Thursday, October 29, 2020

Nchindo challenges Act as unconstitutional

Louis Nchindo is expected to file an application challenging the constitutionality of the Proceeds of Serious Crime Act, which is being used in a bid to restrain him from continuing with developments at his controversial plot in Gaborone Block 10.
The move follows an application filed by the Directorate of Public Prosecutions (DPP) for an order restraining Nchindo and his co-accused from any further dealings with the controversial plot “whether it be registration of subdivisions, mortgaging, reticulation, excavation, demarcation, alienation, sale, cession of rights, change of use, or any form of alteration, whether it be actual or constructive.”

Collins Newman& Co, lawyers acting for Nchindo and his co-accused, however, maintain that the restraining order may ruin the multi-million pula development on the controversial plot with knock on effects on hundreds who have bought subdivided plots, contractors and suppliers.

In a letter to the Directorate of Public Prosecutions, Collins Newman & Co state that Nchindo is planning to challenge the constitutionality of a section of the Proceeds of Serious Crime Act which deals with restraining orders.

“It is respectfully submitted that those sections, and in particular section 8, involve an infringement of an accused’s and thus our clients right to silence, as protected by section 10 (7) of the Constitution of the Republic of Botswana (the Constitution”), as well as an infringement of our client’s to a fair hearing under section 10(1) of the Constitution, and our clients’ right to protection of the law under section 3 of the Constitution.”

The law firm further argues that defending the restraining order would force their clients to reveal the basis of his defence, the evidence on which they propose to rely and the grounds on which they intend to attack the DPP’s case (whether in cross-examination or closing argument), even before the commencement of their criminal case.
“The enormous detail and weight of factual matter in the application, which preclude a cursory treatment of the merits; and (iii) the criminal trial has not yet begun, with the result that the DPP will be armed with a blueprint of the strategy, approach and evidence of the accused and their legal representatives when preparing for the start of the case. The situation would be intolerably unfair even in civil litigation. In the context of a criminal trial, and the constitutionally entrenched rights of an accused, it is completely impermissible.”

According to an earlier understating, the application was to be heard before Justice Walia tomorrow (December 22) if the Attorney General had agreed to waive the requirement of 30 days notice in the State Proceedings Act.

The Attorney General has, however, refused to grant the waiver. The DPP on the other hand said it would not go ahead with the application for a restraining order if Nchindo and his group assured them that they would not continue with developments on the controversial plot.
Nchindo has, however, refused to make the undertaking.

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