Fishrot accused want longer halt in trial

Three of the accused in the Fishrot case want proceedings in their trial to stay halted until the Supreme Court has given a ruling on a set of legal questions from them.

The three accused – former attorney general and justice minister Sacky Shanghala, his business partner James Hatuikulipi and Pius Mwatelulo – plan to ask acting judge Moses Chinhengo to record six “questions of law”, which should then be sent to the Supreme Court, with their next scheduled court appearance on 26 July.

The questions deal with decisions Chinhengo made during previous court appearances by the 10 men charged in the Fishrot case, when he directed that the charges against the accused should be put to them for their pleas to be taken, although some of the accused do not have legal representation at this stage.

Shanghala, Hatuikulipi and Mwatelulo are also questioning the legality of Chinhengo’s appointment as an acting judge of Namibia’s High Court.

Trial proceedings before Chinhengo started in December last year, when he directed that the state should start to put its charges against the accused.

However, proceedings came to a halt when one of the accused, Nigel van Wyk, applied for Chinhengo’s recusal from the case.

Chinhengo dismissed Van Wyk’s application for him to step down from the matter in March and in May also dismissed a request by Van Wyk to be allowed to appeal to the Supreme Court against his decision on the application for his recusal.

Van Wyk subsequently petitioned the Supreme Court in an attempt to be granted leave to appeal against Chinhengo’s decision on his recusal application.

When the 10 men charged in the case appeared before judge Herman January in the Windhoek High Court on Friday, because Chinhengo was not available, deputy prosecutor general Ed Marondedze informed the judge the Supreme Court has, in the meantime, dismissed Van Wyk’s petition.

The petition was refused by appeal judges Sylvester Mainga and Elton Hoff and acting judge of appeal Theo Frank on Thursday last week.
Chinhengo has kept trial proceedings halted as a result of Van Wyk’s attempt to get him to step down from the case.

In their application for questions of law to be recorded by Chinhengo and sent to the Supreme Court, Shanghala, Hatuikulipi and Mwatelulo are also asking the judge to keep plea proceedings in their trial halted until the Supreme Court has decided the legal questions on which they say they want a ruling.

One of the questions on which they want an answer from the Supreme Court is about whether their right to a fair trial is being impaired and violated by the fact that they are without legal representation in their criminal trial.

Shanghala says in a sworn statement filed at the court: “Without legal representation in a case of this magnitude, there can be no fair trial, even for me who has legal training.”

Shanghala is further claiming Chinhengo’s appointment as an acting judge was unconstitutional, because he is over the age of 65, which is the retirement age of permanently appointed judges in Namibia, unless their retirement age has been extended by the president.

In addition to that, Shanghala claims Chinhengo cannot continue to preside over the Fishrot case because he was appointed as an acting judge for the period from 18 September to the end of December last year and no announcement that he has been reappointed has been made in the Government Gazette this year.

The High Court Act states that the appointment of an acting judge continues during any period when the judge is engaged in disposing proceedings in which they have taken part as a judge.

According to Shanghala, though, the section of the High Court Act in which that is stated conflicts with the Constitution in respect of the retirement age of judges.

In an answering affidavit filed at the court, deputy prosecutor general Cliff Lutibezi alleges that Shanghala, Hatuikulipi and Mwatelulo are following the wrong procedure.

According to Lutibezi, their application for questions of law to be recorded and sent to the Supreme Court cannot be made at this stage of their trial, but should be made at the end of the trial.

The application they are making should be dismissed as it would only result in a further delay of the trial, Lutibezi says.