The accused in the Fishrot fraud, corruption and racketeering case are not being treated equally, former justice minister and attorney general Sacky Shanghala is claiming.
Shanghala makes this allegation in a sworn statement filed at the Windhoek High Court in support of an application for three of the accused in the Fishrot case to stand trial separately from their co-accused.
Shanghala, former National Fishing Corporation of Namibia (Fishcor) board chairperson James Hatuikulipi and Pius Mwatelulo filed an application to have their trial separated from that of their co-accused at the end of last week.
A separation of trials will enable him, Hatuikulipi and Mwatelulo to receive a fair trial after they have secured legal representation, and it will allow the state and the other accused in the matter to proceed unhindered with a separate trial, Shanghala says in his affidavit.
Shanghala, Hatuikulipi and Mwatelulo have been without legal representation since December last year, after they were unable to raise money to pay the lawyers who were representing them since their arrest in November 2019 to also conduct their defence during their trial.
In his affidavit, Shanghala repeats several points that he made in an address to acting judge Moses Chinhengo in December last year, before the judge directed that plea proceedings in the matter should start.
Shanghala says he, Hatuikulipi and Mwatelulo have repeatedly reminded the court that they need legal representation during their trial, and Chinhengo has in a number of judgements delivered this year expressed sympathy with their need to be represented by lawyers.
However, despite his expressions of sympathy, the judge has never postponed the case to enable them to make efforts to obtain funding to afford the legal representation they need, Shanghala says.
He also says he, Hatuikulipi and Mwatelulo are not to blame for the situation in which they do not have defence lawyers representing them.
A “ruinous and repressive” property restraint order in terms of the Prevention of Organised Crime Act was issued by the High Court in November 2020, and this order affects their entire estates.
Sacky Shanghala
Some of their co-accused – including former Fishcor chief executive Mike Nghipunya, Otneel Shuudifonya and Phillipus Mwapopi – have been treated differently and are not affected by the property restraint order, Shanghala adds.
Nghipunya, Shuudifonya and Mwapopi, who are represented by defence lawyer Milton Engelbrecht, have indicated that they are ready for their trial to proceed, and they will be denied the right to a speedy trial if he, Hatuikulipi and Mwatelulo try to halt the taking of pleas while they do not have legal representation, Shanghala says.
Without legal representation, he, Hatuikulipi and Mwatelulo have not been able to consider and prepare plea statements or other pleas, instead of straight pleas of not guilty or guilty, that they can offer on the charges they face, he also says.
If a separation of trials is not ordered, the right to a speedy trial will trump the right to receive a fair trial, and the accused who have legal representation will be favoured over the accused without legal representation, Shanghala claims.
A separation of trials will enable the unrepresented accused to continue with efforts to get legal representation and protect their right to a fair trial, and will also ensure the equal treatment of all the accused in the matter, according to Shanghala.
Chinhengo yesterday postponed the case to today, after he was informed that the first accused in the matter, Ricardo Gustavo, who was not present in court after he was admitted to a hospital last week, was expected to be discharged yesterday.
He is prepared to deal with the application for a separation of trials as speedily as possible, Chinhengo said.
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