The Supreme Court dismisses the Fishrot bail appeal
The Fishrot accused persons’ appeal has helped the Supreme Court zoom into the right to bail for those who may enforce the right to liberty.
Above: Pius Mwatelulo, Tamson Hatuikulipi, Ricardo Guastovo, James Hatuikulipi and former ministers Sackey Shanghala and Bernard Esau
The court says unlike South Africa which has a constitutional right to bail, Namibia has a constitutional right to apply for bail, which a court may grant or refuse. He says any person arrested in Namibia has a right to apply for bail, but not a right to be granted bail.
Justice Frank has outlined three paths to freedom for those hoping to assert their right to liberty that the Namibian Constitution has given the country’s citizens. Frank says a person whose liberty has been disturbed may sue to regain it.
But he says that it is different for a person who loses his liberty following an arrest. He says a person who is arrested should apply for bail to be released from custody. The Supreme Court justice says in the judgment handed down on the 6th March 2023 that a person could be released when the Prosecutor General withdraws his case before he has pleaded to the charges.
Frank with Justices Jeremia Shongwe and Kananelo Mosito agreeing says this temporary break ends when the case is filed afresh. The other way to become free is when a court discharges or acquits a person after the State has told that person what he or she has done and the person has responded with an admission or denial of guilt.
Accused persons Sackey Shanghala, James Hatuikulipi, Pius Mwatelulo, Mike Nghipunya, Otneel Shuudifonya and Phillipus Mwapopi made a multipronged appeal of the High Court’s prior decision to refuse them bail.
They said the charges the Anti Corruption Commission had no power to investigate crimes considered as part of organised crime. They said the court at trial will dismiss evidence investigators found to support money laundering or racketeering, since they were only empowered to investigate corruption.
Justice Frank said the appeal in a case involving more than N$ 314 million (equivalent to U$ 17 million) became weak when the court did not find any mistake in the High Court judgment. He said the appellants’ case for fair trial was half-hearted and a court will admit evidence related to organised crime if it was obtained lawfully.
