Former CEO of the Fisheries Corporation of Namibia (Fishcor), Mike Nghipunya (37) wants the Windhoek High Court to remove the words “It is the interest of the public or the administration of justice” from the Criminal Procedure Act (CPA).
In an application launched at the High Court on Friday by his lawyer Milton Engelbrecht, he wants the court to review and set aside the section in the CPA containing the words, declaring it unconstitutional, null and void – and of no force of law and effect.
According to him, the word “unduly places an unreasonable limitation to his rights in Articles 7, 10, 11, 12, 22, 24 and 25 of the Namibian Constitution.
He further said the words exceed the limits of a constitutionally compliant law, and it is overly broad and capable of full comprehension by those likely to be affected by it.
“The aim of that section is to give the judiciary unguided and untrammelled discretion, which goes beyond the scope of the Namibian Constitution,” he argued, and continued: The aforesaid impugned provision essentially authorises pre-trial and pre-sentencing detention in circumstances which are not authorised by the Namibia Constitution.
“In the event that the court upholds the applicant’s constitutional challenge of the above-mentioned section, and that the court finds it appropriate to refer the section back to the legislature for correction and/or amendment, then in that event that the honourable court exercises its powers under Article 25 of the Namibian Constitution and direct that the applicant’s bail application henceforth be considered without the aforesaid words,” he demanded.
The minister of justice, the attorney general and the prosecutor general are the respondents in the matter. By the time of going to press, no indication was given on the e-justice system whether they will oppose the application.
Nghipunya, who has been in custody for almost one year, wants to be released on bail pending his trial on charges of fraud, contravening the Anti-Corruption Act and corruptly using office for gratification as well as money laundering.
In this case, Nghipunya is charged alongside former fisheries minister Bernhard Esau, former minister of justice Sacky Shanghala, former Investec Asset Management Namibia managing director James Hatuikulipi, Esau’s son-in-law Tamson Hatuikulipi and Pius Mwatelulo.
On the charge of corruptly using office for gratification, the prosecution is alleging that Nghipunya, alongside Esau, Shanghala and James, used their offices or positions in a public body for gratification to obtain N$75.6 million that was paid to them or entities of their choice between August 2014 and December 2019.
He denied the charges and said in an affidavit read into the record by his lawyer, advocate Thabang Phatela, instructed by Milton Engelbrecht, during the bail application that he has no idea why he has been charged.
He also stated that he fails to understand how he could be charged with the alleged crimes of which he is being accused, and that he had no intention to act unlawfully in his duties as CEO of the State-owned Fishcor.
“I firmly assert that I am innocent of these charges,” Nghipunya said in his bail hearing.
He was suspended from his post at the State-owned Fishcor near the end of last year and later fired.
The judge assigned is Thomas Masuku, but no date has yet been set for the application.