The criminal justice process and the Fishrot trial

Normally, the criminal justice process starts and ends at specific points, with a series of steps that must be followed chronologically until the process is concluded.The criminal justice process begins when an alleged crime is reported to the authorities. From the moment a person is suspected of committing a crime, criminal law and procedure come into effect, prescribing the exact steps that may be taken to ensure the accused person is punished or discharged.The police are tasked with investigating the alleged offence and determining whether there is sufficient admissible evidence to indicate the guilt of the accused and to justify instituting a prosecution.Once an investigation is concluded, a case summary is forwarded to the Office of the Prosecutor General (PG).The PG then decides whether to prosecute. If the accused is arraigned, the pre-trial stage begins. The State bears the burden of proving beyond a reasonable doubt that the accused person is guilty.If an accused person is kept in custody while awaiting trial, the court has a duty to objectively assess whether the accused is a suitable candidate for bail or if there is a risk that they may not appear for trial.If the prosecution is ready to proceed, the trial should commence without delay.If the court finds the accused guilty, it must then decide on the appropriate penalty. Fishrot trial marked by unending delays Strangely, in the Fishrot case, the accused appear to have become the masters of the suit (dominus litis), as the delays in starting the trial suggest they may have overtaken the prosecuting authority, thereby prejudicing themselves.The trial should have started and concluded long ago, but instead, they engage in filing unending applications for various forms of relief, without success. This situation is capable of reversing the criminal justice process, as the State seems at a crossroads in deciding whether to proceed with the trial or submit to delaying tactics employed by the accused persons.Such delaying tactics defeat the purpose of the provisions of Article 12 of the Namibian Constitution that provides that a trial should take place within a reasonable time, failing which the accused person shall be released.If regard is to be had to such provisions – particularly those under the Bill of Rights – one would infer that the delay in commencing and finalising the trial flies in the face of the provisions which state that the dignity of all persons shall be inviolable, that respect for human dignity shall be guaranteed and that no person shall be subjected to cruel, inhuman or degrading treatment or punishment.But what if a person is inflicting the pain and suffering upon themselves?Only two options remain: either the accused persons should be released or the prosecution must strive to finalise the case without further delays, as the delay defeats the purpose of the trial. It is saddening that the Fishrot accused have been incarcerated since 27 November 2019 – five years and five months of prolonged and harsh pre-trial anticipation.The continued postponement contravenes international legal instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR), both of which Namibia has ratified.Therefore, the continued detention and delay in starting the trial are inexplicable and undermine the criminal justice process.*Lucas Tshuuya is a legal practitioner from Onaanda in the Uukwambi district. tshuuya@iway.na.

The criminal justice process and the Fishrot trial

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Namibian Sun 2025-05-01

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The criminal justice process and the Fishrot trial

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Namibian Sun 2025-05-01

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