Recusal dismissal paves way for Fishrot trial kick-off

Former justice minister Sacky Shanghala and co-accused James Hatuikulipi have failed in their bid to have the presiding judge in the Fishrot case recused, clearing the way for the long-delayed trial to start.

In a ruling delivered yesterday, acting judge Marilize du Plessis rejected arguments that the court was biased against the accused persons in the matter.

The two applicants, alongside several other accused, including former fisheries minister Bernhardt Esau, face more than 40 charges ranging from corruption and fraud to violations of the Prevention of Organised Crime Act and Anti-Corruption Act.

The duo argued that the judge had demonstrated bias through earlier rulings, including remarks suggesting some of the accused were employing delaying tactics and by allegedly treating parties unequally during proceedings.

They further claimed the court had mischaracterised previous applications, prejudged issues that may arise during trial, and even cited the judge’s relative inexperience as grounds for recusal.

However, the court dismissed the application on all grounds, emphasising that allegations of bias must meet the strict “reasonable apprehension” test.

“The facts upon which a reasonable person holds a reasonable apprehension of bias should be the correct and proven facts,” the court held.

Du Plessis found that many of the complaints were based on incorrect interpretations of proceedings or dissatisfaction with prior rulings, which do not constitute bias.

Fact-based concerns

Addressing criticism over remarks about delays, the court said its observations were factual rather than prejudicial.

The case, which has been on the High Court roll since 2021, has yet to hear its first witness, largely due to numerous interlocutory applications and related civil proceedings.

“The finding that the commencement of this case has been delayed is a fact, not a value judgement,” the ruling stated.

The judge stressed that courts are duty-bound to manage proceedings efficiently and cannot grant indefinite postponements without compelling justification.

The judge also rejected claims that the court applied different standards to the State and defence, noting that all parties were given opportunities to present arguments.

It found no evidence that the prosecution was unfairly favoured or that the accused were denied procedural rights.

Order

The application for recusal was dismissed in its entirety, along with a request to postpone the trial indefinitely pending assignment to another judge.

The ruling removes a significant hurdle in one of Namibia’s most complex and closely watched corruption trials, which involves multiple accused and entities, as well as hundreds of potential witnesses.

With the recusal bid now dismissed, the court is expected to proceed with trial preparations, potentially bringing the long-stalled matter closer to hearing evidence on the merits.

About Fishrot

The Fishrot scandal erupted in November 2019 following the leak of more than 30 000 documents – widely known as the Fishrot Files – that exposed alleged corruption in Namibia’s lucrative fishing industry.

At the centre of the allegations is Icelandic fishing giant Samherji, which is accused of paying millions of dollars in bribes to senior Namibian politicians and officials in exchange for preferential access to fishing quotas.

The scandal led to the resignation and subsequent arrest of high-ranking officials, including former ministers Esau and Shanghala, who quit Cabinet.

Prosecutors allege that those implicated received at least N$250 million in bribes, channelled through complex networks of companies and trusts, in what has been described as one of the largest corruption cases in the country’s history.

COLOURFUL: Former justice minister Sacky Shanghala. Photo: Rita Kakelo