AN ATTEMPT by former Roads Contractor Company chief executive officer Kelly Nghixulifwa to persuade a judge to throw out or amend eight of the 11 charges on which he is due to be prosecuted has fallen flat in the Windhoek High Court.
The charges in which Nghixulifwa and two co-accused are accused of having contravened the Anti-Corruption Act during his tenure as CEO of the state-owned RCC sufficiently inform them of the case they have to meet, judge Christie Liebenberg said in a ruling delivered in the High Court on Wednesday.
He also ruled that the three accused would have to have to cite interested parties like the attorney general, the prosecutor general and the director general of the Anti-Corruption Commission if they wanted to question the constitutionality of a section of the Anti-Corruption Act.
With Nghixulifwa having further objected to three fraud charges in which the prosecution made reference to a section of the Criminal Procedure Act that holds a director of a corporate body liable for crimes committed by it, the judge noted that Namibia’;s Supreme Court already found that section of the law to be constitutional. He remarked that the reference to the Criminal Procedure Act’;s section 332(5) would not require the three accused to make any significant changes to their defence or prejudice them.
With his ruling, judge Liebenberg refused an application by Nghixulifwa, supported by his co-accused and alleged business partners Anna Ndoroma and Hafeni Nghinamwaami, to have five of the charges he is facing thrown out of court and to have three further counts of fraud amended.
Nghixulifwa, Ndoroma and Nghinamwaami are facing charges in connection with the Roads Contractor Company’;s involvement in the B1 City property development project in Windhoek and the construction of the RCC head office more than ten years ago. Nghixulifwa is charged with 11 counts, while Ndoroma and Nghinamwaami are each facing four charges.
The charges against Nghixulifwa are four counts of corruptly using an office or position for gratification, four counts of fraud, two charges of failing to disclose that he had an interest in companies with which the RCC did business, and one count of dealing with gratification derived from corruption.
Ndoroma and Nghinamwaami are each charged with three counts of fraud and one count of dealing with gratification derived from corruption.
A day before their trial was scheduled to start following more than four years of pretrial hearings in the High Court, one of Nghixulifwa’;s defence lawyers notified the prosecution in early September that he would be objecting to eight of the eleven charges on which he had been arraigned.
Part of the objections raised against the charges was based on an argument that the charges of the corrupt use of an office or position for gratification, and also the count of dealing with gratification obtained through corruption, are premised on an allegation that the RCC is a public body and that as CEO of the parastatal Nghixulifwa was a public officer. Senior counsel Vas Soni, representing Nghixulifwa, argued during a hearing on 13 September that the RCC is not a public body and that Nghixulifwa was not a public officer during his employment as its CEO.
On that issue, judge Liebenberg said the question whether the RCC was a public body and its CEO a public officer as defined in the Anti-Corruption Act was something the court would have to decide after oral evidence on it had been heard during the trial.
The three accused, all free on bail of N$60 000 each, have to make another court appearance on Wednesday next week.
Silas-Kishi Shakumu is representing Ndoroma, while Nghinamwaami is being represented by Kadhila Amoomo. Hesekiel Iipinge is representing the state.
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