Namibia: Fishrot Arrest Warrants Withstand Attack

(File photo).

Former ministers Bernhard Esau and Sacky Shanghala and their four co-accused in the Fishrot fishing quotas corruption case are set to remain stuck in custody for longer, following the failure of their attempt to get a court order for their release.

An application in which the two ex-ministers and their co-accused tried to win their release was dismissed in the Windhoek High Court on Thursday, with judge Herman Oosthuizen also ordering that Esau, Shanghala and the other four applicants should pay the legal costs of the respondents in the matter.

Judge Oosthuizen dismissed the application after finding that it was a public prosecutor, and not an investigating officer of the Anti-Corruption Commission (ACC) as was claimed by the six applicants, who applied to a magistrate to issue warrants for the arrest of the two former ministers and their co-accused.

The judge also noted that the magistrate who issued the arrest warrants on 26 November last year "followed and applied the clear provisions" of the section of the Criminal Procedure Act setting out the requirements for a warrant of arrest to be authorised by a magistrate.

He further noted that the applicants in the case before him claimed that the magistrate should not have issued the arrest warrants and that the warrants should as a result be set aside, because it was not disclosed to the magistrate that arrest warrants had previously also been issued and that the warrant for Esau's arrest had been set aside two days before the new warrant was applied for and authorised.

It was only logical that the magistrate could not have taken into account something that he did not know, judge Oosthuizen remarked.

Esau, Shanghala and former Investec Asset Management Namibia managing director James Hatuikulipi, a former senior Investec Namibia employee, Ricardo Gustavo, Esau's son-in-law Tamson Hatuikulipi and Pius Mwatelulo are charged with having been involved in a scheme in which Icelandic companies allegedly paid them at least N$103 million to get access to Namibian fishing quotas. They are facing charges of corruption, fraud, money laundering and tax evasion in connection with that case.

In a second case, in which they were charged in February, the state is alleging that Esau, Shanghala, James Hatuikulipi, Tamson Hatuikulipi, Mwatelulo and former National Fishing Corporation of Namibia (Fishcor) chief executive officer Mike Nghipunya were involved in fraud, corruption and money laundering in which some N$75 million that was supposed to be paid to Fishcor was diverted to themselves or corporate entities of their choice between August 2014 and December 2019.

In the application heard by judge Oosthuizen near the end of February, the six applicants were asking the court to order that they should be released from custody immediately. That order was to be based on an order reviewing and setting aside or declaring unlawful a Windhoek magistrate's decision to issue the warrants that led to their arrests on 27 November last year. They also asked the court to review and set aside, or declare unlawful, an alleged decision of the ACC to apply for warrants of arrest to be issued by the magistrate.

Earlier this year, Esau, Shanghala, James Hatuikulipi, Gustavo and Mwatelulo also tried without success to get the High Court to declare search and seizure warrants used by the ACC during its investigation as unlawful. Judge Thomas Masuku dismissed that application on 20 February.

The accused men are due to make their next appearance in the Windhoek Magistrate's Court on 29 May.

The applicants were represented by South African lawyer Tembeka Ngcukaitobi, Gerson Narib, Eliaser Nekwaya, Gilroy Kasper and Appolos Shimakeleni. James Diedericks represented Windhoek magistrate Alweendo Venatius, who issued the arrest warrants, while senior counsel Piet van Wyk, assisted by Slysken Makando and government lawyer Neli Tjahikika, represented the ACC, the prosecutor general and the inspector general of the Namibian Police.

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