1.

Nghipunya v The Minister of Justice (HC-MD-CIV-MOT-GEN-2021-00343) [2022]

NAHCMD 510 (14 October 2022).

2. FACTS:
1. With regard to this application, the constitutionality of Section 61 of the Criminal
Procedure Act, 51 of 1977 ("CPA") as amended by Section 3 of the Criminal
Procedure Amendment Act, 5 of 1991 ("the Amendment Act") is at issue.

2. The applicant requests the following remedies::

a) A decision revising, amending, or removing a section of CPA Section 61 With

the phrase "it is in the public interest or the administration of justice",
b) That the aforementioned paragraph be amended to remove the phrase "it is in
the public interest".
c) That "it is in the interest of the administration of justice" (found in Section 61 of
the CPA) be ruled to be illegal, invalid, and devoid of all legal significance”
d) That the aforementioned paragraph be amended to have the term "it is in the
interest of the administration of justice in the administration of justice" and/or its
equivalents struck down.
e) Declaring the phrase "it is in the interest of the public or the administration of
justice contained in s. 61 of the CPA to be unconstitutional for unduly placing an
unreasonable limitation on the applicant's rights contemplated in Articles 10, 11, 12,
22, 24, and 25" unconstitutional is, in any case, necessary.2
f) If the applicant's constitutional challenge to the aforementioned provision is
upheld by the court and the court determines it is appropriate, the section will be sent
back to the legislature for revision or change. In that case, the court would exercise its
authority under Article 25 of the Namibian Constitution and order that the applicant's
bail application moving forward would not include the phrase "it is in the public interest
or the administration of justice" as it does now.

3. The court had to determine whether the phrase "the interest of the public or
administration of justice" found in Section 61 of the CPA violates the Constitution by
unreasonably restricting the applicant's rights as outlined in Articles 10, 11, 12, 22, 24,
and 25.
4. According to the principles alluded in Topic 4 of the Rule of Law, the Courts must
ensure that the law is correctly applied and that judges must apply the law, which entails
ensuring that the government does not violate human rights. The law is a powerful
instrument that must guard individual against injustice and make sure we are not treated
unfairly or subjectively deprived of our rights. The Basic Rights and Freedoms of Humans
are outlined in Chapter 3 of the Constitution. The CPA's section 61 phrase "it is in the
public interest or administration of justice" violates human rights, and the applicant is not
protected by the law.

5. The following general categories are used to determine whether Section 61 is

constitutional: (i) interpretation of Article 7; (ii) Namibian bail law; (iii) the provisions of
Section 61 and how they have been interpreted in Namibia; (iv) a comparative study of
other jurisdictions' interpretations of provisions similar to Section 61 (this will include the
Morales judgment referred to by the applicant); and (v) whether the provisions of Section
61 are constitutional.

The Supreme Court further clarified that Article 7 is not absolute because it permits the
restriction of liberties in accordance with legal processes. Where such a restriction is
permitted, it should not go beyond what is required to fulfill the purpose for which it was
authorized. This much is also clear from the language of Article 22, which forbids any
restriction that invalidates the core idea of the right. Therefore, the question is whether a
limitation of a constitutional right amounts to an excessive interference with the
applicant's right to liberty and right to a fair trial, if the Constitution permits such an
interference.

In accordance with Section 3 of the Criminal Procedure Amendment Act 5 of 1991, the
phrase "in the interest of the public or the administration of justice" found in Section 61 of
the Criminal Procedure Act, 1977, is thus declared illegal, null, and void, and of no force
or effect. For revision, the National Assembly is tasked with reviewing the aforementioned
law. Within a year of the date of this ruling, the declaration of invalidity will not take effect.