Fishrot plea process must continue, judge orders

The court dealing with the trial of the 10 men charged in the Fishrot fraud, corruption and racketeering case is obliged to proceed with the accused men’s trial.

This was said by acting judge Moses Chinhengo in a ruling delivered in the High Court at Windhoek Correctional Facility yesterday.

Chinhengo said until the court is directed to halt the trial, it is entitled and obliged to proceed with it in the interest of the administration of justice.

He also remarked that it may be that in one of the court applications that some of the accused say they want to pursue, it will be directed that the trial should be halted, but until that happens the court has to continue with the trial.

“Generally speaking, the main criminal trial shall continue,” Chinhengo ordered at the end of his ruling.

He also ordered that the taking of pleas on the charges against the accused will resume on Monday next week (2 September).

Plea proceedings started before Chinhengo in December last year, but were interrupted by a failed application for the judge to step down from the case, followed by an unsuccessful application for legal questions to be recorded and referred to the Supreme Court to be decided.

Chinhengo was informed on 16 August that the state and only one of the defence lawyers involved in the trial, Milton Engelbrecht, are ready to proceed with the matter during the rest of this year.

Four of the accused – former attorney general and justice minister Sacky Shanghala, James Hatuikulipi, Ricardo Gustavo and Pius Mwatelulo – do not have legal representation at this stage.

They have informed the court that they reckon they will be ready to proceed with the trial between April and August next year, or in the case of Hatuikulipi only by January 2026.

Chinhengo said in his ruling that at the stage in which the trial is now, “there is no irreparable prejudice that will be occasioned to the accused persons where they are called upon to plead to the remaining charges, more so if the plea is a not guilty one”.

He added it should be remembered that three of the accused – former National Fishing Corporation of Namibia (Fishcor) chief executive Mike Nghipunya, Otneel Shuudifonya and Phillipus Mwapopi, who are all represented by Engelbrecht­ – have been ready to proceed with the trial.

“Their interest in the finalisation of the case must be taken into account and balanced against the position of their colleagues who would want a long delay to the continuation of the trial,” Chinhengo said.

He also recorded that Shanghala, Hatuikulipi and Mwatelulo have informed the court they want the plea proceedings to be halted until they have obtained legal representation and several applications that they intend to file in the High Court and a review application and petition to the Supreme Court have been finalised.

The intended High Court applications include a question on whether the court dealing with their criminal case is a competent court as envisaged in the article of the Constitution that guarantees the right to a fair trial.

Shanghala, Hatuikulipi and Mwatelulo have also indicated that they want to ask the High Court to decide the legality and admissibility of evidence gathered by the Anti-Corruption Commission, which they claim was collected through an unlawful investigation.

On the fact that Shanghala, Hatuikulipi, Gustavo and Mwatelulo are not represented by defence lawyers at this stage and that they say they are not able to pay for lawyers’ services, Chinhengo remarked that his court or another court would have to consider an application to compel the government to pay for their legal representation when such an application is made.

However, the court cannot impose legal representation or assistance on an accused when it is his right and within his power to apply to the court for such assistance, but he neglects to do so, Chinhengo said.