Hailulu Fails With Contempt Attack on ACC

AN attempt by the chief executive officer of the National Housing Enterprise, Vinson Hailulu, to have the prosecutor-general and the Anti-Corruption Commission held in contempt of court over a decision to prosecute him on 13 criminal charges has ended in failure in the Windhoek High Court.

Hailulu suffered his latest legal defeat against the ACC in a judgement that was handed down on Wednesday. In the judgement, an urgent application that Hailulu lodged with the court in late February 2010 was struck from the court roll, with Hailulu also ordered to pay the legal costs of the prosecutor-general and the ACC in the matter.

Judge Kato van Niekerk ruled that Hailulu’s application against the PG and the ACC was not urgent, as he continued to rush to court with the case after Prosecutor-General Martha Imalwa had given him an undertaking not to proceed with the prosecution he was facing until another case that he had lodged against the ACC had been finalised.

Hailulu asked the court to hold the PG and the ACC in contempt of court on the basis of an interim order that he obtained in the High Court against the ACC in February 2009. In that interim order, the ACC’s decision to conduct an investigation of allegations against Hailulu was reviewed and set aside pending the finalisation of a review case that Hailulu lodged against the ACC.

Hailulu’s arrest by the ACC in late November 2009 was also declared unlawful, and the criminal proceedings that were instituted against him following his arrest were further declared invalid.

While the review case against the ACC was still pending the PG took a decision to continue with the prosecution of Hailulu on 13 criminal charges. On 15 February 2010, Hailulu received a summons to appear in the Windhoek Regional Court on 5 March 2010. He then launched the urgent application against the PG and the ACC.

Judge Van Niekerk noted in her judgement that the PG was not cited as a party in the first case in which Hailulu obtained an interim order against the ACC, and the interim order was also not granted against the PG. By the time that first case was lodged the ACC’s file containing the results of its investigation of the allegations against Hailulu had already been submitted to the PG’s office to be considered, the judge recounted.

It was conceded on behalf of Hailulu that the ACC did not take any further action after the interim order was granted that would indicate that the ACC had disobeyed the court’s order, Judge Van Niekerk noted.

She found that it was not shown that the ACC or its director had done anything that was a violation of the interim order.

With the PG having offered to halt the prosecution against Hailulu pending the outcome of the review case that he filed, Hailulu also did not have grounds to rush to court on an urgent basis, Judge Van Niekerk found.

In the review case Judge President Petrus Damaseb in July last year dismissed Hailulu’s application for a court order that would have set aside the ACC’s decision to investigate the allegations against him, and that would have declared the criminal proceedings initiated against him as invalid.

Hailulu, however, succeeded in getting a court order declaring a warrant for his arrest and the arrest that was carried out on 27 November 2008 unlawful and to have the arrest warrant set aside.

The charges against Hailulu included two charges in which he was accused of having appointed new employees at the NHE and having promoted an employee contrary to the policies and procedures of the NHE. It should have been obvious to the ACC and its officers that the allegations at the root of those two charges cannot constitute corruption as defined by the Anti-Corruption Act, Judge President Damaseb found.

The judge president also found that the ACC had proper grounds to investigate other charges against Hailulu, though. Those charges involve allegations that he had used an NHE credit card for private purposes, that he had extended financial benefits to a business associate who was also a board member of the NHE and to himself and his family when they were not entitled to such benefits, and that NHE employees had performed private work for Hailulu.

Hailulu has lodged an appeal to the Supreme Court against the judge president’s judgement.

Source : The Namibian