Opinion – Release fishrot accused immediately

The criminal process in Namibia comprises three stages: the pre-trial procedure, which starts with the arrest of an accused, appearance in court within 48 hours, and release on bail if no further detention is warranted, unless the interests of justice require otherwise.

The second stage is a trial process whereby the state proves its case beyond reasonable doubt and the accused is duty-bound to disprove allegations levelled against him/her and present his/her defence, and at the end a verdict is made of guilty or not guilty and subsequently sentencing or acquittal. The third stage is the post-trial process, and it includes remedies available to the accused such as appeal or review of the trial to the highest court.

Arrest is one of the methods of securing the attendance of an accused in court; other methods are such as summons, written notice to appear in court and admission of guilty fine.

In a nutshell, when the state alleges that an accused committed a crime and must appear in court to answer the charges, it can use one of the above-mentioned methods to bring the accused to court.

Therefore, arrest alone is not the only method of securing an accused in court. It is trite law that in instances when an accused’s physical address is known, then it is not necessary to arrest, but rather to issue a summons for him/her to appear in court.

If one analyses the criminal process regarding the fishrot accused, one becomes worried as to why the state restricts itself to one method of securing the attendance of the accused in court.

The Namibian Constitution protects every person from being deprived of personal liberty except in accordance with the procedures established by law.

After arrest, an accused person who is in jail is entitled to be released upon payment of money or by furnishing a guarantee to pay a sum of money to that effect.

During the first stage, the court is required to assess whether there is a likelihood that the accused will appear in court for trial. Furthermore, the Constitution provides that all persons charged with an offence shall be presumed innocent until proven guilty according to law, after having had the opportunity to call witnesses and to cross-examine those called against them.

The court may refuse to release an accused on bail if it appears that it is necessary to provide the state with reasonable time to procure material evidence that may be lost if bail is granted, or if it appears that, in the interests of justice, granting bail would be reckless.

The Prosecutor-General, on behalf of the state, is authorised to release an accused person on bail and may impose reasonable conditions to be observed by the accused.

There are instances where an accused can be refused bail if it appears that once released he/she will endanger the safety of the public or other persons, will commit a similar offence, will evade trial, will influence or intimidate witnesses for the state and will conceal or destroy evidence.

It is important to note that the risk of releasing an accused on bail becomes most apparent when the state is still investigating the alleged offence and the prosecutor general has not decided to prosecute the accused. On the premises, it is illogical to deny the fishrot accused bail for seven years, and it raises the question of whether the law enforcement agencies are incapable of maintaining law and order, investigating any offence or preventing crime.

A person can only leave Namibia with travel documents such as a passport or visa. It is public knowledge that the investigation into the fishrot case has been completed and that the Prosecutor General has decided to arraign the accused. If so, what is the rationale for denying the accused bail?

All these questions arose because, when one ponders the rationale for denying them bail, one infers that perhaps the judiciary is not independent or impartial, or is it compromised?

Granting an accused bail must not be confused with the challenges they lodged against the recusal of presiding judicial officers and other interlocutory matters.

Bail is a constitutional right to which every person is entitled before trial. Denying an accused bail appears to be a punishment, and they are Namibians like other accused of similar offences.

Equally, there appears to be no prospect of finalising this trial because the alleged crime committed involves foreign nationals and corporate entities abroad. It was reported that nations such as Ireland, from which some of the foreign accused hailed, refused to hand them over to stand trial in Namibia for fear of persecution.

If that’s true, there is a miscarriage of justice, as Namibian fishrot accused would likely shift blame to those foreign nationals and entities, who won’t be available to contradict such accusations.

Therefore, the best course is to release fishrot accused from jail by granting them bail, as keeping them in jail for an extended period appears to be against the provisions of the Namibian Constitution on a fair trial.

*Lucas Tshuuya is a legal practitioner of the High Court of Namibia. Follow him at [email protected]

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