Namibia: Esau Appeals Against Bail Refusal

Former fisheries minister Bernhard Esau and his son-in-law Tamson Hatuikulipi are appealing against the ruling in which a magistrate refused to grant them bail nearly three weeks ago.

A notice stating that Esau and Hatuikulipi are appealing against magistrate Duard Kesslau's decision to turn down their application for bail and setting out the grounds for their appeal was filed at the Windhoek High Court on Friday, the leader of their team of defence lawyers, Richard Metcalfe, informed The Namibian over the weekend.

The grounds of the appeal include a claim that Kesslau wrongly found it was not in the interest of the administration of justice to grant the two men bail, and ignored that "other criminals directly implicated in the same criminal offences which the appellants face are not arrested" or have not had arrest warrants issued against them.

It is also claimed in the appeal notice that Kesslau rushed to a flawed conclusion and "simply ignored the fact that the investigations had commenced in 2014 and that the state was clueless as to when such investigations would be concluded with no end even in sight while the appellants are expected to languish in retributive custody".

In a ruling delivered in the Windhoek Magistrate's Court on 22 July, Kesslau concluded that a combination of the nature of the charges faced by Esau and Hatuikulipi, the public interest and the interest of the administration of justice made it impossible for the court to grant them bail.

Esau (62) and Hatuikulipi (39) have both been in custody for more than eight months following their arrest on 27 November last year.

They are facing charges of fraud, corruption and money laundering in connection with the Fishrot fishing quotas corruption scandal, based on allegations that they and four co-accused - including ex-minister of justice Sacky Shanghala and former Investec Asset Management Namibia managing director James Hatuikulipi - had been involved in a scheme in which Icelandic companies paid them at least N$103 million to get access to Namibian fishing quotas from 2014 to 2019.

In a second case, Esau, Shanghala, Tamson Hatuikulipi, James Hatuikulipi, the suspended chief executive officer of the National Fishing Corporation of Namibia (Fishcor), Mike Nghipunya, and an associate of Shanghala and James Hatuikulipi, Pius Mwatelulo, are accused of having been involved in fraud, corruption and money laundering in which some N$75 million in quota usage fees which were supposed to be paid to Fishcor was diverted to themselves or recipients of their choice between August 2014 and December 2019.

In the appeal notice, it is also claimed Kesslau "descended into the arena" by indicating in his ruling there were a number of questions on which he would have wanted to get answers from Esau and Hatuikulipi, but was unable to ask as they chose not to give oral testimony during their bail hearing.

It is further argued that Kesslau "usurped the function of the prosecution" and "showed absolute bias" by stating there were questions on which he was unable to get answers from the two men.

The magistrate in his ruling concluded the evidence before him showed the prosecution had a strong case against Esau and Hatuikulipi. On this point, it is argued in the appeal notice that Kesslau "in effect convicted the appellants incorrectly prior to a fair trial and on hearsay evidence".

Two of their co-accused in the two Fishrot cases, former senior Investec Namibia employee Ricardo Gustavo and Nghipunya, also applied without success to be granted bail before the bail hearing of Esau and Hatuikulipi took place.

Ricardo has in the meantime appealed to the High Court against the ruling in which his application for bail was refused in the Windhoek Magistrate's Court on 3 June.

Acting judge Kobus Miller dismissed Gustavo's appeal on 28 July after finding the magistrate who turned down his request for bail was not wrong when he concluded it would not be in the interest of the public or of the administration of justice to release Gustavo on bail.

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