FOR more than two decades, Namibia’s top prosecutor has stayed in office through changing rules, opaque decisions and last-minute extensions, and now fresh questions deepen the mystery of her lasting tenure.
Prosecutor general Martha Imalwa’s employment contract was just extended for a further 12 months. The extension was announced by Judicial Service Commission (JSC) commissioner and secretary Elias Shikongo on Friday.
Chief Justice Peter Shivute is the man who has been presiding over Imalwa’s reappointments.
He has not responded to The Issue’s questions by the time of publication, including on whether any performance review has been conducted on Imalwa during her more than two decades as the country’s chief prosecutor.
CONTROVERSY
Imalwa was initially appointed to the position of prosecutor general for a 10-year term by founding president Sam Nujoma in 2004.
Ten years later, in 2013, her contract was extended for another seven years. And then, in 2020, for yet another five years.
New information suggests that the December 2020 reappointment was already controversial.
At least three sources claim that although Imalwa was the preferred candidate in 2020, she did not emerge from the recruitment process as the top candidate.
The top candidate was former deputy prosecutor general Tazwald July, who was allegedly overlooked by the JSC, despite scoring the highest during the recruitment process.
THE FISHROT LINK
A senior government official with knowledge of the recruitment process claims the JSC opted for Imalwa in 2020, because her term came to an end amid the country’s biggest fraud, racketeering and corruption scandal: the Fishrot case.
The JSC allegedly motivated her reappointment to then president Hage Geingob that the case was of national importance and that Imalwa should see it through.
The second reason for her reappointment in 2020, according to the senior government official, was the fact that July was not available for immediate appointment. He needed to serve a two-month notice period at his job at the time.
July was and is still employed as FNB Namibia’s group legal adviser.
He served as Imalwa’s deputy before joining FNB in 2016. July refused to comment when approached by The Issue.
Questions have also been raised on a possible conflict of interest around chief justice Peter Shivute.
Sources claim Shivute and Imalwa have been friends since their student days. Shivute’s participation in the process therefore raises governance questions.
The Issue understands that Shivute’s deputy, Petrus Damaseb, recused himself from the 2020 process, allegedly citing a conflict of interest since he knows one of the candidates. It is not clear which candidate he was referring to.
Chief Justice Peter Shivute
Shivute has not responded to questions pertaining to the 2020 recruitment process by the time of publication.
A HISTORY OF CHANGING RULES
Imalwa’s initial appointment in 2003 was already seen as controversial, because her journey to becoming an admitted legal practitioner to the High Court did not take the conventional route.
The conventional route involves attending the Justice Training Centre (JTC) and completing 900 hours’ attachment for nine months under the supervision of an admitted lawyer.
Imalwa at the time benefited from a change in the law exempting seasoned government employees working outside Windhoek but with more than five years’ experience from attending the JTC.
This provision accommodated lawyers who could not do their articles and attend the JTC in Windhoek.
When Imalwa’s contract was renewed in 2013, it was decided to extend it with another seven years instead of 10, allegedly to ensure compliance with the convention that a PG should not be over 60.
Another 10 years would keep her in office until age 63.
But in 2020, the rules changed again and the Frishrot case allegedly justified her second reappointment.
PRECEDENCE
Lawyers who spoke to The Issue in the past week say the Fishrot case should not have been used as grounds to renew Imalwa’s contract in 2020, and that she should have retired then at the age of 60.
Why did being embroiled in a case of national importance not apply to her predecessor, Hans Heyman, they ask.
Heyman was allegedly forced out of office as soon as he turned 60, while dealing with the Caprivi treason trial at the time, which was also of national importance.
Additionally, the rules on the age of retirement for the PG are not clear.
The Labour Act allows for people to work until 65 as opposed to the Public Service Commission’s rules, setting this at age 60.
As a fixed-term contract employee, an argument was allegedly made in 2020 that Imalwa was no ordinary civil servant and therefore qualified to retire at age 65.
Another argument was allegedly made that the PG position carried the same status as a judicial officer, with judges retiring at age 65 only, which can be extended as the president and JSC deem fit.
Imalwa three weeks ago declined an interview with The Issue, saying she was too busy.
HIGHS AND LOWS
In the early days of her 21 years at the helm, Imalwa ran a tight ship with seasoned prosecutors.
She succeeded in putting away major criminal gangs of armed robbers and fraudsters. The Caprivi high treason case was also under her stewardship.
However, her critics have always accused her of shying away when things get political.
Her office was accused of failing to prosecute in the Government Institutions Pension Fund’s failed Development Capital Portfolio saga, in which N$660 million in pensioners’ money was recklessly invested into politically connected start-up projects.
No one was brought to book.
In 2001, the defence ministry lost N$3 million in a botched arms deal to a British arms dealer, who never delivered despite being paid. In 2005 then President Hifikepunye Pohamba publicly called for those responsible to be held accountable. The Issue understands that the PG’s office conducted an investigation afterwards. The outcome was not made public.
In recent years, Imalwa has taken the lead in prosecuting high-profile corruption cases, like the Fishrot case, which started in 2019, and this year’s National Petroleum Corporation of Namibia (Namcor) fraud and corruption case.
ACTING FOR ANOTHER YEAR
The JSC last week announced that Imalwa was appointed as acting head of Namibia’s prosecuting authority for 12 months “to safeguard stability and the uninterrupted functioning of the Office of the Prosecutor General as the commission finalises its recommendation for the substantive appointment”.
On the same day, the JSC publicly advertised the position, because Imalwa’s term of office was ending this month.
The JSC’s move to wait until the eleventh hour to grant Imalwa a contract extension and to only advertise the vacancy weeks before her term was to end, has brought about wide-ranging speculation.
SUDDEN SPREE OF ARRESTS
Unconfirmed reports also indicate that the recent spate of Anti-Corruption Commission (ACC) arrests, primarily targeting midlevel politicians and civil servants, is linked to a last-minute attempt to secure herself another term of office.
The ACC started making multiple arrests in August, which intensified between October and November. Some of these cases are up to 10 years old.
The Issue understands that her office finalised close to 200 ACC dockets in record time, paving the way for the recent arrests.
