FRAUD accused Manga Nawa- Mukena and her husband Joseph Mukena yesterday gave notice to Windhoek High Court Judge Herman January that they intend to challenge certain sections of the Criminal Procedure Act.Their lawyer, Kadhila Amoomo, told the judge that his clients are seeking an order from the court reviewing and setting aside all notices issued in terms of section 179(1) (b) of the CPA in their trial, and declaring that all documents obtained by way of notices issued in terms of the section are inadmissible as evidence on the basis that it was unconstitutionally obtained.
In the event that the court declines, they will ask for a declarator that the section is unconstitutional. Should the court fail to do this, they will ask for a declarator that section 64(10(d) of the Banking Institutions Act is unconstitutional.
Section 179(1)(b) of the CPA 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.
Section 64 of the Banking Institutions Act provides for the confidentiality of banking details, except in the case of a criminal trial. However, they said, they reserve their right to challenge the Banking Act in the event the judge refused to consider their challenge to the CPA, as it is their understanding that their bank records were obtained through the use of notices issued according to the impugned CPA. 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.
She continued: This only happened because the section does not make provision for judicial oversight, and because the section is not clearly articulated as to avoid being vague. The section also does not “inculcate” sufficient procedures to preclude abuse. 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 moneylaundering, all three accused one count of obstructing or d e f e a t ing the course of justice or attempting to do so, while Manga 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 Mu l t i C h o i c e Namibia.
M b a n g a Siyomunji represents Antonio, and the State is represented by Timo Iitula. Nawa-Mukena and Antonio are free on bail, while Mukena is free on a warning.