The Prosecutor General Martha Imalwa says if need be, the local Fishrot accused and the Icelandic Fishrot accused may be prosecuted in separate trials.
Imalwa says this in her answering affidavit to the one deposed of by Tamson Hatuikulipi on behalf of the other six accused in the Fishrot scandal.
Tamson, his father-in-law former fisheries minister Bernhardt Esau, James Hatuikulipi, former justice minister Sacky Shanghala, Ricardo Gustavo and Pius Mwatelulo are fighting the asset restraint order sought by Imalwa.
In his affidavit, Tamson argued that there was no guarantee that the whistleblower Johannes Stefansson was coming to Namibia to be a state witness.
Tamson also said that Stefansson was afraid that if he comes, he would be arrested for complicity to the alleged crimes.
He also called on the court to dismiss Imalwa’s application for an asset restraint order.
But in her affidavit dated 30 September 2021, Imalwa says there are no obstacles to charging the accused and bringing them to trial.
She argues that the claim that the accused persons may not be charged with common purpose in two different trails is not correct because there is no such rule.
“If needs be,” Imalwa says, “the local defendants and the Icelandic defendants may be prosecuted in separate trials.”
She also dismisses Tamson’s claim that the attempts to extradite the Icelandic defendants would cause undue delays.
The delays, she argues, is an issue for the trial court that may order the to proceed without the Icelandic defendants if it would otherwise be delayed in violation of the Constitutional rights of the local defendants.
“This point is unfounded and the allegations that the restraint of property application must be dismissed on this point, is without any merit and should be dismissed with costs, the costs of one instructing and two instructed counsels,” Imalwa says.
In addition, Imalwa says Tamson did not provide basis for his contention that Stefansson’s evidence will be rejected if he is cross-examined.
“The defendants had the opportunity to place evidence before the court that would support their contention that his evidence will be rejected. They, however, failed to do so,” she further says.
Imalwa also says that Tamson failed to establish on what fact they rely on in contending that Stefansson would not come to Namibia to testify in the criminal matter.
The correct facts, she explains, are that Stefansson has indicated that he will testify and confirmed this recently in an email dated 31 August 2021 to Erna van der Merwe the deputy director general of the Anti-Corruption Commission.
“The prosecutor in the criminal matter will determine the status of Mr Stefansson. The relevance of what was stated in the bail proceedings by the ACC investigators does not determine Mr Stefansson’s status in the criminal matter.
THE RESTRAINT ORDER
Imalwa says that the court will need to be satisfied that it appears on the face of it from the application that there are reasonable grounds for believing that a confiscation order may be made against the defendants.
She also says it is inappropriate to suggest that disputes about the merits of the criminal case should be addressed and resolved before a confiscation order is made.
Tamson raised constitutional issues in the Prevention of Organised Crime Act citing sections 24 and 25.
He also sought a declaratory order on the constitutionality of the provision of legislation but Imalwa dismisses this saying that it is improper to seek such an order in an answering affidavit.
The PG further says that if Tamson wanted to raise constitutional matters, he should have made a proper application.
“It is respectfully submitted that the constitutional attack is, in any event, unfounded because it is based on a false premise,” she argues.
According to Imalwa, Tamson appears to confuse criminal confiscation which is under chapter 5 and civil forfeiture under chapter 6 of POCA.
“Chapter 6 provides for the forfeiture of the instruments and proceeds of crime. It is an entirely civil process which is not dependent on any criminal prosecution. It permits me to apply for the preservation and ultimately for the forfeiture of ant assets which have been used as the instruments of crime or which are the proceeds of crime,” she explains.
In case of Chapter 5, she says, the purpose is to strip person who have been convicted of criminal offences of the financial benefits they derived from their crimes.
“It is, in other words, dependent on a criminal prosecution and conviction. Once there a conviction, the purpose of confiscation orders is to deprive the convicted criminals of the benefits they derived from their crimes and not merely of the instruments and proceeds of those crimes,” she argues.
Explaining section 24(1)(b) of POCA, Imalwa says the court must make a restraint order against someone who is or is to be prosecuted for an offence if it appears to the court on the face of it from the application that there are reasonable grounds for believing that a confiscation order maybe made against that person.
About section 25(2), Imalwa says a restraint order may be made for the restraint of any realizable property including that of any third party to whom the defendant has made affected gifts.
“These are legitimate and perfectly constitutional mechanism designed to serve legitimate ad constitutional objectives. The defendants’ premise that they fall beyond the scope and purpose of POCA is thus unfounded,” she says.
