By Megameno Shikwambi
Anti-Corruption Commission director general, Paulus Noa has said he will not comment on the acquittal of the former Public Service Commission boss, Teckla Lameck and her business partners Kongo Mokaxwa and Chinese national Yan Fan.
Asked by The Patriot what his thoughts were on whether justice was served, Noa said the onus was on the state to comment and not on him.
“I am not in a position to comment on the judgment. The reason being that you must remember that that judgment was handed down under Section 174.
In terms of that section the right people to comment on the decision are the people who had been following the proceedings. For me I have not been attending the proceedings up to that end. So it is very difficult for me to comment,” he said. The Patriot is informed that 18 Chinese witnesses were supposed to come testify, but although subpoenaed, they never showed up.
Noa said the onus was not on the ACC to subpoena them.
“In respect of the Chinese witnesses, actually when witnesses are outside the country, it is the responsibility of the ministry of justice to do those legal assistance proceedings to request to request the other authorities to avail the witnesses.
It’s not done directly by the investigating body. As a result if you want to get information whether that was done, it is the Prosecutor General’s office that will be able to provide you with that information,” he said.
Lameck was cleared of all their 18 charges together with business partner Jerobeam Mokaxwa and Chinese national Yan Fan.
The case against them hinged on the accusation that they committed fraud involving about N$120 million at the Ministry of Finance over the purchase of security scanning equipment.
They were initially arrested in 2009 by law enforcement officers, but on Tuesday it was all smiles and sighs of relief when High Court Judge Liebenberg let them free.
The judge cleared the trio on an accusation that it contravened Section 56(d), read with sections 1 and 56(a) of the Immigration Control Act 7 of 1993.
On this charge, allegations by the State were that the three, between 25 – 29 October, 2007 at or near Windhoek ‘wrongfully and unlawfully made a misrepresentation to facilitate Feng’s stay in Namibia.
The judge found this to be contradicting in that the drafter indicated that the misrepresentation was done allow Fan to stay in the country, but at the same time to facilitate his entrance into Namibia.
The Judge found that, there was no need to simply join together all possibilities provided for in the section.
He said the drafter thus generated a charge that was not only vague and embarrassing, but self-contradicting.
Justice Liebenberg said it was common cause that the accused Chinese National was issued with a business visa by the Namibian Embassy in Beijing, China, on the 04th of September 2007 which expired on the 03rd December 2007.
He said this application and reasons in support thereof did not form part of the documents handed into evidence by the state. The facts on the ground are that a letter was sent by Namib Contract Haulage (NCH) dated 25 October 2007 to the Ministry of Home Affairs and signed by Teckla Lameck in her capacity as Chairperson.
The purpose of the motivational letter by NCH sent to the Ministry of Home Affairs was to request the granting of an Employment Permit to Feng, to enable the smooth flow of business activities on behalf of their companies.
Fan was then employed as an International Marketing Manager with NCH. He needed a work permit since with a single entry visa, it was virtually impossible to handle the volume of business transactions on behalf of NCH.
Fan was found innocent on this charge. Lameck and her business partners were cleared on counts four and five which was the contravention of section 30(1) of the Immigration Control Act of 1993.
Accusations were that they contravened the provisions of ‘a permit’ issued under the Act by working for a close corporation known as Nuchtech when the permit meant that they had to work for NCH.
Contrary to count 4, Fan in count 5 is identified as the person to whom ‘a permit’ was issued to work for NCH as International Marketing Manager but who thereafter worked by Teko Trading CC, contrary to the permit.
According to Justice Liebenberg, both counts 4 and 5 were materially flawed in that Lameck and Mokaxwa are Namibian citizens who did not need a work permit to work in Namibia.
The judge said they were permanent employees of NCH and to this end the charge was improper.
In respect of Fan, the Judge found that it was not him who had committed the offence since he had a work permit, but the company, Nuchtech, that employed when the permit conditions were such that he was supposed to work for another company.
“It then follows that the accused was wrongly charged. This defect in the charge the defence had earlier brought to the attention of the state but, notwithstanding, the prosecution pursued with the charge as set out in the indictment,” said the Judge.
Lameck was also accused of contravening Section 36 of the Anti-Corruption Act 8 of 2003 (the ACA).
The state’s case was that between the 1st October 2006 and the 7th July 2009 in Windhoek, she wrongfully, unlawfully, knowingly and corruptly directly or indirectly acquired or held a private interest through Teko Trading CC in a contract, agreement or investment, emanating from or connected with the Public Service Commission.
Allegations were that she then entered into a purchase agreement with the ministry of finance to purchase scanners from Nuchtech.
Here, the state relied on provisions of Section 3(2) of the Public Service Commission Act 2 of 1990 (PSCA) dealing with the conditions of service of members which reads: A member of the Commission shall not without the consent of the President perform or engage himself or herself to perform any remunerative work outside the duties of his or her office.
The judge found it was common ground that the contract secured with the ministry of finance to purchase scanners was not connected to the Public Service Commission. As per the charge, the alleged corruption hinged on Lameck having performed remunerative work outside her duties as Commissioner without the consent of the President.
Lameck has constantly maintained that the President had given his consent for her to do this remunerative work.
Justice Liebenberg ruled that: “In these circumstances I find myself unable to come to any conclusion that the lack of consent required in terms of Section 3(2) of the PSCA to perform remunerative work, constituted a corrupt act (or omission) as envisaged in s 36 of the ACA.” The judge went on to clear the accused persons of all main and alternative charges from count one to 18, ruling that they had been wrongly charged while there had been no evidence.