One of the main accused in the Fishrot corruption saga, James Hatuikulipi is challenging a portion of the Prevention of Organised Crime Act (POCA), saying it is unconstitutional.

In the matter heard in the High Court yesterday before High Court judges Shafimana Uietele, Herman Oosthuizen and Acting Judge Collins Parker, he is asking the court to declare the words “or it appears to the court that there are reasonable grounds for believing that a confiscation order may be made against that defendant” as unconstitutional and to strike it down. He further wants the court to declare section 25 (2) as unconstitutional as the reference therein does not “expressly” exclude the impugned words. 

In addition, he wants the High Court to declare that any restraint order made against him in terms of the impugned words is unconstitutional and set aside.

Judge Orben Sibeya last month confirmed a preservation order against the Fishrot accused. The order included various bank accounts, luxury vehicles, houses, flats, properties and investments. 

Hatuikulipi also wants the court to declare that restraint order unconstitutional and set it aside. He is further seeking a cost order against anyone who is opposing the application; in this case the prosecutor general, attorney general, and the minister of justice.

Advocate Vas Soni SC from South Africa who is representing Hatuikulipi on instructions of Murorua, Kurtz, Kasper Inc. argued that the limitations that the impugned provisions impose on his client’s rights according to Article 12(1)(d) – the right to be presumed innocent until proven guilty – and Article 16 – the right to possess property – do not meet the requirements of the Constitution. As such, he said, they are not constitutionally compliant. 

According to him, these limitations in effect infringe on his client’s property rights and his right to be presumed innocent until proven guilty in a court of law. 

“Properly considered and having regard to the principles applicable to the interpretation of the ambit of fundamental rights and the extent to which they may be limited, that violation or limitation is not constitutionally compliant and should be scrapped,” Soni stated. 

In addition, he argued, the combined effect of the impugned provisions is to negate the court’s obligation under Article 5 of the Constitution to protect a defendant’s right to be presumed innocent. 

Senior Advocate Wim Trengove, also from South Africa, assisted by Sakeus Akweenda and Karla Saller and instructed by the attorney general argued that the restraint order was granted on reasonable grounds. 

He said the reasonable grounds test does not infringe upon either of the two constitutional rights or if it does, that it is a permissible limitation of those rights. According to him, the applicant has civil remedy because a confiscation order may only be made against someone who has been convicted. In the event of a conviction, he said, a confiscation will only be made according to the value the criminal derived from the offence. 

Further, he argued, POCA allows the court to issue a restraint order against a defendant who is being prosecuted if there are reasonable grounds for believing that a confiscation order will be made at the end of the trial. Also, he maintained, a defendant will not be left helpless and destitute as POCA incorporates measures for the protection of such a defendant. 

The court may permit the release of such assets from restraint as are reasonably required for legal and living expenses, Trengove argued. 

He asked the court to find that Hatuikulipi did not show that the restraint order was unconstitutional and to dismiss the application with costs. In the event that the court finds it unconstitutional, then he is asking the court to suspend the declaration of invalidity to afford parliament an opportunity to cure the defect as an immediate declaration of invalidity will seriously undermine the State’s ability to combat crime, and particularly transnational crime, will be contrary to the public interest and will place Namibia in breach of its international obligations.

The judges indicated that they will deliver the judgement on 17 October.

- rrouth@nepc.com.na