Judge orders retrial in voter fraud case
The 2014 discharge of Philemon Kanime, former ECN director, along with two others for voter registration fraud has been set aside and they have to return to court.
The former director of the Electoral Commission of Namibia (ECN) Philemon Kanime and two others, who were at the beginning of 2014 discharged of voter registration fraud, were yesterday ordered for retrial in the Regional Court in Katutura.
The High Court in Windhoek yesterday, after a successful appeal by the State, set aside the discharge of the three accused, Kanime, Magnus Nangombe and Nicodemus Mingelius, on charges of fraud pertaining to the first local authority election for Omuthiya in the Oshikoto Region.
Judge Alfred Siboleka ordered that the three accused must be subpoenaed before the same regional court magistrate for the continuation of the trial on fraud and other related charges.
“In the event of the said magistrate's unavailability the matter should start afresh before another regional court magistrate,” Siboleka emphasised.
In January 2014, the Katutura Regional Court acquitted Kanime, Rally for Democracy and Progress member and ECN employee Nicodemus Mingelius on charges of fraud in connection with the first local authority election for Omuthiya in the Oshikoto Region.
Ed Marondedze, the State advocate had argued that it was inconceivable how the court decided to discharge them when the weight of evidence pointed towards their involvement.
Nangombe and Mingelius were also acquitted of forgery, or alternatively contravention of provisions of Electoral Act of 1992, as well as a count of uttering a forged document, read with the provisions of the Electoral Act.
The State had alleged that Nangombe had failed to register as a voter in February 2008 during the gazetted period. Nangombe, allegedly with the assistance of Mingelius, subsequently registered as a voter after the dates of registration had elapsed.
He allegedly forged a registration form number 2004305280 to appear as if he had been registered by a certain Ester Nangombe, who was an accredited voter registration officer for the Omuthiya local authority elections.
Marondedze maintained that there was evidence upon which a reasonable court could find the respondents guilty as the Regional Court never discredited State witnesses, and added that the court in fact agreed with some aspects of the evidence led by the State.
He had stated the court agreed that the handwriting and signature of Ester Nangombe had been forged and that the thumbprint on the forged document belonged to Magnus Nangombe.
“It therefore appears the court did not consider the credibility of witnesses to arrive at the verdict of not guilty as charged,” he said.
The court is said to have used its discretion that there was no evidence that all three respondents were aware that the form used for the application to register as voter was not a proper one.
Siboleka stated in the summary of judgment that the prosecution witnesses placed a solid prima facie case against the three respondents at the close of its case which should have disabled the trial court from granting them a discharge in terms of Section 174 of the Criminal Procedure Act.
“It is crystal clear from the evidence that the trial court could have convicted all three accused,” Siboleka stated and added that the reason being, in the absence of accused's version, the undisputed circumstantial evidence by the prosecution would have become proof.
“A prima facie case upon which reasonable court acting carefully may have convicted the three respondents on this matter has been established,” concluded the judge.
The lawyer Rohann Linde was standing in for Advocate Albert Strydom on behalf of the respondents.
FRED GOEIEMAN
The High Court in Windhoek yesterday, after a successful appeal by the State, set aside the discharge of the three accused, Kanime, Magnus Nangombe and Nicodemus Mingelius, on charges of fraud pertaining to the first local authority election for Omuthiya in the Oshikoto Region.
Judge Alfred Siboleka ordered that the three accused must be subpoenaed before the same regional court magistrate for the continuation of the trial on fraud and other related charges.
“In the event of the said magistrate's unavailability the matter should start afresh before another regional court magistrate,” Siboleka emphasised.
In January 2014, the Katutura Regional Court acquitted Kanime, Rally for Democracy and Progress member and ECN employee Nicodemus Mingelius on charges of fraud in connection with the first local authority election for Omuthiya in the Oshikoto Region.
Ed Marondedze, the State advocate had argued that it was inconceivable how the court decided to discharge them when the weight of evidence pointed towards their involvement.
Nangombe and Mingelius were also acquitted of forgery, or alternatively contravention of provisions of Electoral Act of 1992, as well as a count of uttering a forged document, read with the provisions of the Electoral Act.
The State had alleged that Nangombe had failed to register as a voter in February 2008 during the gazetted period. Nangombe, allegedly with the assistance of Mingelius, subsequently registered as a voter after the dates of registration had elapsed.
He allegedly forged a registration form number 2004305280 to appear as if he had been registered by a certain Ester Nangombe, who was an accredited voter registration officer for the Omuthiya local authority elections.
Marondedze maintained that there was evidence upon which a reasonable court could find the respondents guilty as the Regional Court never discredited State witnesses, and added that the court in fact agreed with some aspects of the evidence led by the State.
He had stated the court agreed that the handwriting and signature of Ester Nangombe had been forged and that the thumbprint on the forged document belonged to Magnus Nangombe.
“It therefore appears the court did not consider the credibility of witnesses to arrive at the verdict of not guilty as charged,” he said.
The court is said to have used its discretion that there was no evidence that all three respondents were aware that the form used for the application to register as voter was not a proper one.
Siboleka stated in the summary of judgment that the prosecution witnesses placed a solid prima facie case against the three respondents at the close of its case which should have disabled the trial court from granting them a discharge in terms of Section 174 of the Criminal Procedure Act.
“It is crystal clear from the evidence that the trial court could have convicted all three accused,” Siboleka stated and added that the reason being, in the absence of accused's version, the undisputed circumstantial evidence by the prosecution would have become proof.
“A prima facie case upon which reasonable court acting carefully may have convicted the three respondents on this matter has been established,” concluded the judge.
The lawyer Rohann Linde was standing in for Advocate Albert Strydom on behalf of the respondents.
FRED GOEIEMAN
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