Judge affirms rights of detained Fishrot accused

The people charged in the Fishrot fraud, corruption and racketeering case are presumed innocent until proven guilty, and their human rights should be respected, it is stated in a judgement delivered in the Windhoek High Court on Thursday.

In the judgment, delivered by judge Orben Sibeya, a decision to move four of the Fishrot accused from the section of the Windhoek Correctional Facility where they were initially held was reviewed and set aside.

Sibeya found that the prison authorities failed to give Fishrot accused James Hatuikulipi, Mike Nghipunya, Otneel Shuudifonya and Pius Mwatelulo a chance to be heard before the decision to move them from the prison’s C section to its Echo Unit was made, and also failed to provide them with reasons for the decision.

Sibeya said in his judgement: “[N]ot only were they not heard before the decision to relocate was taken, but they were also denied reasons for the relocation. The applicants were sent from pillar to post in search of the reasons for the relocation.”

He added: “This is not acceptable in a country that is subject to the rule of law.

It should be ear-splitting to the [prison authorities] and all correctional officers that trial-awaiting inmates are human beings whose human rights must be respected by all.”

Sibeya also stated: “Besides, these are persons who are presumed innocent until proven guilty of the offences charged. Where an adverse decision is to be made against them, they have the right to be heard.

Where a decision is made, they have the right to be provided reasons for the decision.

Arbitrary decisions should be foreign in a country that prides itself on upholding the rule of law.”

In a sworn statement filed in May last year, Hatuikulipi said he, Nghipunya, Shuudifonya, and Mwatelulo were relocated from C section to the Echo Unit – where they are held with the general population of awaiting-trial inmates – at the start of that month.

Hatuikulipi also informed the court that he, Nghipunya, Shuudifonya and Mwatelulo had to sleep in Echo Unit and during the day were taken to C section, where they have access to their laptop computers, the internet and their copies of the docket of their case and where they can prepare for their trial.

He and the other accused relocated to Echo Unit are not able to prepare for their trial while they are required to sleep in Echo Unit, Hatuikulipi claimed.

Sibeya noted that the commissioner general of the Namibian Correctional Service informed the four accused that they can use their laptops after hours.

The court was also informed that the prison authorities placed the Fishrot accused in C section for their protection and so that they are able to use facilities in the section to study, research and prepare for their complex criminal trial, Sibeya recounted.

“If a decision is to be taken, for a good reason, to change the position of the incarceration of the applicants, they should be afforded audi [a hearing],” Sibeya stated.

“Because the applicants were not afforded audi before the decision to relocate them was taken, such decision cannot be allowed to stand,” he said.

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