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The Lifumbela case stems straight from the High Treason Trial, Namibia’s longest and – probably – most expensive judicial saga. In S v Lifumbela, the Supreme Court of Namibia had to settle an appeal against the convictions and sentences of 30 accused implicated in the High Treason Trial. Despite the big stakes involved in this matter, the apex court did not manage to rise to this once-in-a-lifetime occasion and seize this historic moment.

By confirming that the appellants committed high treason, murder, and attempted murder on the basis of conspiracy (i.e., an incomplete crime), the Namibian Supreme Court upended the principles of criminal law on participation and incomplete offenses. All the parties to the case – the state and the defense attorneys alike – all posited and argued that the trial judge’s guilty verdict rested on the doctrine of common purpose, but the Supreme Court persisted in holding that the trial judge passed the verdict based on conspiracy. Strangely, the appeal court treated conspiracy more like common purpose, i.e., more like a liability principle, than a distinct and specific substantive crime. In holding so, the Supreme Court pulled down the wall separating the principles regulating participation from those defining incomplete crimes, thereby introducing in Namibian criminal law an anomaly and a bad precedent.