Former fisheries minister Bernhard Esau’s bid to have the Windhoek High Court order his release from custody failed Sunday when judge Hanellie Prinsloo postponed the matter to 26 Nov.
Esau was arrested in Windhoek on Saturday in connection with a corruption case that involves N$150m in bribe money paid by an Icelandic fishing company, Samherji, between 2014 and 2018. The money was in exchange for fishing quotas.
The Anti-Corruption Commission is investigating allegations of corrupt practices, money laundering, and fraud in relation to the awarding of quotas to a Namibian business entity, Namgomar Pesca (Namibia) Pty Ltd and several other persons and entities in Namibia, Cyprus, Iceland, Angola, Norway, Mauritius and the United Arab Emirates.
The former minister is accused together with former justice minister Sacky Shanghala, former Investec Namibia managing director James Hatuikulipi and his cousin Tamson Fitty Hatuikulipi, who is also Esau’s son-in-law.
The other two are the suspended Investec manager Ricardo Gustavo and Fishcor chief executive officer Mike Nghipunya.
Gustavo, who was arrested together with Esau and Saturday, did not seek any court relief and he is currently in custody.
Shanghala, James and Tamson had not been arrested by Sunday afternoon although warrants of arrest were issued against them.
The Anti-Corruption Commission has said they are hunting for the three who are believed to be in Cape Town, South Africa, where they own properties.
Esau’s lawyer, Appollos Shimakaleni, told Eagle FM Sunday that his client was being held at Otjomuise Police Station.
UNLAWFUL WARRANT OF ARREST
Esau further said that a warrant of arrest issued under Section 43 of the Criminal Procedure Act shall direct that the person described in the warrant shall be arrested by a police officer in respect of the offence set out in the
warrant and that he should be brought before a lower court in accordance with the provisions of section 50.
Such a warrant of arrest, he said, may be issued on any day and shall remain in force until it is cancelled by the person who issued it or, if such person is not available, by any person with like authority, or until it is executed.”
According to Esau, an ACC officer can only arrest a suspect without a warrant of arrest any person whom he/ she reasonably suspects has committed or is about to commit an offence under the section 28 Section 43 of the Criminal Procedure Act (CPA).
“The ACC investigators may not execute a warrant of arrest as they are not peace officers as contemplated by the CPA nor have, they been declared peace officers in terms of section 334 (1) of the CPA. In terms of section 44 of the CPA only a peace officer may execute a warrant of arrest,” he further argues.
ILLEGAL ARREST
Esau said that his liberty was taken away through a completely invalid process and according to Article 25(2) and (3) of the Namibian Constitution, he has reasons to approach the Court on an urgent basis seeking an interim relief from continuous invasive and intrusive detention on the basis of an invalid warrant and consequentially an invalid arrest and detention.
He further said that considering the facts of the case, he has a strong case at common law since he was detained on the basis of a warrant of arrest applied for by a functionary that does not have jurisdiction and competence to apply for a warrant of arrest from the Magistrate of Windhoek.
There are several other bases why the warrant is invalid, Esau said, and was able to demonstrate not only prima facie right but a strong case in respect of a right that is worthy of protection pending the return date.
“As stated above, there was absolutely no reason for me to be arrested. There is no evidence or reason to fear that he would have jeopardised a police investigation in any way if he was not arrested,” he said.
Esau added that the arrest was not necessary given the importance of the right to liberty and the presumption of innocence.
If he stayed in custody, the former minister said, he would suffer grave and irreparable harm because of his age and the position that he had.
He said that the Court has a reservoir of powers to hear such cases of deprivation of liberty and freedom on an urgent basis and to grant interim relief both as a constitutional remedy under Article 18 and Article 25(2) and (3) of the Namibian Constitution, and at common law.
In addition, Esau stated, efforts made by his lawyers on Saturday to find a Magistrate to order his release on bail were fruitless thereby causing continuous invasive, intrusive and irreparable harm on his rights to liberty, freedom of movement and dignity.
COURT APPLICATION
In his court papers, Esau has cited the Magistrate of Windhoek, the ACC, the investigating officer Andreas Ndeshipanda Kanyangela, the Prosecutor General of Namibia, the police Inspector General and the Otjomuise station commander.
Esau argues that the warrant of arrest used to detain him was unlawful.
He also said that the ACC investigators had no power or authority in law to investigate money laundering, only a lawfully designated member of the Namibian Police Force may investigate money laundering in terms of section 83 of the Prevention of Organised Crime Act 29 of 2004.
He accuses the Magistrate of Windhoek for issuing a warrant of arrest for corruption to the ACC where no specific charges are laid out in terms of the law.
“In terms of the warrant, the applicant is arrested for ‘corruption’. It is not stated in terms of which provision of which legislation, nor are there any description of the alleged offence in the warrant,” he argued.
According to Esau, the relevant statutory, Section 43 of the Criminal Procedure Act says that there should be a “written application of an attorney-general, a public prosecutor or a commissioned officer of police that:
- sets out the offence alleged to have been committed;
- alleges that such offence was committed within the area of jurisdiction of such magistrate or, in the case of a justice, within the area of jurisdiction of the magistrate within whose district or area application is made to the justice for such warrant, or where such offence was not committed within such area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within such area of jurisdiction;
- and that from information taken upon oath there is a reasonable suspicion that the person in respect of whom the warrant is applied for has committed the alleged offence.
Esau said that the arresting officer did not make any allegations that he feared that he would run away because he has 13 substantial assets in Namibia; his family is in Namibia, and his children are in Namibia.
“Based on the above, it is evident that the ACC investigators are not authorised by section 43 to apply for a warrant of arrest and that the warrant does not state the offence committed.
“The allegation that the offence is “corruption” is nonsensical because the there is no offence of corruption in the Act. 25,” he argued.
Prinsloo has refused to hear an urgent court application to have former fisheries minister Bernard Esau released from detention and have his arrest suspended
The judge ruled that the respondents need a fair amount of time to file their answering and opposition papers.
The judge has ruled that the papers will have to be filed by close of business on Monday with the replying papers filed on Tuesday.
The court will hear the matter on the same day at 11.30am.