Fishrot accused welcome Mbumba with baptism of fire
No smooth ride for new president
The accused men reminded the new president of his predecessor's 'unconstitutional' conduct, which they say violated their rights.
Three men accused in the infamous Fishrot saga have threatened to drag President Nangolo Mbumba to court should he appoint or extend the term of office of Zimbabwean-born judge Moses Chinhengo, who has been assigned to the looming trial.
Former justice minister Sacky Shanghala, his business partner James Hatuikulipi, and Pius Mwatelulo wrote to Mbumba through their lawyer Ronald Kurtz to forewarn him about any extension or substantive appointment he may grant Chinhengo.
Plea proceedings against the three men and the seven other accused started on a rocky note in December last year after Chinhengo asked them to plead to the litany of charges they are facing - despite four of them not having lawyers at the time.
In heated exchanged with the judge, the accused said pleading without lawyers violated their constitutional rights to a fair trial.
But Judge Chinhengo countered that the men had had enough time to secure lawyers, including state-funded ones, and entered ‘not guilty’ pleas on their behalf.
Apart from the three, former fisheries minister Bernhardt Esau also did not have a lawyer.
This week, lawyer Trevor Brockerhoff withdrew his representation of another accused in the matter, Ricardo Gustavo.
The case was postponed to 1 March after accused Nigel van Wyk brought an application for Chinhengo’s recusal.
‘Unconstitutional’
In their letter to Mbumba, Shanghala, Hatuikulipi and Mwatelulo yesterday described Chinhengo’s appointment by late president Hage Geingob – who will be buried this weekend – as ‘unconstitutional’.
Chinhengo was appointed as an acting judge of the High Court for the period 18 September 2023 to 31 December 2023. The accused said the appointment was illegal because he is not Namibian, was not a serving judge in Namibia at the time, and was 68 - past the retirement age of 65 for judges.
“President Geingob’s appointment of Mr Chinhengo as an acting judge in 2023 was, with respect, unconstitutional,” the men wrote.
Namibian Sun previously reported that Chinhengo was appointed on the alleged basis that he was not involved in Fishrot before after some of the accused applied for the recusal of judges who denied them bail. They argued that these judges denied them bail because they had already largely concluded that the accused were guilty of the charges they are facing.
The judiciary is thought to have brought in Chinhengo on grounds that he is not compromised in any way in the matter.
In Geingob’s footsteps
With Chinhengo’s initial appointment having ended in December, the accused men have proactively written to Mbumba to remind him of their concerns, and highlighted the action they would take against him should he follow in Geingob’s footsteps in the matter.
They argued that Chinhengo may not preside over their case when it resumes in March because his term of office has expired – and any extension or full appointment as judge would be unconstitutional.
“Our clients fear that steps may be put in place - between now and the time the trial is set to resume - to extend Mr Chinhengo’s appointment... in order to continue presiding,” Kurtz wrote.
“We have been instructed to inform you that should you appoint Mr Chinhengo... or extend his appointment, our clients intend to approach the High Court on an urgent basis, without any further notice to yourself, to set aside such appointment or extension as unconstitutional.”
Mbumba’s appointment of judges or extension of their contracts is subject to recommendation by the Judicial Service Commission.
Former justice minister Sacky Shanghala, his business partner James Hatuikulipi, and Pius Mwatelulo wrote to Mbumba through their lawyer Ronald Kurtz to forewarn him about any extension or substantive appointment he may grant Chinhengo.
Plea proceedings against the three men and the seven other accused started on a rocky note in December last year after Chinhengo asked them to plead to the litany of charges they are facing - despite four of them not having lawyers at the time.
In heated exchanged with the judge, the accused said pleading without lawyers violated their constitutional rights to a fair trial.
But Judge Chinhengo countered that the men had had enough time to secure lawyers, including state-funded ones, and entered ‘not guilty’ pleas on their behalf.
Apart from the three, former fisheries minister Bernhardt Esau also did not have a lawyer.
This week, lawyer Trevor Brockerhoff withdrew his representation of another accused in the matter, Ricardo Gustavo.
The case was postponed to 1 March after accused Nigel van Wyk brought an application for Chinhengo’s recusal.
‘Unconstitutional’
In their letter to Mbumba, Shanghala, Hatuikulipi and Mwatelulo yesterday described Chinhengo’s appointment by late president Hage Geingob – who will be buried this weekend – as ‘unconstitutional’.
Chinhengo was appointed as an acting judge of the High Court for the period 18 September 2023 to 31 December 2023. The accused said the appointment was illegal because he is not Namibian, was not a serving judge in Namibia at the time, and was 68 - past the retirement age of 65 for judges.
“President Geingob’s appointment of Mr Chinhengo as an acting judge in 2023 was, with respect, unconstitutional,” the men wrote.
Namibian Sun previously reported that Chinhengo was appointed on the alleged basis that he was not involved in Fishrot before after some of the accused applied for the recusal of judges who denied them bail. They argued that these judges denied them bail because they had already largely concluded that the accused were guilty of the charges they are facing.
The judiciary is thought to have brought in Chinhengo on grounds that he is not compromised in any way in the matter.
In Geingob’s footsteps
With Chinhengo’s initial appointment having ended in December, the accused men have proactively written to Mbumba to remind him of their concerns, and highlighted the action they would take against him should he follow in Geingob’s footsteps in the matter.
They argued that Chinhengo may not preside over their case when it resumes in March because his term of office has expired – and any extension or full appointment as judge would be unconstitutional.
“Our clients fear that steps may be put in place - between now and the time the trial is set to resume - to extend Mr Chinhengo’s appointment... in order to continue presiding,” Kurtz wrote.
“We have been instructed to inform you that should you appoint Mr Chinhengo... or extend his appointment, our clients intend to approach the High Court on an urgent basis, without any further notice to yourself, to set aside such appointment or extension as unconstitutional.”
Mbumba’s appointment of judges or extension of their contracts is subject to recommendation by the Judicial Service Commission.
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