Defence lawyers in the bail application of six Fishrot accused say releasing their clients on bail is a “safe risk.”
Vas Soni, the South African advocate of former justice minister Sacky Shanghala, former chairperson of the National Fishing Corporation of Namibia (Fishcor) James Hatuikulipi and Pius Mwatelulo, argued that although the judge cannot envisage the future conduct of an accused, the risk in granting such an accused his liberty is a risk that must be undertaken to ensure his constitutional guarantee to freedom.
He further said an accused cannot be held in captivity for an undisclosed period of time while awaiting trial, especially in a democratic society like Namibia. It will be a form of anticipatory punishment in circumstances where an accused is deemed innocent until proven guilty in a court of law. He further argued that his clients are not flight risks as they are fully committed to stand their trial and prove their innocence, and they will furthermore not interfere with either State witnesses or the investigations which are, Soni said, completed.
Advocate Thabang Phatela, on behalf of former Fishcor CEO Mike Nghipunya, shared similar sentiments and contended that his client cooperated with the investigations of the Anti-Corruption Commission (ACC) fully, and has nothing to hide.
“He fully intends to stand his trial and clear his name,” Phatela, who is instructed by Milton Engelbrecht, told the court.
He further said his client had sight of the full disclosure and is aware of the sum total of the evidence against him, and is thus “fully confident that he will disprove each and every allegation against him”. He added that Nghipunya suggested bail conditions that will make it near-impossible for him to interfere either with State witnesses or the investigation. Engelbrecht, on behalf of Otneel Shuudifonya and Phillipus Mwapopi, said the State has not shown on any scale of probability that his clients are not suitable candidates for bail. In fact, he said, the sweeping statements made by ACC chief investigator Andreas Kanyangela that Shuudifonya and Mwapopi are likely to abscond are without foundation and unjust. He said although a bail application is not normally the occasion where the guilt or innocence of an accused is determined, the State must make out a compelling case, and not merely make bare general allegations to prove that an accused is likely to abscond because of the strength of the State’s case against such an accused. He further stated that based on the poor evidence presented by the State, there is no case made out in the merits to justify the refusal of bail. Cliff Lutibezi, who is representing the State and is assisted by Ed Marondedze, argued that while it is true that a bail hearing is not there to determine the guilt or innocence of an accused, the State has the right to lead evidence that will establish a prima facie case against an accused person. In this instance, he said, the State established a prima facie case against the applicants. He said evidence was produced that the applicants acted as a syndicate and that if released on bail, it would be easy for them to assist each other to escape the jaws of justice. Evidence was presented of funds stashed away in Dubai, and of attempts to search the internet on extradition means from Dubai. He said while the accused believed in the beginning that the ACC did not have the capacity to investigate this matter and that no evidence would be gathered to prove the case against them, now that the docket has been disclosed against them, it is clear the State’s case against them is very strong, and the likelihood of conviction is very strong, which is an incentive for them to abscond. He submitted that uncontroverted evidence has shown that the applicants have tried to interfere with the case and State witnesses. This, he said, shows that the applicants have no moral principles and will use whatever means to undermine the State’s case against them. He, therefore, asked the court to keep the applicants in custody until the finalisation of the trial. 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 an office to receive 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 between the accused. Judge Shafimana Ueitele reserved the matter until 1 April for his verdict.