The judge in the bail application of some Fishrot accused said the possibility of them interfering in the case is real if released on bail, as the State provided undisputed evidence.
“It is a risk I’m not willing to take to release the applicants on bail pending their trial,” said Windhoek High Court Judge Shafimana Ueitele when he dismissed an application by six of the Fishrot accused to be released on bail on Friday. The six men, former justice minister Sackey Shanghala, former chair of the National Fishing Corporation of Namibia (Fishcor) James Hatuikulipi, his cousin Pius Mwatelulo, former CEO of Fishcor Mike Nghipunya, Otneel Shuudifonya and Phillipus Mwapopi lodged the application in November last year, and the judge delivered his ruling last Friday. He said, while bail cannot be denied to a subject pending trial as a form of anticipatory punishment, bail, in itself, is not an absolute right, but it is subject to certain conditions.
If a court finds there is a real threat to the administration of justice if bail is granted, then bail should be denied, he stated.
Furthermore, the judge said, an applicant for bail must prove on a preponderance of probabilities that he or she is a viable candidate for bail.
According to the judge, the applicants had to furnish facts as to their claims that their constitutional rights are violated by keeping them in custody, as it is not for the mere say-so.
These claims by the applicants are at best second thoughts; they did not provide primary facts, the judge remarked.
While the right to liberty is guaranteed in the constitution, it is subjected to exceptions, the judge said and continued that in his view, the arrests and continued incarceration are not unconstitutional.
With regard to the State’s fear that the accused will abscond if granted bail, the judge said that all the applicants have deep emotional roots in Namibia – and in his view, the arguments for and against were equally balanced and cannot make a finding on it one way or the other.
However, he said, with regards to the fear of interference, the State led undisputed evidence that there were attempts to interfere – and as such, he is satisfied that the applicants will try to interfere with State witnesses if released on bail.
Therefore, Judge Uietele said, it will not be in the interest of the administration of justice to release the applicants on bail; hence, he dismissed the application and remanded them in custody.
The six men, together with former fisheries minister Bernard Esau, Ricardo Gustavo (on bail), Tamson Hatuikulipi and Nigel van Wyk, are facing more than 40 counts, including racketeering, contravening the Anti-Corruption Act, conspiracy, corruptly using office to for gratification, fraud, theft and money laundering, and defeating or obstructing the course of justice.
It is alleged by the State that they corruptly received payments to give a competitive advantage to Icelandic fishing company Samherji in securing access to horse mackerel quotas in Namibia.
According to the State, more than N$317 million was misappropriated and divided among the accused.
Also on the list of people added to the charges is lawyer Marèn de Klerk.
The State is yet to extradite De Klerk from South Africa and Icelandic nationals Ingvar Júlíusson, Egill Helgi Árnason and Aðalsteinn Helgason.
The State alleges that all the accused acted in common purpose.
Shanghala, Hatuikulipi and Mwatelulo were represented by Vas Soni SC on instructions of Murorua, Kurtz, Kasper Inc.; Thabang Patela, on instructions from Milton Engelbrech, was on record for Nghipunya, and Engelbrecht represented Shuudifonya and Mwapopi.
The State was represented by Cliff Lutibezi, assisted by Ed Marondedze
– rrouth@nepc.com.na