Staff Reporter
HOPES that the plea-taking proceedings involving the 10 men implicated in the country’s biggest fisheries corruption case would progress came to a standstill after former Minister of Justice Sackeus Shanghala requested the court to adjourn the matter until February 2025, pending an application for a special plea.
The Fishrot trial, which was due to commence on 2 October 2023, has made very little progress amidst several interlocutory applications by the accused. The furthest it has progressed so far is the taking of pleas from the accused in respect of only four counts out of about 42 charges, with which the accused are charged individually and collectively.
The notice of the special plea application was given by Shanghala, James Hatuikulipi, and Pius Mwatelulo.
In court papers filed, Mwatelulo outlined that he intends to plead under Section 106(1)(f) of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), which states that the court has no jurisdiction to try the offences listed in the preferred charges and counts of the indictment by the Prosecutor General in case number 06/2021.
“The grounds upon which accused six (Mwatelulo) bases such a plea is that Article 12 of the Namibian Constitution prescribes, inter alia, that in the determination of civil rights and criminal charges brought against persons, there shall be a fair and public hearing presided over by an independent, impartial, and competent court. The court is not ‘an independent, impartial, and competent court,’ as envisaged under Article 12(1)(a) of the Namibian Constitution, in that the appointment of the presiding officer, Acting Judge Moses Chinhengo, was ultra vires and unconstitutional for the following reasons, including that the judge is past the retiring age and that his fixed-term appointment contract of employment was not extended by the late President Hage G. Geingob,” Mwatelulo said.
He added that Judge Chinhengo’s continued performance of the role of presiding judicial officer in the capacity of acting judge in any hearing of any case in the Republic of Namibia renders such a hearing non-compliant with the prescripts of Article 12(1)(a) of the Namibian Constitution. This constitutes a violation of the fundamental right to a fair trial and renders this court without jurisdiction to try an offence, including those alleged in the indictment of this case.
“Kindly take further notice that an application has been enrolled in the High Court on Friday, 11 November 2024, and a docket assigned to Prinsloo, J, seeking to review the President’s appointment of Judge Chinhengo. Out of judicial comity to that court, and with due consideration of the norms set for judicial officers, such as the ethical judicial conduct applicable to superior courts in Namibia, this court ought to defer the consideration of the plea to avoid acting contrary to the principle of nemo iudex in causa sua. If the court continues to consider the plea, it would amount to conduct creating the apprehension of bias, rebutting the presumption of impartiality,” Mwatelulo concluded.
Judge Chinhengo however postponed the matter to later in the day and said that he would look at the special plea application at a later stage, and added that the accused should have mentioned if it were an urgent special plea application. The judge thus ordered that the plea-taking continue today.
