By: Wonder Guchu
An English barrister Edward Henry says Iceland can refuse to extradite her own citizens to stand trial in Namibia over Fishrot allegations until far greater clarity has been provided by the prosecutor general.
The Prosecutor General Martha Imalwa wants to extradite three Samherji managers – Ingvar Júlíusson, Egill Helgi Árnason and Adalsteinn Helgason to stand trial for the Fishrot Scandal.
Henry, who says he was called to the English Bar in 1976, is responding to Imalwa’s affidavit regarding the extradition of the Icelandic managers.
His affidavit is dated 21 September 2021 and was notarized in London, England.
Henry says he was shown the affidavit by Imalwa by Wikborg Rein, the solicitors acting for the companies and who are also advising Ingvar Júlíusson.
He says that he was asked to comment as an expert on certain passages of Imalwa’s affidavit, although he admits that he is not an expert in the laws of Namibia.
His comments, he said, relate to general questions about restraint or confiscation orders, to extradition and European arrest warrants and the European Convention on Human Rights.
Imalwa says in her affidavit dated 10 September 2021 that it was common cause that an extradition process could not commence without an indictment.
She also says that the arrest warrants for the three mangers have been authorised but they cannot be executed because the directors are not in Namibia and steps are being taken to determine their whereabouts and ensure they are made available to Namibia.
According to Henry, under Article 1 of the European Convention on Extradition, it is not necessary to start extradition proceedings after an indictment under European Convention on Extradition.
Namibia, however, is not a signatory to this Convention, which according to Henry could be problematic.
“I cannot see the Crown Prosecution Service in England or any of the member countries of the European Convention on Extradition being able to progress a Namibian request to extradite an individual, assuming he is in the jurisdiction, based on the information she (Imalwa) deposes to in her affidavit,” Henry says.
If Namibia was party to the European Convention of Extradition, Imalwa was supposed to request extradition in writing and communicated through diplomatic channel.
The request shall be supported by the original or an authenticated copy of the arrest warrant and a statement of the offences for which extradition is requested.
In addition, the request should also state the offences for which extradition is requested, time and place of the commission of the crime, the legal descriptions and a reference to the relevant provisions.
To be included too in the request is a copy of the relevant provisions, a statement of the relevant law together with any other information that will help to establish the identity and nationality.
Henry says there is no way that a request for extradition can be done made for the sake of investigation.
“It is clear from the Prosecutor general’s affidavit; indeed, she specifically says that she does not know where the directors are – so that one cannot attempt to identify the jurisdiction to be requested for their extradition,” Henry says.
According to Henry, what Imalwa says about defendants 17 to 22 joining in the pending proceedings once the whereabouts of their directors is impossible since these are companies.
The companies are Esja Holdings, Mermaria Seafood Namibia, Saga Seafood, Heinaste Investment Namibia, Saga Investment and Esja Investment.
Henry says the Namibian law on extradition might be fundamentally different to that in other jurisdiction but there may be a confusion between the legal status of the companies and their directors as individuals.
“The individuals and the companies are separate legal persons and although in England a company may be held liable in criminal law for something done by it, for example the payment of a bribe, through the agency of a person who is found to be its directing mind and will, the criminal act is that of the company. The individual could be separately liable personally for the same offence, but they are separate defendants,” Henry says.