification of the ideals and aspirations of a nation; the
articulation of the values bonding its people and disciplining its
government. The spirit and the tenor of the constitution must
therefore preside and permeate the process of the judicial
interpretation and judicial direction.21

When it became clear that the suspected co-accused, Staal Burger and
‘Chappie’ Maree, without whom the acting Prosecutor-General did not want to
start the hearing, were not going to be extradited by the South African
authorities soon, the judge was confronted with the possibility to use the case
to implement a constitutional approach to bail applications, or for that matter,
criminal procedure, and suffer the consequences, or to toe the populist line.

The judge took the first option. He based his decision on a definite emphasis
on constitutional rights. And he made it clear that the law requires him to
exercise a proper discretion having regard, not only to all the circumstances
of the case and the relevant statutory provisions, but against the backdrop of
the constitutional values now articulated and enshrined by the Namibian
Constitution of 1990.22

If the Constitution becomes the foundation of all legal interpretation,


especially in criminal procedure, the judge pointed out that the Constitutional
insistence upon the protection of personal liberty in art 7, the respect for
human dignity in art 8, the right of an accused to be brought to trial within a
reasonable time in art 12(1)(b) and the presumption of innocence in art
12(1)(d) is crucial to its tenor and spirit.23

The judge went on to say that his judgement should be influenced by the
constitutional culture in the interpretation or application of the law or in the
exercise of a discretion. While the Court acknowledged the importance of
justice, and recognised emotional effect of the Lubowski murder on the
psyche of the new Namibian nation, it did not close its eyes for the protection
the Constitution grants to all people within the borders of Namibia – even if he
or she is suspected of having killed a Namibian hero.

When Judge Mahomed refused a further postponement on constitutional


grounds, Adv. Heyman withdrew the case and Acheson left the country. The
mystery of the Lubowski murder was never solved.

21
ibid., p. 814
22
ibid., p. 813
23
ibid., p. 813

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3. THE EFFECTS OF THE RELEASE OF ACHESON ON THE
OUTCOME OF THE CASE
The early breakthrough of the investigators in arresting Donald Acheson, an
Irish national shortly after the assassination on Anton Lubowski, was all lost
when Adv. Heyman withdrew the case against Acheson and the latter left
Namibia.

After his arrest, all the fingers immediately pointed to this notorious Irishman
with links to Irish Republican Army. Acheson had the right credentials for an
assassin: He had links with the IRA, he fought in the Rhodesian war, he was
without work since the end of the war, he was recruited by convicted murderer
Ferdi Barnard to work for the covert South African Defence Force Unit, the
Civil Co-Operation Bureau, already in 1989 suspected of eliminating anti-
apartheid activists and opponents of the South African government, he was
later handled and sent t Namibia by another well-known CCB member,
“Chappie” Maree.24

If his credentials and his reasons for being in Namibia were highly suspicious,
his conduct before and after the murder was even more so. His land lady, saw
him leaving her house shortly before the murder in a red Corolla. He had
something covered in a bag (which she said could have been an AK 47) with
him.

Several eye witnesses saw a red Corolla on the crime scene shortly before or
after the murder.25 There was, however, an exception. A young man living at
the corner of the street, saw a small red sedan, but he was sure that it was a
Golf. He stated that he was a car enthusiast and could not have made a
mistake. But a former German police officer who lived next to Anton Lubowski,
had no doubt that it was indeed a Corolla.26

Even more convincing was the testimony of Inspector William Lloyd, who was
the first Namibian officer to arrive at the scene. Lloyd found scrap marks on
the roof of the Corolla Acheson drove. The marks were on the right hand side
of the car above the driver seat. The marks gave the impression of an object
that moved around.27

If the assumption is correct that Anton Lubowski was shot with a semi-
automatic rifle from the right side of the car, the marks can easily be explained
. The assassin took aim with the rifle on the roof of the car. When he pulled
the trigger, the automatic rifle moved under the intense power of the semi-
automatic rifle. That was also the assumption of Inspector Lloyd.

24
See Inquest into the death of the late ATE Lubowski, unreported judgment of Justice Levy,
delivered on 23 June 1994. (hereinafter referred to as the First Lubowski Inquest).
25
See ibid., and the evidence of Mr. Kurz, an ex-policeman in Germany, in the Second
Inquest into the death of the late ATE Lubowski, and the unreported judgment delivered in
February 1998. Coram: Justice N Hannah. (hereinafter referred to as the Second Lubowski
Inquest).
26
See the evidence of Mr. Kurz, supra.
27
See first Lubowski Inquest.

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The murder weapon was never found. If Acheson was the murderer, he got rid
of the rifle before he was arrested. But even that is not strange, bearing in
mind that he was involved in at least two previous armed conflicts. The one in
Ireland and the one in Rhodesia.

The high court judge before whom Acheson appeared, the respected Justice
Mahomed, never heard the evidence to consider Acheson’s guilt. He also felt
compelled to develop a jurisprudence faithful to the values of the constitution
of the newly independent Namibia rather than allowing the emotional
argument to influence the legal issue, which was bail and prolonged
detentions for trial awaiting suspects.

Consequently, he rated the rights of an accused high, even if he was


suspected of being the murderer of a senior member of the SWAPO Party,
who has just won the first democratic elections in Namibia.

The prosecution, so it seems in hindsight, also had their doubts. When Justice
Mahomed instructed acting Prosecutor-General (as he then was) Hans
Heyman to either proceed against Acheson alone if the other CCB
conspirators cannot be found, or to suffer the consequences, he decided to
withdraw the case. As we have seen, Adv. Heyman was at the time of the
opinion that it was impossible to prosecute Acheson successfully without the
presence of at least some members of the CCB who was in Windhoek at the
time of the assassin.

4. THE FURTHER OUTCOME OF THE CASE


Acheson made an exculpatory statement to the police in which he not only
denied having killed Lubowski, but also declared that he went to Namibia to
kill Gwen Lister, the editor of the Windhoek daily, the Namibian.28

The Office of the Prosecutor-General believed that Acheson was framed.29


The evidence of the witnesses corroborate each other in one material aspect:
the assassin or assassins drove up to Lubowski’s house in a small red sedan
car and the assassination took place either from the car or next to the car.

Here the similarities end. Some witnesses, as we have already seen,


identified the car as a Golf, and others as a Corolla. The investigating officer,
Commissioner Jumbo Smit, was satisfied that the sedan was a Corolla. The
confusion with a Golf, can, according to the investigating officer, be described
as a bona fide mistake by shocked observers.

However, the office of the Prosecutor-General was not at all convinced that
there was only one car involved in the assassination. They believed that there
was a strong possibility that Acheson was used as a decoy.30 The theory is
that Barnard initially ordered Acheson to hire a white Corolla, which he did.
28
See the First Lubowsli Inquest.
29
See the Second Lubowski Inquest, especially the examination of the investigating officer,
Deputy Commissioner Smit, by State Advocate Cobus Miller. See also his statement handed
in at the first inquest.
30
Discussions with the Prosecutor-General, 1997; Information of Prosecutor-General to Ms
Gaby Lubowski, June 1998.

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The CCB had another white Corolla, which they planned to use in the
assassination. However, Acheson, who was not supposed to know of the
significance of the colour of the car, was not satisfied with it and exchanged it
for a red Corolla.31

While Ferdi Barnard was furious,32 the red Corolla was only a temporary
setback in the plans of the CCB. The SADF had a small sedan in Windhoek,
a red Golf. Thus, when Acheson’s was instructed to take his weapon and drive
slowly down the street, the CCB prepared for the shooting from the Golf.

If I understand the Prosecutor-General’s argument correctly, he did not say


that Lubowski was definitely not killed by Acheson. His argument was a legal
one. Acheson denies having killed Lubowski. The only evidence at the State’s
disposal is circumstantial evidence – the witnesses who saw the Corolla at the
scene of the murder, the marks on Acheson’s rented car, his suspicious
conduct in front of his landlady, etc.

And while circumstantial evidence is admissible and not weaker than direct
evidence,33 it needs to rebut reasonable doubt that the defence could raise.34

After Acheson left Namibia, he disappeared. Attempts to locate him through


diplomatic channels, assistance from South African Truth and Reconciliation
Commission and following up a number that came from a deputy director of
prosecutions in one of South Africa’s Provincial Divisions, lead to nothing. For
the same reasons that the acting Prosecutor-General did not want to
prosecute Acheson without Maree and Burger, the Prosecutor-General did not
want to request South Africa to extradite Burger and Maree if he could not get
Ferdi Barnard, Abraham (Slang ) van Zyl and Calla Botha as witnesses and
Acheson as a co-accused.

Justice Levy found in the First Lubowski Inquest that there was a prima facie
case against Ronald Acheson, who probably shot Lubowski, that the Civil Co-
Operation Bureau was involved and that the instruction to kill Lubowski came
from senior SADF officers.35 The judge, however, pointed out that test in the
case of an inquest does not mean beyond reasonable doubt, neither that the
test envisaged by the Inquest Act is whether the judicial officer . . . is of the
opinion that there is evidence available which may at a subsequent criminal
trial be held to be credible and acceptable. 36

Consequently, the prima facie test applied by the judge, gave a strong
message to the Prosecutor-General, that he believed that the way in which
the Prosecutor-General dealt with the case, was incorrect, his judgment did
not automatically follow that the State had enough prima facie evidence at its

31
See the First Lubowski Inquest.
32
See Acheson’s statement, First Lubowski Inquest.
33
See R v Blom 1939 AD 188 at 202 - 3
34
ibid.
35
See the unreported judgment of Justice Levy in the Inquest into the death of the late ATE
Lubowski, delivered on 23 June 1994.
36
Ibid.

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disposal to lead to a conviction of the people cited in the judgment. 37 But even
if it did, the Prosecutor-General did not share this opinion and never
requested the extradition of the South African accomplices.

4. JURISPRUDENCE AFTER THE ACHESON CASE


The High and Supreme Courts of an independent Namibia followed suit. It followed
the value-based judgement of Justice Mahomed in the Acheson case and took a
radical different approach in the interpretation of constitutional issues.38

Several cases followed where authoritarian practices of the South African


occupational era were challenged in the courts. Kruger and Curren 39
compares what they call a human rights dispensation with a parliamentary
sovereignty. While a parliamentary sovereignty will seek to enact the will of
the legislator in every case, and consider every case in isolation, a human
rights dispensation sees a Constitution and albeit, a declaration of human
rights in a constitution as a sui generis upholding an overriding set of values
and norms.

Kruger and Curren compared pre-1994 South African Appellate Division cases
where specific legislation was interpreted in the light of human right issues
based on the Constitution of the interim government of South West Africa /
Namibia and other so-called independent with similar Namibian High and
Supreme Court cases.

In both The State versus Marwane,40 and Cabinet for the Territory of
South West Africa versus Chikane,41 the Court took a rigid approach by
looking primarily to the meaning of the legislator a the legal interpretation
surrounding the issues.

In the Chikane-case the applicants (respondents in the Appeal case) attacked


Section 9 of Act 33 of 1985 on the ground that it is incompatible with the
Declaration of Fundamental Freedoms. While the Declaration embodied a
fundamental rule against discrimination, section 9 differentiated between two
categories of people.

The Court made the issue a legal one by asking if the classification is
reasonable. The reasonableness again had to be determined by the intention
of the Act, and whether the differentiation had a rational relation to the result
that was to be attained by the classification.

37
The made no secret of his dismay with the conduct of the then acting Prosecutor-General,
referring to his conduct as a demonstration of extreme incompetence.
38
Compare the Namibian cases with those decided by the High Court of South West Africa,
interpreting the constitution of the interim government (which included a Bill of Rights). See:
Namibia National Student’s Organisation and Others versus Speaker of the National
Assembly for South West Africa 1990 (1) SA 617 SWA, Mwandingi versus Minister of
Defence, Namibia, 1991 (1) SA 851 (NM).
39 Kruger, J and Curren, B 1991 Interpreting a Bill of Rights, Juta, Cape
Town/Johannesburg, p. 106 ff.
39

40
1982 (3) SA 717 AD
41
1990 (1) SA 349

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On the question if section 9 is unconstitutional since it excluded the audi
alteram partem rule, the Court again begins with the intention of the
legislation. It also works as apoint of departure with the rule ut res magis
valeatquam pereat - the legislator is presumed to have made a valid and
effective provision.

From here the Court attempts to make section 9 compatible with a Bill of
Rights by departing from the position that it would prefer a construction in
which the Act and the Rule of Law is not necessarily incompatible if a
minimum allowance for the audi alteram partem is included in the Act.

As it has been pointed out, the Acheson case broke radically with this rigid
tradition. Several cases followed in which constitutional sensitivity became the
norm.

In Ex parte Attorney-General, Namibia: in re Corporal Punishment by


Organs of State 1991,42 the Court was confronted with the question if
corporal punishment by an organ of the State is in conflict with chapter 3 of
the Constitution, more particularly art 8 thereof.

The Court, unlike the Chikane-case, did not begin with the facts of the case,
but the context of the Constitution. The Constitution and its texts, the Court
states, must be interpreted in the light of the aspirations and values of the
new nation that the Constitution seeks to articulate. The Court made the
following comment on the Constitution:

It expresses the commitment of the Namibian people to the creation


of a democratic society based on respect for human dignity,
protection of liberty and the rule of law. Practices and values which
are inconsistent with or which might subvert this commitment are
vigorously rejected.

For this reason colonialism as well as ‘the practices and ideology of


apartheid from which the majority of the people of Namibia have
suffered for so long’ is firmly rejected.

In considering what actions can be described as degrading and inhuman,


the Court stated that it is a value judgement which needs to be articulated. In
the process the Court must weigh the norms, expectations, sensitivities and
aspirations as well as the consensus of values of the civilised international
community.43

Kruger and Curren make the following observation regarding this judgement:

42
(3) SA 76 Nm SC
43
Ibid., p.86.

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There can be no doubt that the approach followed by the Court may be
described as the sui generis approach referred to in Fischer supra, and in
particular as a value-orientated approach.44

The change in the Namibian society that came about by independence did
not, as we have seen, stop with the implementation of a Constitution which
has a Bill of Rights. The new dispensation was also marked by a new
approach in the interpretation of human rights and other constitutional issues.

In S v Scholtz45 the Supreme Court ruled that the State was obliged to
disclose the content of the police docket to the accused, a practice unknown
in the undemocratic era, where the docket was considered privileged.

Foreign case law, especially Canada and the United States of America,
played an important role in this process. Constitutionality was not totally new
in the Namibian history – colonial South Africa had a written Constitution and
the interim government who was semi-autonomous at times between 1978
and independence, also adopted a Constitution with a Bill of Rights. The
Namibian Constitution, however, brought with it a democratic culture and a
Constitutional linkage to international law. Article 144 states that in interpreting
the Constitution the courts shall, among other things consider international
law.

The judgment of the honourable Justice DUMBUTSHENA AJA in S v


SCHOLTZ illustrates the way in which the courts dealt with international law:

Any system of justice that tolerates procedures and rules


that put accused persons appearing before the courts at a
disadvantage by allowing the prosecution to keep relevant
materials close to its chest in order to spring a trap in the
process of cross- examining the accused and thereby secure
a conviction cannot be said to be fair and just. Full
disclosure is in accord with articles 7 and 12 of the
Constitution. It would be wrong to maintain a system of
justice known to be, in some respects, unfair to the accused.
The right to disclose has acquired a new vigour and
protection under the provisions of articles 7 and 12 of the
Constitution. English cases cited above are proof beyond
doubt that non-disclosure leads to the denial of justice. 46

The new approach was not always appreciated by every bench of the High
and Supreme Courts of Namibia. But despite strong opposition,47 the value-
44
Supra
45
45 1997(1) BCLR 103 (NmS)
46
Supra, p. 447
47
See State versus Vries 1996 (2) SACR 638 (Nm) Recently the Supreme Court has
deviated from the value-based model in The Chairperson of the Immigration Selection
Board versus Erna Elizabeth Frank and Another Unreported case of the Supreme Court,
heard on 09 - 10/10/2000 and delivered on 05/03/2001, Coram O’ Linn, Strydom and Teek.
However, the Frank case should not be seen as the last word. The hermeneutical question is
still wide open and the constitutional jurisprudence that followed the Acheson case can not be

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based approach followed by Justice Mahomed in the Acheson case became
an important cornerstone in the hermeneutics of Constitutional interpretation
in Namibia.

5. CONCLUSION
It is highly unlikely that the assassins of Anton Lubowski will ever be brought
to book. Many Namibians hoped that the Civil Co-operation Bureau members
will be prosecuted in South African courts, but after the case against Wouter
Basson, changes are small that the national director of public prosecutions in
South Africa will ever attempt to prosecute former South African Defence
Force members for crimes committed in pre-independent Namibia.

Perhaps the acting Prosecutor-General erred in not proceeding against


Acheson alone. It is possible that the circumstantial evidence would have
been enough to secure a conviction. But this is all water under the bridge.

But in a strange way the Acheson case vindicated the values that Anton
Lubowski stood for. Anton Lubowski, the firm believer in justice for all, the
defender of the Upington Twenty Five, the political prisoner of conscience. He
would have been proud of the Namibian Constitution and the Namibian
Courts.

annulated by one Supreme Court judgment.

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