Dr Rukee Tjingaete
The stage is almost set for the marathon Fish-rot trial to start. In the blue corner is the A-Team Defense Council consisting of highly competent lawyers with reputable credential of practice in court that will represent the accused.
In the red corner is the state prosecuting team that have developed reputation for losing high profile corruption cases, representing the state control agencies that are in this case the Anti-Corruption Commission, Office of the Prosecutor General and NAMPOL.
While the strength of the defense team could be judged from the qualifications and age of experience of the lawyers (some from South Africa and beyond) state control agencies themselves are susceptible for various reasons:
1. The history and track-record of losing high profile corruption cases or failure to prosecute and bring high profile culprits to book
2. There is doubt whether the state prosecuting team will consist of legal experts who on paper will stand up to those appointed by the Fish-rot accused to represent them
3. The mismanagement or incompetence in handling or exchanging of dockets that seems to disappear between the ACC and PG offices raises alarms. This was particularly alarming when the PG denied knowledge of dockets prepared by the ACC for prosecution in the GIPF case in which apparently only one suspect is still being investigated.
What is my own personal take on this trial? First of all, this marathon trial must not be treated as a sacred cow simply because it involves the big fishes. Analysts and social commentaries must be welcomed to help raise the interest of the public in this matter. Secondly, a marathon case of this case reminds me of the O.J. Simpson case in the USA that became a hallmark case study that attracted media analysis and opinions. The argument that the case is still in court and we cannot comment on it smacks of the usual practice of suppressing public opinions. My comments is therefore based on the fact that I am not a legal expert and will therefore remain immaterial to the trial.
I want to take off by arguing that for the state to win the case, other state supporting agencies and managers of private sector institutions alleged to have been beneficiaries to this corruption must be subpoenaed to testify on behalf of the state that the crime of money laundering is not confirmed in the Fish-rot corruption. However, taking that position may also implicate these institutions as conspirators in the matter. Therefore, the social control agencies will have their hands full if they are subpoenaed to testify in this trial.
For example, commercial banks that are regulated by the Bank of Namibia to control the flow of capital into their accounts will be quizzed on the precautions they had taken to monitor and control the capital flow derived from the Fish-rot scandal that were deposited into their accounts. If there were irregularities in this aspect, the current Minister of Finance who was then the head of the Central Bank that regulates commercial banks has to stand in the docket to testify. It would be in the public interest to know how they would testify under oath.
The current Minister of Finance has not been exonerated by the public who as chairperson of the SME Bank is accused of having supervised an institution responsible for the theft and plundering of public money that disappeared in thin air. It is also amazing that so much Fish-rot money was exchanged between the accused and commercial banks that he as Director of Central Bank ought to have controlled as a regulator of commercial banks.
If subpoenaed to take the witness box, the cameras will be on the ACC Director and Deputy who on record stated they have been investigating the Fish-rot corruption since 2014, but only to announce this investigation after Aljazeera has dropped the bombshell. What explanation will the ACC and NAMPOL have for this hyperbolic delay in exposing the rot?
It is also interesting to note that only the Ministers and Attorney General are jailed and are being accused of corruption. What are the explanations of the Deputy Ministers or Permanent Secretaries (now Executive Directors) and Adjunct Attorney-General and other high-ranking officials such as consultants who constitute their teams? If they are compelled through a court order to testify through court-order which of the following three hypothetical explanations will determine the outcome of the marathon trial?
1. Professing ignorance that they never knew about these transactions which would support the conspiratorial theory raised by skeptics based on the notion that since ministries consist of teams that take collective decisions on major transactions involving large capital resources, they should naturally also be held accountable.
2. Support their former bosses behind bars that they acted honorably and in the interest of the public which would then help the defense case that the charges must be dropped and they should be released
3. Support the state prosecution team and testify against their former superiors currently in jail which would then place a heavy burden to prove that the accused are not guilty. But the question then would be if they knew that their superiors were guilty of misconduct, why did they not report them to the investigating agencies that started the probing as early as 2014?
Finally, cases of this high profile are the domain of advanced and skillful investigating agencies such as FBI in the USA. Mozart in Israel, Hawks in South Africa, KGB in Russia or MI7 in the UK. Why does it not seem the case in Namibia where high profile cases are investigated by lowly-ranked and underpaid constables or ACC investigators who can be easily intimidated or even bribed by the big fish that on many occasions have resulted in the disappearance of criminal dockets? It is therefore critical to know if the Namibian Central Intelligence Agency has been conducting its own separate investigation that corroborates the findings of the ACC and NAMPOL investigation.
If all these social control agencies are subpoenaed to testify on behalf of the state that there was indeed theft, corruption and money laundering involved then the state will have a strong case than relying on the testimonies of constables and low-ranked official employed by the ACC and NAMPOL.
However, the corollary is possible, if in the absence of that, the defense team becomes desperate and subpoena the social control agencies and banks to testify with the intention to force them to admit under cross-examination that they colluded with the accused, the state could lose its case on technical merits unless all these high profile people outside bar are also prosecuted with the accused behind bars.
The state could similarly lose the case on the premise that if all these public agencies did not suspect corruption or prove that the suspects’ actions constituted theft and money laundering and even approved these transactions, then the accused would have acted honorably and the state does not have a case.
In conclusion, we are all equal under the law. The big fishes must be not spared blushes if they are suspected to have erred. They should be equally subpoenaed to take the witness stand and testify under oath that they are not party to these scandal one way or the other. They hold the key to how this trial will end. Should the state field illiterate constables and low ranked officials as state witnesses, they will be easy pick for experienced defense teams and their feathers will be raffled in such a manner that will not only be an embarrassment to the prosecuting team but that would make mockery of our judiciary system..
Therefore they must be forced to stand in the witness box to give credibility to this marathon trial and convince the public that all venues are examined in court and crucial evidence is not excluded behind closed doors as this will implicate the big fish.
The country must make history that for the first time, these high-ranking officials are not immune to the judiciary system and that we are all equal under the law. They must not be spared blushes, simply because they hold high public positions. This will also subject them to public scrutiny in respect to their competence to manage in a professional manner the institutions they represent. This will help to disconfirm the conspiracy theory currently whispered in the corridors that they are all party to this corruption scandal and that they are hiding information from the public because their colleagues are involved.
