Staff Reporter
SACKEUS Shanghala, the former Minister of Justice, argued that the arrest of up to 10 individuals in the “Fishrot case”, a few days prior to the 2019 general elections, was a failed coup that sought to overthrow the Swapo government.
Shanghala made this argument before High Court judge Hannelie Prinsloo today, stating that Justice Moses Chinhengo’s appointment as a Namibian acting judge should be set aside, as his appointment allegedly did not follow prescribed articles in the Constitution, and therefore decisions made by him should also be declared void ab initio.
The Fishrot scandal included the arrest of Shanghala and powerful leaders, such as former fisheries minister Bernard Esau, who are implicated in diverting governmental objective fishing quotas to Samherji HF in exchange for bribes, costing the state over N$300 million.
“Now we know why Mr Kanyangela was in this court, saying there were meetings being held and intelligence was there. Since when do crimes get investigated by intelligence officers? This was a failed coup. How does Al Jazeera get the bank statements of my president? Somebody was working hard so the regime change could be done. It’s called the October effect. These things aren’t a joke. It’s a failed coup. It is the weaponising of the judicial and criminal justice system,” Shanghala argued, adding that the entire investigation had only been done after their arrest.
The application to invalidate Chinhengo’s appointment and the decisions made by the judge comes despite Chinhengo stepping down last week from his position presiding over the Fishrot case due to personal reasons.
Shanghala argued that Chinhengo’s appointment was not, in fact, made in terms of Sub-Article (3) of Article 82 of the Namibian Constitution, and was instead done in terms of Sub-Article (1) of Article 82, which he argued does not give the president powers to appoint judges.
Chinhengo, a Zimbabwean national, was appointed as a judge at the age of 67, while the retirement age is 65. However, there are provisions allowing the president to extend a judge’s retirement age to 70. Shanghala, however, added that the appointment was wrongly done from the start.
“The correct constitutional provision, 82(3), was neither cited nor relied upon during the time of appointment. A subsequent invocation of a different provision cannot validate an act that was unauthorised ab initio. The 5th respondent (the Judicial Service Commission) says we delayed launching our application. We have been in litigation for half a decade and continuing—something we shouldn’t be proud of in this country. We are subject to a debilitating POCA restraint order; therefore, we can’t even pay our legal representatives,” Shanghala argued.
He added that his decision to challenge Chinhengo’s appointment was not delayed, as they had raised questions of law with the Supreme Court and had also written letters to the president.
Shanghala also contended that the respondents made no justification for bypassing a public and transparent appointment process and failed to acknowledge that the judiciary is vulnerable to the executive.
On behalf of the second respondent, the Judicial Service Commission, legal counsel Nixon Marcus argued that the central argument of the interdict application is that the applicants’ right to a fair trial would be jeopardized if the 4th respondent (Chinhengo) continued to preside over their case, while the legality of his appointment is being challenged in the main application.
“Since the 4th respondent is no longer presiding over the criminal case, the perceived threat to the applicants’ right to a fair trial has been removed. As a result, the basis for seeking the interdict has fallen away, rendering the case moot,” Marcus said.
He added that acting judges appointed in terms of Article 82(2) and (3) are excluded from the age limitations imposed by Article 82(4).
“The Commission’s decision to recommend the appointment of the 4th respondent as acting judge of the High Court to the president of the Republic of Namibia was therefore lawful. It follows that Article 82(4) does not impose any age restriction on acting judges. Consequently, there was no constitutional impediment to the Commission’s recommendation of the 4th respondent to the president. The applicants’ argument that the 4th respondent needed to be appointed before reaching 65 and secure a presidential extension to 70 is therefore unfounded,” Marcus argued.
