Windhoek High Court Judge Herman January on Friday declined to hear a constitutional challenge against a section of the Criminal Procedure Act by fraud accused Manga Nawa-Mukena and her husband, Joseph. 

The judge also refused to issue an order declaring evidence gathered through notices issued according to section 179 (1)(b) of the CPA as inadmissible. According to him, the application by Nawa-Mukena is premature as the evidence is not before him yet. 

With regards to the collateral challenge, the judge said it will have far-reaching consequences on evidence-gathering, especially in crimes of a financial nature, and the parties cited – the prosecutor general, the attorney general, the Bank of Namibia, the chief of the Namibian Police, among others - have the right to be heard and to prepare themselves properly if they wish to oppose the application. 

According to the judge, the matter has been delayed several times – due to unforeseen circumstances – and as such, the applicants had ample time to file the challenge. They now come at this late hour when the trial is ready to commence, and surprise the court and the State with the challenge. He further said in his view, the correct procedure would have been for the applicants to issue the challenge through the Registrar of the High Court. 

January said in his view, it will be inappropriate to hear the challenge as part of a criminal trial, and that the appropriate way would be to follow the civil route. Kadhila Amoomo, who filed the challenge on behalf of the Mukenas, informed the court that he will file the challenge in the civil court by today. 

He further said he will also bring an application to stay the criminal proceedings, pending the outcome of the challenge. The challenge concerns section 179(1)(b) of the CPA, which makes provision for any police officer to, by way of notices issued, instruct any person to either appear in a lower court, or for any institution to provide documentation needed in a criminal investigation. The applicants argue that the section is vague and open to abuse by the police. They said it happened in their case. According to them, section 179 of the CPA does not require judicial oversight, which makes it dangerous and unconstitutional. 

“There is absolutely no judicial oversight, and because of the lack of judicial oversight, same can be subjected to abuse,” Nawa-Mukena stated in an affidavit submitted to the court.

The Mukenas and their long-time friend Celestino Gabriel Antonio pleaded not guilty to several charges of fraud, alternatively theft, forgery and uttering a forged document, money-laundering and obstructing or defeating the course of justice at the start of their trial last year.

Nawa-Mukena faces 85 counts of fraud, she and her husband 85 counts on the alternative count of theft, Nawa-Mukena alone faces 84 counts of forgery and uttering a forged document, all three accused face a second count of forgery and uttering a forged document, the Mukenas one count of contravening the Prevention of Organised Crime Act, all three one count of money laundering, all three accused one count of obstructing or defeating the course of justice or attempting to do so, while Nawa-Mukena alone faces one count of contravening the Value-Added Tax Act. The prosecution says all charges emanate from the falsification of 80 invoices worth N$2 088 071 for advertising services.

According to court documents, between 1 April 2013 and 17 March 2017, Nawa-Mukena and her co-accused allegedly defrauded Multi-Choice Namibia.

Mbanga Siyomunji represents Antonio, and the State is represented by Timo Iitula. Nawa-Mukena and Antonio are free on bail, while Joseph Mukena is free on a warning.