20 Jan 2022

Members of the Botswana Defence Force (BDF)  involved in the shooting of  three Namibians and a Zambian on November 5, 2020 cannot be held criminally liable, Kasane Regional Magistrate Court has found.

Making the ruling yesterday, a month after a well-publicised inquest into the deaths of the four men,  Magistrate Taboka Mopipi therefore absolved the soldiers of any wrongdoing.

She said according to the evidence before court, in shooting the three Nchindo brothers Martin, Tony and Ernest and their cousin Anthony Munyeme, the soldiers acted in line with their Standard Operating Procedures (SOPs).

Therefore their action did not amount to gross negligence such as to constitute criminal liability for the deaths, she said.

Ms Mopipi said evidence showed that the four died near Sedudu Island in the waters of the Chobe River in Botswana where movement was restricted in terms of the country’s laws.

Quoting postmortem reports, she said the four died from gunshot wounds they sustained when the BDF returned fire acting in terms of their SOPs.

“At the time the BDF section was on an investigation mission following a tip off from a Namibian national,” she pointed out.

Ms Mopipi said she observed throughout inquest proceedings that both Namibian witnesses and audience openly criticised the shooting of their fellow countrymen, but “all that have to fall under judicial scrutiny since they raised sensitive issues particularly on diplomatic relations of the two countries involved”.

The magistrate said she viewed in serious light the allegation that the BDF members planted elephant tusks found in the men’s possession to portray the deceased as poachers.     

She noted that the issue before court resulted from a shooting that took place before any item was discovered in the canoes.

“On the point that no elephant was identified as killed in the park and that the tusks had no blood stains on them, the view of this court is that poaching by its nature does not require killing of an animal and therefore the basis of the alleged should not necessarily be tied to the tusks as it is evident that they could be found lying around the park,” she said.

She said the origin of the incident was founded on retaliatory shooting, which resulted in the four deaths.

The elephant tusks, Ms Mopipi said, were therefore not an issue that could determine the finding of the court.

“If the allegation was credible, one would ask why the planting of evidence did not extend to the weapon which is the most crucial item in these proceedings,” she said.

Magistrate Mopipi said the Namibians further wanted the court to believe that the deceased were fishermen and not poachers and that fishing was their livelihood,  producing as evidence fishing licenses from the Namibian government.

While the court could not dispute that they were fishermen, it was  her considered view that the assertion did not eliminate the possibility of them being dependent on something else for a living.

No evidence was led to prove that indeed their livelihood was fishing only, more so that the fishing licences produced  could not be used in Botswana, said Ms Mopipi.

She said the contention that there was no proof of rifle ownership by the deceased did not eliminate the possibility of illegal possession.

“Further, the argument that the deceased had loaded items which included fishing nets and no rifles when they left their home, does not hold water as it cannot be established whether they loaded more items or unloaded some along the way. No witness gave an account of the activities that deceased persons engaged in on that particular night,” she said.

Ms Mopipi said the claim that there was sound of fishing nets being loaded in the boats was a bare allegation not substantiated by any evidence and as such the court could not rely on it.

On the notion that the resources along the Chobe River were equally shared between Botswana and Namibia, Magistrate Mopipi said even if she were to believe the perception, in her view it did not warrant illegal access and entry into another country’s territory and violating its laws and regulations.

“There were contentions that investigations in this case were conducted in what was termed a dishonest manner as Namibian Police authorities were shown the rifles used by the BDF members, that the same rifles were not taken for ballistic assessment, that the deceased relatives were not allowed to view the whole bodies during identification at the mortuary and that the relatives were not allowed to observe postmortem procedure,” she said.

Saying the fact that the rifles were not shown to NAMPOL was wrong, she however noted that an explanation was provided as to why the firearms were not taken for ballistic examination.

Ms Mopipi stated that the it was undisputed that the rifles were used in the shooting and therefore it was not necessary for them to be examined.

“Although procedure was not followed on this point I find the explanation to make sense in this more so that there is admission on the part of the BDF that the rifles in issue were used in the shooting. My view is that ballistic examination is meant to corroborate evidence and therefore in this case absence of ballistic evidence cannot negatively affect the findings of the court,” she explained.

On why the relatives were not allowed to uncover the bodies at the mortuary, Ms Mopipi said it was explained to the court that the removal of clothes was done during autopsy by the pathologist who recorded observations and findings.

Removing the clothes at the mortuary would amount to tampering with investigations, Ms Mopipi stated.

The magistrate further said the court was told that this was standard medical practice in Botswana and across the world.

“There are also very serious allegations that BDF members are merciless and brutal, that there is interference by the Botswana government on the security of Namibia and that Botswana values animals more than people,” she said.

On the issue of brutality and merciless attitude, Ms Mopipi said evidence by Cassius Mwala showed that there were instances where  BDF found Namibians fishing on the Botswana side but only arrested, detained and released them the following day.

As such, the court would not want to believe the allegation, she said adding that on the night of the shooting it was evident something abnormal had happened.

On Botswana government’s alleged  interference, Ms Mopipi said no evidence was produced in court to prove the allegation.

She also addressed  allegations that the men’s  faces were swollen  from being brutally assaulted prior to or after being shot.

Ms Mopipi said although the allegations were supported by Dr Bitoma Toto Amisi who observed the postmortem on behalf of the Namibian government, he later admitted under cross examination that injuries on the deceased’s faces could have been caused by impacts such as falling and hitting the hard surface of the canoes.

“It is worth  noting that this court is confronted with postmortem reports from the pathologist who actually conducted the autopsy on the four bodies and the medical doctor who observed the process. I must emphasise that inquest proceedings have very serious consequences and therefore whatever evidence brought before court must be produced by persons of right qualifications particularly postmortem report that court has to rely upon,” she said.

Stressing that qualifications of experts was crucial in determining the credibility of  reports, the magistrate said upon assessment of both experts, she was inclined to adopt reports submitted by Dr Kaelo Pansira Mabaka,  a qualified pathologist.

A closer look at the other report indicated that Dr Amisi was not a qualified pathologist and his testimony was befuddled by issues outside expert opinion, said Magistrate Mopipi. Ends