Fishrot accused refuse to plead

Three Fishrot-accused persons have pleaded with the Windhoek High Court to release them in order to allow them adequate opportunity to prepare their ‘master defence’ against charges that could see them being locked up for a long time.

Former justice minister Sacky Shanghala said the Namibian judiciary system has financially stripped him and his co-accused in order to make sure they will not be in a position to defend themselves adequately.

Despite losing a lot of weight, Shanghala was lyrically on fire yesterday - displaying his trademark eloquence, which he often described as 'verbosity' - as he pleaded his innocence and alleged maltreatment by the system he helped build.

Prior to the shocking emergence of the Fishrot bribery scandal in the twilight of 2019, which got him and nine others arrested, Shanghala was a lawmaker and – before that – chairperson of the Law Reform and Development Commission (LRDC).

Yesterday, he confronted the justice system, adopting a style similar to a wordsmith reciting a Shakespearean poem, emphasising the gravity of their financial predicament which has rendered them without legal representation.

His co-accused Ricardo Gustavo once likened their situation to a boxing match in which one party – the accused – have their hands tied behind their backs while the opponent can punch freely.

Shanghala may not have used the boxing ring metaphor yesterday, but he painted a similar scenario due to their assets being frozen as part of the criminal investigation into their conduct.

“We deny being involved in any unlawful or criminal conduct,” he told a packed courtroom.

Not ready

The accused were set to plead to the charges yesterday, but they informed Judge Moses Chinhengo that they were not ready to pronounce themselves just yet.

“A simple plea of ‘not guilty’ may not suffice to ensure that our defence will prevail. We need to be advised on the terms of the pleas we should tender to best protect ourselves,” Shanghala, a trained lawyer, said.

“In fact, due to some propositions such as those relating to the lack of authority on the part of the investigative agency in this case and non-compliance with its own legislation, we would need the guidance of forensic trial litigation experts to investigate whether these charges can be quashed,” he said.

In an application brought last year, the accused claimed that the Anti-Corruption Commission (ACC) had no power to investigate the money-laundering and racketeering charges against them, and that it had instead tried to fool the court that these were all corruption crimes.

Fear or favour?

Shanghala highlighted several obstacles he believes undermine the judicial process in the Fishrot case, including the appointment of 68-year-old Zimbabwean-born acting High Court judge Chinhengo.

President Hage Geingob appointed Chinhengo in September, and he was immediately assigned to the Fishrot matter.

Shanghala pointed out that the Namibian Constitution states that all judges, except acting judges, are permitted to hold office until the age of 65, but the president is entitled to extend the retiring age of any judge to 70.

“You are not a Namibian citizen. This means that your appointment is a fixed-term contract,” he told Chinhengo.

“On the basis of Article 82, your appointment will terminate when you turn the age of 70. A judge should fearlessly pursue justice without fear or favour. Now, either the court forces or enters a plea on my behalf and the trial starts, or it restarts again either when you reach the age of 70 or cannot continue or because the president does not appoint you.

“It would appear that the appointment is on a fixed-term [basis], specifically for this criminal case,” he said.

Additionally, Shanghala pointed out that the legal aid department in the justice ministry, which he headed until his arrest, is headed by Patience Daringo, who too is Zimbabwean-born - a situation the disgraced former minister believes may hinder impartiality and fairness in their case.

Couldn’t be clearer

According to Shanghala - who was representing himself, as were his co-accused James Hatuikulipi and Pius Mwatelulo - it will take them at least six to eight months to read the 148 000 pages and disclosures, as well as the 6 925 pages of the Prevention of Organised Crime Act (POCA) restraint application.

Their assets were seized under Section 25 of POCA, including their bank accounts that were already frozen in 2020, rendering them incapable to pay their lawyers.

Shanghala and his Swapo comrade and former fisheries minister Bernhardt Esau had at one point asked government to foot their legal fees, arguing that they were charged for activities undertaken in their official capacities as cabinet ministers.

Shanghala extensively quoted the Namibian Constitution to emphasise how their rights, chiefly the right to a free and fair trial and property rights, were allegedly violated by the judicial system.

“These rules could not be any clearer, and if the honourable court continues like the Deutsche Bahn system, it will be this indifference which will be the Vaseline to gradualism into the abyss of regressive jurisprudence, which not even apartheid Namibia can compare with,” he said.

“In the premises, it is with respect that this honourable court must ensure that we are granted the full measure of the right to adequately prepare for trial and during trial.”

Ready or not

Chinhengo has, however, denied the Fishrot accused their demands and postponed the proceedings to today, when they are expected to enter their pleas in response to the litany of charges propped up against them – whether they are ready or not.

These charges include bribery, money laundering, tax evasion and racketeering.

Dubbed the Fishrot scandal, the matter relates to allegations that Icelandic fishing company Samherji paid hundreds of millions to high-ranking politicians and officials in Namibia with the objective of acquiring the country's coveted fishing quotas.

The accused are said to have benefitted to the tune of over N$300 million.

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