Hatuikulipi's POCA challenge flops
Judgment delivered yesterday
The Fishrot accused's constitutional challenge of the Prevention of Organised Crime Act was dismissed yesterday.
"The court found that court proceedings in relation to restraining orders are civil and not criminal, and that the right to presumption of innocence in terms of Section 12 of the Namibian Constitution does not apply."
Judge Collins Parker said this yesterday in his judgment in which he dismissed Fishrot accused James Hatuikulipi's constitutional challenge of the Prevention of Organised Crime Act (POCA).
Hatuikulipi claimed sections of POCA infringed on his constitutional right to be presumed innocent, as well as his constitutional right to the protection of intellectual property.
"The court further found that a restraining order aimed at preserving the assets of an accused pending the conclusion of his criminal trial does not infringe his rights under Article 16 of the constitution," the ruling, which judges Shafimana Ueitele and Herman Oosthuizen agreed with, read.
Unfettered discretion
Hatuikulipi's application also sought to have the restraining order barring him from accessing his assets set aside. He argued that the court requires "no evidence" to grant an application for a restraining order and that the "reasonable grounds test" - which forms the basis for such an order - is unconstitutional.
During the hearing, Hatuikulipi argued that the attorney-general has the power to use unfettered discretion to determine against which persons to make an application for a restraining order.
"Such untamed discretion is not in line with the constitution."
Judge Parker pointed out that if Hatuikulipi were to be successful in his challenge of POCA, it would mean that a restraining order would only apply after the conclusion of a criminal trial.
"The applicant's challenge seeks to throw out restraining orders in their entirety. This would mean that Namibia is not fulfilling its international obligations. This, in turn, will be bad for the achievement of the rule of law and public order," he said.
40 charges
Hatuikulipi was arrested in November 2019 and faces 40 charges, which include racketeering, money laundering and fraud. On 11 November 2020, Prosecutor-General Martha Imalwa applied to the High Court for a preliminary restraining order against him, which the court granted.
Hatuikulipi filed the case at the Windhoek High Court against Imalwa, Attorney-General Festus Mbandeka and justice minister, Yvonne Dausab.
– [email protected]
Judge Collins Parker said this yesterday in his judgment in which he dismissed Fishrot accused James Hatuikulipi's constitutional challenge of the Prevention of Organised Crime Act (POCA).
Hatuikulipi claimed sections of POCA infringed on his constitutional right to be presumed innocent, as well as his constitutional right to the protection of intellectual property.
"The court further found that a restraining order aimed at preserving the assets of an accused pending the conclusion of his criminal trial does not infringe his rights under Article 16 of the constitution," the ruling, which judges Shafimana Ueitele and Herman Oosthuizen agreed with, read.
Unfettered discretion
Hatuikulipi's application also sought to have the restraining order barring him from accessing his assets set aside. He argued that the court requires "no evidence" to grant an application for a restraining order and that the "reasonable grounds test" - which forms the basis for such an order - is unconstitutional.
During the hearing, Hatuikulipi argued that the attorney-general has the power to use unfettered discretion to determine against which persons to make an application for a restraining order.
"Such untamed discretion is not in line with the constitution."
Judge Parker pointed out that if Hatuikulipi were to be successful in his challenge of POCA, it would mean that a restraining order would only apply after the conclusion of a criminal trial.
"The applicant's challenge seeks to throw out restraining orders in their entirety. This would mean that Namibia is not fulfilling its international obligations. This, in turn, will be bad for the achievement of the rule of law and public order," he said.
40 charges
Hatuikulipi was arrested in November 2019 and faces 40 charges, which include racketeering, money laundering and fraud. On 11 November 2020, Prosecutor-General Martha Imalwa applied to the High Court for a preliminary restraining order against him, which the court granted.
Hatuikulipi filed the case at the Windhoek High Court against Imalwa, Attorney-General Festus Mbandeka and justice minister, Yvonne Dausab.
– [email protected]
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