Judgement reserved on Alexander’s challenge

THE fate of Israeli-born businessman Jacob (‘Kobi’) Alexander is once more in the hands of a judge of the High Court in Windhoek.

Judge Kato van Niekerk on Thursday last week reserved her judgement on an application by Alexander in which he is challenging the constitutionality of the proclamation which specified the United States of America as a country where persons may be extradited to from Namibia.Alexander’s challenge goes to the root of the United States’ request to Namibia for Alexander’s extradition to the US. If he succeeds in his bid to have the proclamation declared unconstitutional it could spell the end of the extradition proceedings he has been facing since his arrest in Windhoek in late September 2006.The proclamation specifying the US as a country where persons can be extradited to from Namibia was signed by President Hifikepunye Pohamba on August 31 2006. The proclamation was published in the Government Gazette on September 27 2006. Alexander was arrested on the same day.The US has requested his extradition with the aim of prosecuting him on 35 criminal charges originating from allegations that he had committed fraud and other offences with the backdating of share options while he was in charge of a company, Comverse Technology Inc, in New York. Alexander has indicated that he denies all of the charges.The leader of his legal team, South African senior counsel Peter Hodes, argued before Judge Van Niekerk last week that the proclamation should be declared unconstitutional because it is aimed at Alexander as an individual. This, he argued, violates the Constitution’s prohibition of legislation which is aimed at a particular individual.Hodes also argued that the proclamation should in any event not apply to Alexander’s case, as all of the charges he might face in the US pre-date the proclamation.On behalf of the President, the Minister of Justice and the Prosecutor General senior counsel Wim Trengove agreed that the proclamation had been triggered by Alexander’s case. However, the proclamation is of general application and is not aimed at Alexander alone, which should mean that it is not contrary to the Constitution, he argued.Trengove also pointed out that the Extradition Act of 1996 specifically states that someone can be extradited from Namibia whether the offences the person is accused of were committed before the Act came into operation or thereafter. With the proclamation flowing from the Act, it should also apply retrospectively to offences allegedly committed before the proclamation came into being, he argued.The case heard by Judge Van Niekerk is the second one in which Alexander has pursued a constitutional challenge in Namibia’s courts.In the first case – in which he succeeded on appeal in the Supreme Court, after he had lost in the High Court – he managed to get a section of the Extradition Act declared unconstitutional.That section stated that once a magistrate has found that a person can be extradited to a requesting country the person must be kept in custody, with no option of being released on bail.The Supreme Court ruled in April 2010 that this denial of the right to apply for bail while an appeal against the magistrate’s order could be pending for a matter of years is a breach of the constitutional right to liberty and is unfair and arbitrary.Alexander (59) remains free on bail of N$10 million in the meantime, with no date for his actual extradition hearing set until now.He was represented by Hodes and fellow senior counsel Matthew Chaskalson and Anton Katz, instructed by Louis du Pisani, with last week’s two-day hearing.Trengove was assisted by Nixon Marcus, on instructions from Government lawyer Charles Chanda.