Staff Reporter
THE Namibian government has responded to an urgent application brought forth by Fishrot accused and former Namibian Minister of Justice, Sacky Shanghala, and two of his co-accused. They claim that the burglar bar cages at the Prison Court at the Windhoek Correctional Facility are inhumane and make them appear as dangerous persons. However, the state argues that the issue is moot, as the burglar bars have already been removed from the courtrooms at the facility.
In the application, Shanghala, James Hatuikulipi, and Pius Mwatelulo have brought a case against the Executive Director in the Office of the Judiciary, the Registrar of the High Court, the Minister of Justice, and the Prosecutor General. They state that their constitutional rights “not to be tortured or subjected to inhumane treatment” have been violated because they were prosecuted in a courtroom where they were kept behind burglar bar cages.
“The judge, the lawyers, the public, and the media only ever see the accused persons from behind the Spanish burglar bars in the confined area, flanked by the Namibian Police Reserve Force (SWAT) officers, who are clad in battle fatigues and armed with Avtomat Kalashnikova 1947 (AK-47) assault rifles. The result of such a vista, I submit, is that I am viewed in a manner designed to cast me in the same light as the accused (and now convicted) in the trial related to the failed Caprivi secession: a dangerous person. Which I am not. We are not charged with any offence in which violence is an element,” Shanghala said in his founding affidavit.
They seek relief in the application to restrain the Prosecutor General, in terms of Article 25(3) of the Namibian Constitution, from continuing to prosecute the applicants in the Otjozondjupa courtroom. They also request that the Ministry of Justice provide and install tables and suitable chairs (with backrests), a lectern, Wi-Fi access, and electrical points for the use of the accused in the Otjozondjupa courtroom.
Shanghala also sought to prevent the media from taking pictures of them while behind burglar bars.
In response, the respondents, including the Judiciary, the Registrar of the High Court, the Minister of Justice, and the Prosecutor General, argued that the application brought forth by Shanghala and his co-accused is not urgent. They contend that the applicants had ample time, from 13 February 2023 to 20 September 2023, to raise any issues regarding the criminal trial taking place in the Otjozondjupa courtroom.
“It was incumbent on them, at that time, or immediately thereafter, to bring an application on an urgent basis regarding the trial taking place in the Otjozondjupa courtroom. This they did not do, and instead waited until 13 September 2024 to bring this urgent application,” Ndamonao Ilovu, counsel for the respondents, argued.
The lawyer added that the removal of the metal bars in the Otjozondjupa courtroom, which is the major concern of the applicants, has already occurred, and therefore the issue is no longer an existing or live controversy between the parties.
“An interdict cannot be granted in respect of an event that has already occurred. There is nothing left to interdict. Respectfully, the Honourable Court should decline the relief in the form of an interdict,” Ilovu argued.
Further to this, the legal counsel argued that, regarding Wi-Fi access, the applicants do have access to Wi-Fi facilities when it pertains to trial preparation and closing submissions.
“On the issue of chairs with backrests, it is submitted by the Government Respondents that they have commenced the cost implication process for installing chairs with backrests in the Otjozondjupa courtroom during the financial year 2024/2025. It is further submitted that any material changes made to the Otjozondjupa courtroom are likely to be implemented in all other courtrooms in the High Court Main Division and Oshakati Division, in line with the provisions of Articles 8 and 10 of the Constitution of the Republic of Namibia,” Ilovu argued.
