Prosecution seeks delay in Fishrot trial pending ruling on constitutionality of acting judge’s appointment

The prosecution wants court proceedings in the Fishrot fraud, corruption and racketeering trial to be kept on hold until a separate case about the appointment of the trial judge has been decided.

Deputy prosecutor general Ed Marondedze informed acting judge Moses Chinhengo in the High Court at Windhoek Correctional Facility yesterday that, in the state’s view, it would be better not to continue with further court proceedings in the trial, until an application about the constitutionality of Chinhengo’s appointment as an acting judge has been decided.

Marondedze said it would be prudent to wait for the outcome of the case in which Chinhengo’s appointment is being questioned, because if that application is successful, trial proceedings that have taken place before Chinhengo would become a nullity.

Three of the 10 men charged in the Fishrot case – former attorney general and minister of justice Sacky Shanghala, James Hatuikulipi and Pius Mwatelulo – have filed an application in the Windhoek High Court about the constitutionality of Chinhengo’s appointment as an acting judge.

Shanghala, Hatuikulipi and Mwatelulo want the court to set aside president Hage Geingob’s decision in April last year to appoint Chinhengo as an acting judge of the High Court with effect from 18 September last year.

They are claiming that, according to the Constitution, the president may not appoint a person who is older than 65 years as an acting judge, and that Chinhengo was 67 years old at the time of his appointment.

Their claim that Chinhengo’s appointment was unconstitutional is based on an article of the Constitution that reads: “All judges, except acting judges, appointed under the Constitution shall hold about office until the age of 65 but the president shall be entitled to extend the retiring age of any judge to 70 provided that non-Namibian citizens are appointed as judges under a fixed term contract of employment.”

Shanghala, Hatuikulipi, Mwatelulo and the other accused in the case were back in court before Chinhengo yesterday for the hearing of an application for a separation of trials.

Shanghala, Hatuikulipi and Mwatelulo, supported by one of the other accused, Ricardo Gustavo, gave notice at the end of August that they will be asking Chinhengo to order that their trial should be held separately from that of the other accused in the matter.

The application for a separation of trials is based on the fact that Shanghala, Hatuikulipi and Mwatelulo – and also Gustavo – do not have legal representation at this stage.

In a sworn statement filed at the court, Shanghala says he, Hatuikulipi and Mwatelulo face serious and complex charges, there is a prospect that long prison terms could be imposed if they are convicted, and they want to have legal representation during what is expected to be a lengthy trial.

Once a separation of trials has been ordered, the trial of the other accused can continue unhindered and without delay while he, Hatuikulipi and Mwatelulo continue with efforts to secure legal representation for themselves, Shanghala says in the affidavit.
Shanghala also informed the judge yesterday that he, Hatuikulipi and Mwatelulo have filed an application in which they are asking Chinhengo to order that their trial should not take place in the High Court at Windhoek Correctional Facility.

They are claiming that the courtroom in which they have been appearing before Chinhengo does not have adequate facilities, such as tables, electricity points for laptop computers, Wi-Fi access and chairs with backrests, for them to properly conduct their defence.

This is violating their constitutional right to a fair trial, they are alleging.

Shanghala, Hatuikulipi and Mwatelulo have also filed a separate application to stop their trial from taking place in the courtroom on the grounds of Windhoek Correctional Facility as a civil case in the High Court. That application is pending before judge Shafimana Ueitele.

Chinhengo said he will give a ruling on the requests to halt trial proceedings and to change the trial venue on Monday next week.