Fishrot trial halted by recusal request

Plea proceedings in the Fishrot corruption and fraud trial have been halted until an application for the recusal of the presiding judge has been heard and decided.

Acting judge Moses Chinhengo adjourned the taking of pleas at the start of the trial in the High Court at the Windhoek Correctional Facility yesterday, after defence lawyer Mbanga Siyomunji informed him he has filed an application by one of his clients, Nigel van Wyk, for the judge’s recusal.

Chinhengo adjourned plea proceedings following lengthy exchanges with Siyomunji, fellow defence lawyer Milton Engelbrecht, deputy prosecutor general Ed Marondedze and former attorney general and justice minister Sacky Shanghala, who has been without legal representation since his lawyers withdrew early last week, about the procedure to be followed with a recusal application.

The taking of the pleas of the accused in the matter will resume after the application for his recusal has been dealt with, Chinhengo said.

In the meantime, the state has to notify the court by 2 February whether it will be opposing Van Wyk’s request for Chinhengo to step down from the Fishrot case.

If the recusal application is opposed, Chinhengo will hear it in court on 1 March.

In an affidavit filed at the court, Van Wyk claims Chinhengo’s decision last week that the accused appearing before him should plead to the charges they are facing, although some of them are not represented by lawyers at this stage, violated their constitutional rights to a fair trial.

Van Wyk claims in his affidavit that the judge “has no regard to the rights of the accused to a fair trial and the principles that govern how judicial officers must not only respect those rights, but actively protect them”.

In court last week, Chinhengo directed that the taking of the pleas of the accused should proceed, although some of the accused are not legally represented and the defence lawyer representing one of the accused, former fisheries and marine resources minister Bernhard Esau, was not present in court due to illness.

Van Wyk also says in his affidavit that, having observed proceedings in court, “I reasonably apprehend that the learned judge is concerned only with completing the trial as soon as possible, irrespective of the rights of the accused and that that mindset will be maintained throughout the trial, which will accordingly not be fair”.

He further says: “I apprehend that the learned judge has already made up his mind if not in respect of the outcome of the trial, at least in respect of the manner that it will be conducted.”

Five of the accused – Shanghala, James Hatuikulipi, Ricardo Gustavo, Pius Mwatelulo and Van Wyk – refused to give their pleas on the charges they are facing when they were asked to plead on two counts of racketeering and counts of money laundering on Friday last week.

In respect of each of those charges, Chinhengo said he was recording a plea of not guilty on behalf of the accused who refused to give their plea.

The state has listed 42 charges against the 10 individual accused, as well as two companies, 12 close corporations and four trusts represented by the individual accused, arraigned before Chinhengo.

Only four of those charges have been put to the accused during plea proceedings last week.

The charges are linked to allegations that the accused had been involved in a multimillion-dollar scheme to illegally benefit from Namibian fishing quotas.

Six of the individual accused – Shanghala, Esau, James Hatuikulipi, Gustavo, Mwatelulo and Esau’s son-in-law Tamson Hatuikulipi – have been held in custody since their arrests near the end of November 2019.

Another accused, former National Fishing Corporation of Namibia (Fishcor) chief executive Mike Nghipunya, was arrested in February 2020, and has also been held in custody since his arrest.

Van Wyk, arrested in December 2019, was released on bail in an amount of N$20 000 on Tuesday this week, after four years in custody.

Another two accused, Otneel Shuudifonya and Phillipus Mwapopi, were arrested in December 2020, and have been kept in custody since their arrests as well.