Ester Mbathera
Three of the accused persons in the Fishrot corruption scandal have written to President Nangolo Mbumba expressing concerns about the constitutionality of the appointment and any potential extension of Moses Chinhengo’s tenure as Acting Judge of the High Court.
In the letter, dated 21 February and seen by the Windhoek Observer, Murorua Kurtz Kasper Incorporated, the legal representatives of Sacky Shanghala, businessman James Hatuikulipi, and Pius Mwatelulo argued that Chinhengo is not a Namibian citizen and at the time of his appointment by late President Hage Geingob, he was not serving as a Judge in Namibia.
They further argue that Chinhengo, who was 68 years old at the time of his appointment in May last year, surpassed the constitutional retirement age of 65 for judges in Namibia.
Chinhengo was appointed to the position for the period 18 September 2023 to 31 December 2023 and has been presiding over that trial according to Proclamation 12 of 2023.
The accused argues that President Hage Geingob’s appointment of Chinhengo as an Acting Judge was unconstitutional because he lacked the authority to appoint someone over the age of 65 as an Acting Judge.
“Accordingly, President Geingob did not have the power to appoint Chinhengo as an Acting Judge, as his powers in terms of Article 82(4) were confined to extending the retiring age of a person who is serving as a Judge. In any case, there is no record of President Geingob having extended Chinhengo’s retiring age beyond 65,” reads the letter.
They also claim that Chinhengo, being a non-Namibian citizen, can only be appointed under a fixed-term contract of employment, which ended on 31 December 2023 and cannot be extended according to Article 82(4) of the Constitution.
Despite Chinhengo adjourning the trial of the accused to 1 March, the accused maintains that he cannot continue presiding over the trial without his fixed-term contract being extended.
“We reiterate with respect that, on a proper reading of Article 82 (4), Chinhengo’s fixed-term contract of employment may not be extended. On the information available to us, no other judge has been appointed to preside over our clients’ trial. Nor has Chinhengo’s appointment as an Acting Judge of the High Court been extended.
In the circumstances, our clients fear that steps may be put in place, between now and the time that the trial is set to resume, to extend Chinengo’s appointment or to re-appoint him as an Acting Judge, to enable Chinhengo to continue presiding over our clients’ trial,” the lawyers noted.
The accused fear that steps might be taken under the power granted to the President by Article 82(3) of the Constitution to extend Chinhengo’s May 2023 appointment or re-appoint him to continue presiding over their trial.
They warn President Mbumba that any such appointment or extension will be challenged in the High Court without any further notice to the president, to set aside such appointment or extension as unconstitutional.
According to the lawyers, any appointment of Chinhengo or the extension of his appointment as an Acting Judge will be made on the recommendation of the Judicial Service Commission.
Presidential spokesperson Alfredo Hengari did not respond to messages sent to him by the time this article was published.
