By:Justicia Shipena
The defence lawyers representing six fishrot accused in a bail appeal application at the Supreme Court in Windhoek argued the continued detention of the accused is unlawful and prevents them from having a fair trial.
The six fishrot accusedconsisting of former justice minister Sacky Shanghala, former Investec managing director James Hatuikulipi, former Fishcor boss Mike Nghipunya, Otniel Shuudifonya, Pius Mwatelulo and Philipus Mwapopi on Tuesda appeared in the Supreme Court arguing against Judge Shafimana Ueitele’s decision to oppose bail.
On 1 April last year, Judge Ueitele dismissed the bail application by the six, concluding that they did not prove it would be in the interest of justice to grant them bail. In his view, the administration of justice would be prejudiced as the accused did not convince the court they would not abscond or temper with evidence if released on bail.
“The continued detention is unlawful because that is what section 61 says,”argued advocate Vas Sonis, a South African legal practitioner.
Advocate Soni argued that article 12 (1) (b) provides that a criminal trial must take place within a reasonable time, in which the accused shall be released.
“We submit that the right in 12 (1) (b) reinforces the right in article seven to liberty,” he said.
The defence team focused on merits such as the basis on which the applicants sought bail and on which it was opposed, the fundamental role that the High Court judge attributed ownership in the case, why the decision of the High Court judge is wrong, the approach adopted by the judge on the entire bail and the principle and misdirections or errors of law.
The advocate said it is unfair to require the accused to prepare for criminal trial whilst in detention and that affects their rights to a fair trial.
Advocate Soni also maintained that racketeering and money laundering are offenses that are created by the Proceeds of Crime Act (POCA).
This is the same argument he made during the bail application last year.
Last year, he also said that allegations that the Anti-Corruption Commission (ACC) investigator did not have the power to investigate have been made before, adding that the investigators are not police officers and that the ACC did not have powers to investigate money laundering matters.
“But the evidence collected with respect to racketeering and money laundering is inadmissible because it does not have the power. Money laundering offenses are investigated by the Namibian police but only by police officers designated in writing by the inspector general of the Namibian police, as shown in section 83 of POCA,”he said.
The accused are facing charges ranging from corruption, fraud, racketeering and money laundering.
He also presented before the court that the accused assets are subjected to a restraint order and thus have no assets.
“If they abscond then those assets will be lost, that is the consequence of the provisions of POCA,” he said.
Advocate Soni said his clients will plead not guilty once the trial commences.
“They will not plead guilty, they maintain they did not do any wrongdoing and they will stand trial,” he added.
In their heads of argument, the defence team set out that the decision of the High Court is wrong and that the court misdirected itself or created grave errors of law.
The hearing ended on Tuesday and the justices at Supreme Court have said once the judgement is ready the parties will be notified.
Fishrot Accused Await Supreme Court Appeal Ruling
