Full bench hears Amushelelo's legal challenges

Activist Michael Amushelelo&#039;s constitutional challenge to parts of the Criminal Procedure Act and the Banking Institutions Act was heard yesterday by a full bench of judges in the Windhoek High Court.In this matter, Amushelelo and his co-accused in a pending fraud case, Gregory Cloete, are challenging sections of two laws that were relied upon in the investigation into their alleged fraud and Ponzi scheme to obtain evidence that is now being used against them in a criminal case.The judge president instructed the registrar last year that the case should be heard by a full bench of judges. The judges included Hosea Angula, Thomas Masuku and Nate Ndauendapo.The case was postponed to 27 August for judgment.‘Unconstitutional’Amushelelo and Cloete seek to have Section 179(1)(b) of the Criminal Procedure Act and Section 64(10(d) of the Banking Institutions Act declared unconstitutional. In addition, they demand that documents obtained in terms of these laws should not be allowed in their criminal trial, where they stand accused of various fraud charges.Section 179(1)(b) of the Criminal Procedure Act allows a police officer, with reasonable grounds, to serve a person written notice ordering them to attend criminal proceedings, give evidence or submit any book, paper or document.In Amushelelo and Cloete&#039;s case, this law was used to gain access to documents that included bank statements and transactions."We have the right to confidentiality and secrecy when it comes to our banking affairs," Amushelelo argued in court documents.The duo further claimed that the evidence was obtained illegally to secure their arrest and prosecution and that the ‘notices’ do not comply with the rule of law."It is clear that the section of the law can be misused because there is no judicial oversight before the notices are issued. The notices are simply issued by police officers."Determined by courtProsecutor-General Martha Imalwa denied the allegation that there is no judicial oversight for the acquisition of evidence.“The courts maintain judicial oversight by rejecting improperly obtained evidence that violates the right of an accused and a fair trial. Whether the documents are admissible or not is determined by the court,” she said.Amushelelo and Cloete further argued that the section of the Act is unconstitutional in that it does not allow an accused to make any representations before such notice is issued. This, according to them, is in conflict with Article 18 of the Namibian Constitution.They claim that section of the law also violates Article 12 of the constitution in that a notice can be issued and possible incriminating documentation be brought before court without a person’s knowledge. The accused person will therefore not be able to prepare for the consultation and cross-examination of the witnesses who may be called to testify in court, they claimed.“It is clear that the section does not comply with the constitution as there are no mechanisms to ensure a fair trial. It is clear that the prosecutor-general is currently litigating with dirty hands," court documents by Cloete and Amushelelo&#039;s legal team read.Incompetent Section 64(7) of the Banking Institutions Act prohibits the disclosure of bank records by employees of banking institutions, but - in terms of Section 64(10) - this does not apply to the disclosure of information for the purpose of criminal proceedings.Amushelelo and Cloete claimed this is in violation of Article 13 of the constitution which protects citizens’ privacy."You can sit at home, but the police are busy with a fishing expedition in your bank account without you being informed by the bank or the police," court documents read.According to Imalwa, the issue of admissibility of evidence must be determined by the court hearing the criminal proceedings by way of an internal hearing.“I submit that this court is incompetent to rule on the issue of admissibility of evidence. I submit that this application, which is criminal in nature, was wrongly and inappropriately brought before this court,” she said.“The jurisdiction of this court does not extend to dealing with applications that are of a criminal nature. I submit that this court should refuse to deal with the application and strike the case off the roll.”– kristien@republikein.com.na

Full bench hears Amushelelo's legal challenges

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Namibian Sun 2024-11-25

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Full bench hears Amushelelo's legal challenges

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Namibian Sun 2024-11-25

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