THE Fishrot Six, under the leadership of former Fisheries Minister Bernhard Esau, currently in custody at the Seeis Police Station, have filed an urgent application with the Windhoek High Court to have the charges and warrants of arrest declared void and to be set aside.
In his founding affidavit, Esau sites ulterior political motives and gross violations of their rights as entrenched in Article 8 of the Namibian Constitution as the basis for the urgency of the application.
In the papers filed at the High Court, the former fisheries minister stated that he is still a Member of Parliament and a member of the Swapo Party Politburo and Central Committee.
He further stated that the timing of his arrest and the arrest of especially the former Minister of Juctice, Sacky Shanghala, left the distinct impression that it was done in a way to influence the outcome of the Presidential and National Assembly elections held late last month.
Esau and Shanghala were arrested on 27 November, the day of the national elections, alongside former Fishcor chairperson, James Hatuikulipi, his cousin and Esau’s son-in-law, Tamson ‘Fitty’ Hatuikulipi, Investec Namibia manager, Ricardo Gustavo and Pius ‘Taxa’ Mwatelulo.
“The agenda appears to be regime change and the other applicants and I were seen as convenient tools to achieve that objective,” he noted in the founding affidavit.
He also stated that the Director General of the Anti-Corrruption Commission, Paulus Noa, acted to arrest them under political pressure and acted with ulterior purposes.
Esau also stated that the demonstrations held subsequent to their arrest are driven by political ambitions of Job Amupanda as the leader of the Affirmative Repositioning movement and the erstwhile independent presidential candidate, Dr. Panduleni Itula.
Besides the ulterior political motives for their arrest, the former fisheries minister stated in his affidavit that they are subjected to sever violations of their rights.
Esau sites that he, Shanghala and James were transported in the back of police van on rough gravel roads to be present at their respective farms while investigators from the ACC and the Namibian Police executed search warrants.
He added that they informed the investigators that they are not comfortable with travelling in the back of a police van on rough roads and that they would be willing to go along to the farms if they could be provided with suitable transport such as a minibus or or a double cab bakkie.
Despite protesting the mode of their transportation, they were still taken in a police van to the farms while it was determined by their legal representatives that it is not mandatory for them to be present during the execution of the search warrants.
Esau claims that them being forced to travel in the back of a police van practically amounts to kidnapping.
Esau also added that he was deprived of food and medicine even after he got sick in the back of the police van and that the two other accused persons suffered from backaches after spending a large portion of the day locked inside the police vehicles.
The former fisheries minister further noted in his affidavit that he feels they were willfully paraded to the media while in handcuffs and that their rights to receive visitors are also severely limited to Sundays.
According to him, this limitation means that their legal representatives are only allowed to see them during office hours and only after the police have been informed of such visits well in advance.
In his affidavit, Esau further stated that the postponement of the matter until 20 February 2020 and the fact that search warrants are still being executed is a clear indication that the investigation into the matter is not complete and that their arrest is therefore illegal.
“The Investigation is thus in its inception and we have no idea when it will be completed. It may take years, considering that the matter has international dimensions,” he said.
Esau stated that the Prosecutor General could subsequently not have applied her mind to make a decision whether to prosecute or not.
“I am advised that, properly construed, section 31 serves as an important purpose. The purpose is to ensure prosecution of the persons accused of corrupt practices, without having to prejudice them with the deprivation of liberty, through arrests. This vitiates the whole process from our arrest and detention, including the order of the first respondent (Magistrate’s Court) postponing this matter to 20 February 2020 and remanding us in custody. The whole process should thus be set aside,” he said.
The respondents in the matter include the Magistrate of Windhoek, ACC director Paulus Noa, the ACC, the Prosecutor-General, the Inspector-General of the Namibian Police, the Station Commander of the Seeis Police Station and the investigating officer in the matter.
A day after the affidavit was drafted, two other people were taken into custody for interfering with or defeating the course of justice when they attempted to remove files, data storage devices and even some ammunition for a firearm from Shanghala’s residence in Berg Street.
It was Nigel van Wyk’s second arrest in this regard.
He attempted to interfere with police officers when they arrested Shanghala and James on their farm in the Omaheke Region. A woman, who claims to be Shanghala’s fiancé, Ndapunikwa Ndikwetepo, also known as Puniko Nathaniel, was also taken into police custody along with Van Wyk after she was observed by investigators removing documentation from the house in Berg Street.
Ndikwetepo was released a few hours after she was detained and will subsequently not face charges of interfering with or obstructing the course of justice.
A date for when the Fishrot Six’s urgent application will be heard is still to be set by the High Court.