Fishrot: Tempers flare as judge enters ‘not guilty’ verdicts

Judge Moses Chinhengo on Friday took a hard-line stance in the Fishrot trial by entering a ‘not guilty’ plea for all the accused persons in the matter, after many refused to plead without legal representation.

In an extraordinary move, Zimbabwean-born Chinhengo applied Section 109 of the Criminal Procedures Act, which says where an accused in criminal proceedings refuses to plead to any charge, the court shall record a plea of 'not guilty' on behalf of the accused, and a plea so recorded shall have the same effect as if it had been actually pleaded.

Those whose pleas were pronounced by the judge include James Hatuikulipi, who told the court that he is unable to plead because he is now being forced to ‘tick boxes’.

The judge entered similar pleas for former justice minister Sacky Shanghala, Pius Mwatelulo and Ricardo Gustavo, and pointed out that the men are protected by the Namibian Constitution and cannot be pronounced guilty before trial.

Former fisheries minister Bernhardt Esau's lawyer Florian Beukes has not been available as he is on sick leave, prompting his co-counsel in the matter, Mbanga Siyomunji, to argue that it was not right for accused persons to plead in the absence of their legal counsel as they may suffer prejudice.

“The court is saying ‘if you do not do this, then I will do that’. We are saying an inability is not yes or no – the court must respect his [Esau’s] rights. We are bringing a recusal application to the court and it will be filed by the end of the day.

"The same way the court is entitled to make a decision, the accused person also has a right and the court cannot bulldoze him.

“We are saying on record that [this plea] is the court’s decision, not our client’s,” Siyomunji told the judge during a heated exchange.

‘Trampling on constitution’

Having none of it, Chinhengo told Siyomunji that he was free to bring any application, and that he is in no way bulldozing the accused into pleading as he was following a due process in law.

“I have not bulldozed him. I have entered a plea of not guilty because he is unable to plead,” the judge said.

This caused much consternation, including what some may consider xenophobic attacks on the judge, whom Esau branded ‘a foreigner’, while James Hatuikulipi insinuated that Chinhengo was 'trampling' on the constitution.

“In terms of me admitting or denying into evidence this very charge [racketeering], I will do a disfavour, a disservice to myself. Hence I say I am not, in fact, admitting into evidence this very charge,” Esau remarked.

He added that he cannot enter anything that is irregular and erroneous into evidence.

“Fishing quotas are not awarded by the fishing minister. They are applied for and then evaluated and recommended and the minister is not in that very chain,” he said.

“In the absence of legal counsel, I am not pleading any guilt. I want to state categorically clear that I have not committed a crime of money laundering."

Ticking boxes

When presented with the charge of racketeering by state prosecutor Ed Marondeze, James Hatuikulipi insisted that he is unable to plead because he being forced to ‘tick boxes’.

“The Namibian Constitution should protect me,” he said.

Shanghala also questioned the application of Section 109 by the judge to plead on behalf of accused persons.

However, in the end, all the accused pleaded not guilty – voluntarily or through the judge - to all the charges they face.

The trial will continue tomorrow morning.

[email protected]