It seems that the perseverance of the Fishrot accused to get rid of Acting High Court Judge Moses Chinhengo has finally paid off. This is after the judge tendered his withdrawal from the matter for personal reasons.
Judge President Petrus Damaseb yesterday announced that Judge Chinhengo, who hails from Zimbabwe and was specially appointed to deal with the Fishrot matter, will no longer preside over it. The Fishrot accused have, since the beginning of Judge Chinhengo’s appointment, kicked against the curb and demanded his removal from the matter.
At first, they accused the judge of bias and requested him to recuse himself from the matter. When that failed, they called for his removal because his appointment was “unconstitutional”.
Former minister of justice and attorney general Sackey Shanghala has been on a crusade to get rid of the judge.
He lodged an application on behalf of the Fishrot accused to set aside the decision by the late president Hage Geingob to appoint Judge Chinhengo as a judge of the High Court. Shanghala is joined in the application by his long-time friend and business associate James Hatuikulipi and Pius Mwatelulo.
Judge Chinhengo was appointed by Geingob as an acting judge from 18 September to 31 December 2023.
However, Shanghala stated that the tenure of Chinhengo lapsed because of the “efflux” of time, but the judge continued to preside over the Fishrot matter on the strength of that appointment without his tenure being prolonged by lawful actions.
He added that the appointment of Chinhengo is unconstitutional, as he had already turned 67 years old at the time of his appointment.
The Namibian Constitution stipulates that a sitting judge may not be over the age of 70.
Shanghala further argued that a judge who has already reached the age of 65 must retire, unless the age of retirement is extended by the president, but only to 70.
He submitted that this power does not extend to any judge, but to judges appointed in line with the constitutional requirements.
In line with this provision, Shanghala stated that the appointment of Chinhengo is unconstitutional and should be set aside.
Despite several applications by Shanghala and his cronies, Judge Chinhengo has remained steadfast that his appointment is lawful and that he would continue to carry out his mandate.
Judge Chinhengo is a retired judge of the High Court of Zimbabwe and formerly of the High Court of Botswana.
He currently serves as an acting judge of the Court of Appeal of the Kingdom of Lesotho.
He previously served as an acting judge of appeal at the Supreme Court in 2021.
It was not disclosed what the reasons are for his sudden change of heart, but rumours fly that it is because of the constant pressure of the Fishrot-accused.
Last week, Shanghala brought another application to the High Court for Chinhengo’s removal.
In the latest application, the Fishrot accused wanted the trial to be halted pending their application for the judge’s removal to be heard. They said their fundamental and constitutional rights to a competent and unbiased trial are being infringed upon if the trial is presided over by an illegally appointed judge.
The matter is set to continue on 4 August before the new judge.
The accused have remained in custody since their arrests in 2019 and 2020.