When the shepherd becomes a wolf

28 February 2020 · Carmel Rickard

Top-ranking Namibians implicated in international corruption related to the country’s lucrative fishing industry, have failed to have the search and seizure warrants issued against them set aside. Among the targets of the warrants applied for by the anti-corruption commission were the former minister of fisheries and marine resources and the former minister of justice. But the judge hearing the matter was highly critical of aspects of the commission’s behaviour. One of the complaints against the commission in relation to the warrants was that certain of the documents were ‘privileged and confidential’. The anti-corruption commission said the documents were ‘confidential but not privileged’ and there was thus no reason for them not to be seized and used in the matter – an attitude that the judge said ‘horrified’ him. The judge said it ‘boggles the mind’ that the commission did not follow the law that applied in a case where privilege was claimed. The commission’s behaviour amounted to ‘a shepherd becoming a wolf’ and in this regard, the commission’s officers acted ‘despicably’.

Read judgment

Among the six Namibians being held in connection with major bribery and corruption claims - popularly labelled the ‘fishrot’ scandal - is the former minister of justice, Sacky Shanghala. In prison after withdrawing a bail application, they have challenged the validity of the search and seizure warrants issued against them.

The scandal of which this latest legal challenge is a part, involves claims that Icelandic fishing firms bribed highly-placed Namibian officials for access to the rich fishing waters off the Namibian coast.

Magistrates

Last week judge Thomas Masuku found the warrants were valid, but he criticised a number of related aspects, including the role played by two magistrates in the legal challenge to the warrants.

Masuku ordered that his criticisms be passed on to the magistrates commission and then forwarded to all Namibian magistrates.

The two magistrates from Gobabis and Windhoek, were cited in the application for formal purposes only, said the judge. No allegations of bias, malice or fraud had been made against them so there had been no reason for them to have filed answering affidavits.

'Worrying'

He said it was ‘worrying’ that the magistrates ‘actually joined issue with the other respondents’. They took issue ‘literally with every allegation made by the applicants’, giving comments and answers to all the allegations.

One ‘took unpalatable shots’ at the applicants and made ‘injudicious’ remarks, dismissing a contention by the applicants as ‘ill-founded in law’. The magistrates further contested the urgency of the matter, ‘which is very bizarre’, said the judge.

On top of these problems, the magistrates and the other respondents including the anti-corruption commission were all represented by the same legal team.

Fundamental rights

Masuku said it was ‘unsightly’ that judicial officers, who should occupy an independent position, were represented by the same legal team that represented those whose conduct was challenged as allegedly violating fundamental rights and freedoms.

This created the impression that ‘the impregnable shield of independence that should cover the judicial officer (was) ruptured’.

In a case such as this, judicial officers should be legally represented by a different team ‘so as to objectively display jealous regard for the independence and impartiality.’

Second issue

The judge was, if possible, even more concerned about a second issue, this time related to documents taken by the commission. James Hatuikulipi, one of the applicants, alleged certain documents taken from him were confidential and privileged. Despite these protests the anti-corruption commission officials took the papers, inspected them and concluded they were not privileted.

Masuku said he was ‘horrified’ by the commission’s actions on this issue. The law clearly said that where privilege was claimed in relation to any document, that document ‘must immediately, and without having been inspected by the ACC officers,’ be sealed and kept in safe custody by appropriate court officials until a judge decided whether it was privileged or not.

‘It boggles the mind’ that the commission, ‘tasked with implementing legislation, turns to violate that very instrument.’ Even if its intentions in doing so were to prevent crime and corruption its actions amounted to ‘a shepherd becoming a wolf’.

'Despicable'

‘What the ACC officers did, in the circumstances, is despicable. They usurped powers that the legislature decreed should reside only in courts of law. The ACC in this case became prosecutor, judge and executioner, in its own cause, something that is anathema and should not be allowed or tolerated in a democratic state like Namibia.’

Masuku then declared that the documents, claimed to be privileged, had to be returned to Hatuikulipi and could not be used in any further proceedings against him.

'Decency'

But the judge had less time for some of the applicants’ other arguments. One of these was that the ACC had not been entitled to send 16 officers to carry out the search. Masuku said the numbers involved might vary from one search to another, as long as the search was carried out ‘with strict regard to decency and order.’

The applicants also claimed that the warrants were vague and overbroad. Masuku said courts interpreted warrants narrowly because of the rights and freedoms, otherwise protected, that were violated. Thus, the authorisation and execution of search warrants ‘must be closely and narrowly interpreted’ to prevent possible abuse by those in power.

In this case, the warrants allowed officers to take any items on the premises that in the opinion of the officers involved had a bearing on the investigation.

Open-ended

The judge said this section of the warrant ‘raises spasms of disquiet’ because it was an open-ended licence that ‘cannot be checked’, but the application by the six did not challenge the constitutionality of this section law so he could not take it further.

Still, the court was entitled to consider whether the items taken in the search ‘had a bearing on the investigation’, as required by law. Masuku said he found a ‘worrisome trend’ in what had been seized: a financial magazine, a firearm, Zimbabwean dollars which are no longer legal tender, along with inconsequential amounts of other foreign currency. These and other items taken did not seem to have a bearing on the investigations.

Two of the applicants also complained that the ACC had ‘abducted’ them and forced them to attend the search at their respective properties. Even though they had officially waived their right to be present during the search and despite an agreement between the ACC and the applicants’ lawyers that they would not have to travel to be present at the search, the ACC still took the men ‘against their will’ to the properties where the search was to be conducted.

Undignified

Masuku said even though the alleged offences were serious, the men were entitled to the presumption of innocence. The behaviour of the ACC officials was ‘despicable’; they treated the two applicants in an undignified way. While these were not grounds for setting aside the warrant, the applicants were free to take further legal action to ‘redeem their dignity’.

In conclusion Masuku upheld the validity of the search warrants. But he also ordered the return of Hatuikulipi’s documents, precluded them from being used in any future proceedings, and ordered his judgment to be forwarded to the magistrates commission for the information of all magistrates in the jurisdiction.

Carmel Rickard

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