… “Legal practitioners are hired guns for service,” – Sacky Shanghala
It is a story of massive political fights and calculated moves that has come to threaten the jobs of thousands of workers, billions of dollars in State revenue from the fishing sector, and potential progress in the fight for Namibia’s dream of becoming food self-sufficient by producing its own fertiliser. But as details emerge about the fall – albeit temporarily – of Knowledge Katti’s marine phosphate mining dream, it is clear again that there is no teamwork in Government. Explosive emails reveal the depth and length to which the attorney general went to warn the Ministry of Environment and Tourism of the imminent court loss should it decide to accept a challenge in court against the fishing industry. The Patriot has had sight of fiery email communications between under-fire environmental commissioner Theo Nghitila and the Office of the Attorney General. The Patriot has also seen letters between Nghitila and Namibia Marine Phosphate as well as with the fisheries ministry in which he updates them of the progress made as far as awarding the Environmental Clearance Certificate is concerned. Nghitila has often cried that the fisheries ministry showed little interest during the consultation process, saying he would at times write to them inviting them for meeting but officials from the fisheries ministry fail to pitch.
Officials bypassing AG
A displeased Shanghala wrote to Nghitila on 29 October 2016 informing him that his office is constantly undermined by technocrats who bypass the principal legal advisor of Government when it comes to seeking legal opinion. “We will not act unethically because clients feel they know better, even though they cannot meet allegation with fact or evidence. I really regret that this has come to this, however, we have noticed a pattern of clients refusing to take advice and we end up looking as if we are not defending the Constitution,” Shanghala told Nghitila in the email correspondences. Nghitila has been dogged by controversy since he issued an Environmental Clearance Certificate to Namibia Marine Phosphate on 5 September 2016. A move which even prompted some sectors of the public to question his competency levels.
However, Nghitila has remained adamant that he followed the correct procedures when he awarded the certificate, only for his minister to leave him in the cold this week when he ordered that the certificate be nullified and the process restarted.
“I am fully aware of my constitutional obligation, however, your last mail addressed to my staff in the Government Attorney puts me in a difficult position, wherein I am constrained to advise you that, should Mr Namandje file his review, and the Minister has not yet had the opportunity to deal with an appeal (lodged either by the Ombudsman (who said he would) or any other party), and your stance has not changed or you have not provided evidence to controvert the Namandje 10-point list, as contained in his correspondence of October 27, 2016, then, in that case, I am left with no option [but] to inform you that the advice and legal support of the Office of the Attorney-General and its component offices, such as the Government Attorney will be withdrawn in this matter,” Shanghala said, adding that his office was not convinced with Nghitila’s response arguments to questions posed by Namandje. Shanghala further said: “You may contract the services of an independent legal practitioner (and many will be cautious if the Attorney-General has withdrawn) and we will settle such account, however, should you not be successful, Treasury shall be entitled to recover any lost or wasted costs from you and any other liable person, personally, jointly and severally.” “Having read your responses and heard from Mr Mathias Kashindi, the Deputy Government Attorney, that he was not convinced of your arguments in response to the questions posed, I am convinced that your responses fall short of answering the questions posed and do not provide us with a defense to take to Court (albeit not all the answers),” Shanghala said. The AG further warned that the case is not a good one for Government because “it might attract the sanction of the Court towards, not only your [Nghitila] conduct, but that of this constitutional office, which has a higher duty than that of legal practitioners (who are hired guns for service), as its duty extends to that of the Office bearer, id est, the Attorney-General, yours truly, to protect and uphold the Namibian Constitution.” Shanghala pointed out that: “Whilst there may be other lawyers advising you, even within the Ministry, their legal opinions are secondary to those of the Principal Legal Adviser to the President and Government. They do so, not in any capacity superior to that of the Attorney-General.”The AG advised Nghitila “to minimise the influence of the Minister and Deputy Minister, as, the Minister is the appellate body per the Environmental Management Act, 2007 – you cannot act under his dictation and he cannot be involved in litigation strategy.”
He also blasted the commissioner for allegedly failing to defend his position on the clearance certificate. “I have noticed that after consultations, you somehow gain the fortitude you did not have during the consultations, including the off-the-record and privileged consultations you had with Mr. Namandje, during which I am told, both you and your deputy could not provide answers or evidence of compliance as indicated in Mr. Namandje’s afore cited letter.”
The Katti factor
Katti, who is a known close friend of President Hage Geingob, was the person who set the scene alight when he stepped onto the phosphate red carpet. Before his arrival, NMP’s public face was geologist Barnabas Uugwanga. With his qualifications and experience working for international mining companies such as DeBeers, Uugwanga failed to convince government to change its mind nor could Kombadayedu Kapwanga from Lev Leviev Namibia Phosphate. Kapwanga is also a geologist, who once served as the Director of Mines at the Ministry of Mines and Energy. Katti, known as a serial dealmaker, pushed hard and within no time a certificate that allows the company to start mining was issued. This precipitated a widespread public outcry against marine phosphate mining, at first the environment ministry defended its position but public pressure forced it to reconsider its decision- a decision which is shaping up to be the most embarrassing decision taken by Government in Namibia’s history. Central to the claims made by the proponents is that the marine phosphate blockage is a cult against the main proponent, Katti, however the fishing industry players have refuted this. Katti has always been accused of being part of an elite group of Namibia that battle for state contracts in Government, with politicians, board members, agency executives and connected businesspeople all part of a toxic mix paralysing State coffers.
Nghitila vs deputy AG
Nghitila wrote to NMP on 3 February 2016 informing the company that internal consultations with the fisheries ministry regarding the status of the review of the verification report is taking place and that they will be informed once the process is complete. The commissioner’s spat was also exposed last month in a letter dated 28 October 2016 when he differed with deputy AG Mathias Kashindi over the phosphate matter. “I would like to register concern that the advice given to Sisa Namandje&CO. Incorporated in your letter dated 27 October 2016 did not reflect my discussions with you. I particularly would like to register my concerns because the letter was dispatched without my knowledge or consent and it is refuted that the client has conceded,” decried Nghitila.
The University of Namibia’s director for Sam Nujoma Marine and Coastal Resources Research Centre(SANUMARC), Dr. Samuel Mafwila, who worked as an independent observer on the NMP project said his duties were to verify and comment on the suitability of equipment and sampling techniques, on-board sample processing and handling of samples (on board processing, storage, marking, transportation, and record keeping), completion of the sampling operation and general comments on the overall operation. “I had no role in the awarding of the issuance of the environmental clearance certificate. The Issuance of the Environmental Clearance Certificate is awarded by the Authorizing Authority, thus according to Environmental Management Act, the powers are vested in the Environmental Commissioner to decide and award the Clearance.” He added: “Thus, the decision made by the Environmental Commissioner (EC) hinges on the best available scientific evidence and knowledge about the receiving environment, and such detailed information is packaged in the Environmental Impact Assessment (EIA) and the Environmental Management Plan (EMP).” Mafwila was roped in because Namibian Marine Phosphate had a three-tier agreement with the University Central Consultancy Bureau (UCCB) of the University of Namibia (UNAM). Part of the agreement was that UNAM provides Specialist Marine Scientists as independent observers of the field operations of the verification programme. “I was required to assess and comment on the laboratory facilities and sample processing in the laboratories, analytical processes, data analysis and interpretation results, biodiversity survey methods, and results, and finally, the peer-review process and workshop.” Mafwila said: “It should be noted that any capital project would have social and ecological impacts. Thus the extent of the impact is assessed using the best available scientific information. On this note, all the potential impacts of the envisaged phosphate mining are detailed in the EIA document and the mitigations measures are well outlined in the EMP. These are all public documents available at the Environmental Commissioner’s Office.” The independence of the verification has been questioned consistently by fishing industry players, despite Mafwila’s presence on the project. “It should be noted that I neither have a fishing rights/Quotas nor have phosphate mining company shares. My views and comments are based on the scientific evidence that exists this far for the site (Mining License Area),” he declared.