Fishrot bail strategy revealed
24 January 2020 | Justice
Another possible strategy, observers say, is to wait for public anger to subside because it would be nearly impossible to grant them bail at the height of the ongoing public furore.
Since their arrest on 27 November, the so-called Fishrot Six, including former cabinet ministers Sacky Shanghala and Bernhardt Esau, have not yet exercised their constitutional right to apply for bail.
Yet, many attempts have been made to secure their release from custody – but through other means than bail.
So far the six men – the other four being Esau's son-in-law Tamson Hatuikulipi, his cousin James Hatuikulipi, Ricardo Gustavo and Pius Mwatelulo – have launched legal attacks on the validity of their arrest and incarceration.
Esau, who was the first to be arrested, had secured temporary release after it was ruled that his arrest was not procedural, but authorities went back to the drawing board to follow the correct procedures and rearrested him together with his cohorts.
Curiosity over the accused's reluctance to apply for bail intensified a fortnight ago when Shanghala's employee, Nigel van Wyk, who also faces charges related to the Fishrot corruption case, abandoned his bail application that had been scheduled for 10 January.
The reason given to the court was that Van Wyk could not afford a lawyer to argue his case.
In December, the six accused approached the High Court with an application to have their case thrown out on an urgent basis. The court ruled that their matter was not urgent, prompting the six to approach the Supreme Court.
Legal experts this week told Namibian Sun that not applying for bail was a strategy by the six to protect details related to their alleged crimes.
“A bail application means that they have to stand in the dock and be actually questioned about the charges and the allegations by the prosecutor,” said a local lawyer, who preferred anonymity.
“That would be about two to three weeks of examination and cross-examination. It would bring out facts and allegations that would be good food for the media, which they are trying avoid.
“The evidence they give there [in court] remains on record and even if they get bail, they can never move away from what was said at bail application during trial. So they first want to see if they can exhaust all other avenues before a bail application,” the lawyer added.
Another lawyer said: “They may have skeletons that they don't want to expose. It is really bad.”
Another legal expert said the six men were delaying the bail application to allow public anger to wane.
“Given the heightened public attention, the prosecution may argue against bail. So they did well to wait for things to cool down, public protests to subside and investigations to be completed,” he said.
“So they want to challenge the basis of the arrests and conduct; all these technicalities that would not only secure their release but also undermine the charges. It also distracts the ACC and prosecution from the merits of the case if they have to deal with all these applications.”