LAWYER Sisa Namandje says the charges levelled against suspended Namibia Students Financial Assistance Fund (NSFAF) chief executive Hilya Nghiwete were unlawful because the board that suspended her was illegally appointed.
These damming revelations are contained in a letter Namandje wrote to the NSFAF's lawyers on 2 October 2018.
Nghiwete was the fund's chief executive officer from 2013 until her suspension on 16 April 2018 over allegations of corruption and maladministration by the fund's current board, which is chaired by Jerome Mutumba.
Nghiwete was set to appear at a disciplinary hearing on Wednesday this week, but the case has been postponed following Namandje's questioning of the legality of the board.
Mutumba is deputised by businesswoman Christina Swart-Opperman, while other members are Stephen Tjiuoro, Abner Ananias, Adda Angula, Natascha Cheikhyoussef, Isak Neema and Tulimeke Munyika.
Namandje said the NSFAF board was not legally appointed, and this made Nghiwete's suspension and the corruption charges against her unlawful.
He argued that the charges were illegal because the lawmakers failed to do their job by failing to gazette certain sections in the Namibia Students Financial Assistance Fund Amendment Act in 2014.
"Upon our diligent search, we have established that the act is yet to come into operation as the date of commencement of that act was never determined by notice in the Gazette by the minister [of higher education]," Namandje wrote in his letter.
The Namibia Students Financial Assistance Fund Act, 2000 was amended in 2014 to insert certain definitions and clauses.
These include changes to how the NSFAF board is appointed, their powers, duties, functions and the appointment of the fund's chief executive officer.
Other changes made to that law related to the fund's bank accounts, financial statements, bookkeeping, auditing and recovery of loans.
The minister was supposed to gazette this new changes to make them legal.
This was supposed to be done by the former education minister, or current higher education minister Itah Kandjii-Murangi, who took over in March 2015.
Namandje described the decision by NSFAF board chairperson Jerome Mutumba as illegal.
"That being the case, Mr Jerome Mutumba can never be a director of NSFAF and its chairperson in the eyes of the law. Consequently, the charges (against Nghiwete) are null and void," the lawyer stated.
Namandje copied the letter to fellow lawyer Clement Daniels, who was supposed to chair Nghiwete's hearing.
Daniels will decide whether Namandje has a valid point, or whether Nghiwete should face the charges. Daniels declined to comment when approached yesterday. Mutumba said he is not fully aware of Namandje's claims that the board was appointed illegally.
"Do you think the government would do something this illegal? You are just shi**ing the tabloid with every kind of junk that you can collect. You need to be able to interpret things as a journalist," Mutumba told The Namibian this week.
Namandje's challenge could cause a snowball effect on several past NSFAF decisions.
Nghiwete's team said the appointment of the NSFAF's acting chief executive would be illegal, including the forensic investigative report which looked into the irregularities Nghiwete allegedly committed.
The cancellation of the loan recovery tender will also be affected, her supporters said. Efforts to get comment from Kandjii-Murangi were not successful. She also did not respond to SMSes sent to her.