THE state has shown that it has a strong case against six of the men charged in the Fishrot fishing quotas fraud and corruption case, the Supreme Court has concluded in a judgement in which bail appeals by the six accused were dismissed yesterday.
Evidence about financial transactions and false invoices created to cover payments connected to the Fishrot case show the state has established that, at this point, it has a strong case against the accused in the Fishrot case, acting judge of appeal Theo Frank remarked in the court's judgement.
He said once the State has established that it has a strong case to make against the six accused, their attack on the dismissal of their applications to be granted bail falters at the starting block, as they did not discharge the onus of showing they were worthy candidates to be granted bail.
Frank's judgement, with which fellow acting appeal judges Jeremiah Shongwe and Kananelo Mosito agreed, yesterday dealt another blow to hopes that the six accused might have had to be released on bail while they await the start of their trial in the Windhoek High Court.
The six accused - former justice minister Sacky Shanghala, his business partner James Hatuikulipi, former National Fishing Corporation of Namibia chief executive Mike Nghipunya, Pius Mwatelulo, Otneel Shuudifonya and Phillipus Mwapopi - appealed to the Supreme Court after judge Shafimana Ueitele dismissed their applications to be granted bail in the Windhoek High Court at the start of April last year.
In his judgement, Ueitele concluded that it would not be in the interests of justice to grant them bail.
The six accused are facing charges in connection with the alleged corrupt use of fraudulently allocated Namibian fishing quotas, through which they are claimed to have received financial benefits amounting to N$317 million, according to the state.
Putting the case before the Supreme Court in perspective, Frank stated in the court's judgement: "What is alleged, amounts to the largest corruption scandal since independence in this country, if not its history.
"Furthermore, it involves a syndicate operating over a number of years consisting of high-profile officials and government ministers acting in cahoots with others to enrich the members of the syndicate.
"The allegations paint a picture of corrupt and criminal conduct on a massive scale in one of the biggest economic sectors of the economy of this country, namely the fishing sector."
Frank noted that evidence collected during the investigation of the case includes bank records establishing a "money trail" of payments made by companies that used fishing quotas allocated by the Namibian state.
According to the prosecution, those payments "were syphoned off through various entities to the accused persons", and mainly to Shanghala, Hatuikulipi and Mwatelulo, in respect of quotas allocated to the company Namgomar Pesca Namibia, Frank recounted.
He said Nghipunya, Shuudifonya and Mwapopi, who testified in person during their bail hearing before Ueitele, probably realised that should the state establish a money trail they would have to give an explanation for funds that ended up with entities in which they had an interest.
However, according to the explanations that they gave, false invoices were presented by them before payments were made for supposed services they had rendered, Frank commented.
He added that "as the matter stands in this bail application, the state made out a prima facie case that the payments and the manner in which they were done were part of the corrupt scheme and that the method of distribution of such monies amounts to money laundering", which is an offence under the Prevention of Organised Crime Act (Poca).
Frank also noted that during the bail hearing Anti-Corruption Commission (ACC) investigator Andreas Kanyangela was accused of having carried out a hostile and flawed investigation.
The record does not support such conclusions in his view, Frank said on that score, adding: "The complaints against Mr Kanyangela seem to be for the sake of carping by the appellants [accused] as they could find no better complaints."
Also during the bail hearing, senior counsel Vas Soni, representing Shanghala, Hatuikulipi and Mwatelulo, took the point that the ACC was not authorised to investigate charges under Poca, with the result that those charges - mainly counts of racketeering and money laundering - are fatally flawed.
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If that argument was to be accepted, the prosecutor general would not be able to charge someone under Poca, for instance with money laundering, based on evidence collected by the ACC during an investigation of corruption, Frank observed, before commenting: "Simply stating the proposition demonstrates its absurdity."
He added: "The evidence which was lawfully gathered pursuant to the ACC investigation can obviously be used to press any charges based on such evidence. This is so because such evidence was not unlawfully obtained."
Frank further observed: "[W]hat is at play, is in fact allegations of persons whose conduct struck at the very basis of our society. In such circumstances, the risk that any one of them will not stand trial or will interfere with evidence simply cannot be excluded and the [High Court] cannot be faulted to not allow anyone of them bail."
The trial of the 10 men charged in connection with the Fishrot scandal is at this stage scheduled to start in the Windhoek High Court on 2 October this year.
