Africa-Press – Namibia. FORMER National Fishing Corporation of Namibia (Fishcor) chief executive Mike Nghipunya, who is facing charges in one of the two Fishrot cases pending in the High Court, wants to challenge the constitutionality of a part of the Criminal Procedure Act.
An urgent application in which Nghipunya is asking for a 30-year-old part of the Criminal Procedure Act to be declared unconstitutional was filed at the Windhoek High Court by his lawyer, Milton Engelbrecht, on Friday.
In the application, Nghipunya is asking the court to declare that the part of the Criminal Procedure Act’s section 61 which allows Namibian courts to refuse bail to arrested people if it considers that to be in the interest of the public or of the administration of justice is unconstitutional.
The section also states that a court may refuse bail on those grounds despite finding that an accused person was unlikely to flee or interfere with witnesses or the investigation of their case.
Nghipunya is also asking the court to declare that a bail application which he plans to bring in the High Court in November should be considered without the part of the act which he claims is an unreasonable limitation on his constitutional rights. The part of the Criminal Procedure Act’s section 61 being challenged by Nghipunya became part of Namibian law when the act was amended in 1991.
Nghipunya (37) has been held behind bars since his arrest in February last year. He applied to be granted bail in the Windhoek Magistrate’s Court in June last year, but his application was turned down in a ruling in which the presiding magistrate concluded that it would not be in the interest of the public or of the administration of justice to release him on bail.
An appeal to the High Court by Nghipunya against the magistrate’s decision also failed when it was dismissed near the end of October last year. In the High Court’s appeal judgement, two judges concluded, like the magistrate had done previously, that it would not be in the interest of the public or the administration of justice for Nghipunya to be released on bail.
The two judges further found that testimony heard in Nghipunya’s bail application indicated that he had been involved in a criminal syndicate and that if convicted he was likely to be sentenced to a substantial prison term.
In the pending case in which Nghipunya is indicted in the High Court, he is charged with former minister of fisheries and marine resources Bernhard Esau, former attorney general and justice minister Sacky Shanghala, former Fishcor board of directors chairperson James Hatuikulipi, Esau’s son-in-law Tamson Hatuikulipi, Pius Mwatelulo, Otneel Shuudifonya, Phillipus Mwapopi and also eight close corporations and three trusts linked to them.
The accused are charged with fraud, racketeering, money laundering and other crimes. The charges are linked to the Icelandic-owned fishing companies group Samherji’s use of fishing quotas allocated to the state-owned Fishcor, the sale of hake quotas allocated to Fishcor, alleged fraud in Fishcor’s sourcing of dried fish for a government drought relief programme, and the alleged theft of N$15 million from Fishcor to settle a debt of James Hatuikulipi and make a donation to Swapo.
In one of the fraud charges against Nghipunya and his co-accused – but excluding Shuudifonya and Mwapopi – at this stage, the state is alleging that they misappropriated about N$81,8 million from Fishcor and distributed that money among themselves and to entities and other people of their choice.
In another fraud charge, faced by Nghipunya, Shuudifonya and Mwapopi, it is alleged that they misappropriated about N$26 million which was distributed among themselves and to entities and other people of their choice.
Nghipunya claims in an affidavit filed at the High Court that the section of the law which he wants to be declared unconstitutional “exceeds the limits of a constitutionally compliant law” and is “overly broad and not capable of full comprehension by those likely to be affected” by that part of the act.
Says Nghipunya: “The aim of that section is to give the judiciary unguided and untrammelled discretion which goes beyond the scope of the Namibian Constitution.”
He also claims the section in question “essentially authorises pretrial and presentencing detention in circumstances which are not authorised by the Namibian Constitution”.
Nghipunya further says it has become clear that whenever he applies to be granted bail, which he needs to prepare properly for his trial, section 61 of the Criminal Procedure Act “will remain a major impediment”.
A date for the hearing of the urgent application has not been confirmed yet, but Nghipunya gave notice that if the case is not opposed he will ask the court on 24 September to make the order he is applying for.
