Chapter 6

LEGISLATION AND ORGANISED CRIME IN NAMIBIA

Introduction

In the United Nations Convention Against Transnational Organised Crime, the concept ‘organised crime’ is not defined. What are defined, are the terms ‘organised criminal group’ and ‘structured group’.

The concept of being organised, in general, connotes the formation into a whole with interdependent parts to give an orderly and systematic structure to something. Being an organisation means consisting of dependent and interdependent parts or consisting of mutually connected and dependent parts constituted to share a common goal or common objectives. In the context of organised crime, there is not only a connotation of structural form, there is also an indication of premeditation, planning and execution. The organisation can be for a specific criminal enterprise, or it can be for a series of criminal operations. The participants may get together for a once-off operation, or they may be constituted with some degree of continuity or permanence. Because of this, the process of combating organised crime is made complex by the problems associated with identifying not only the criminal groups, but also their members.

For the purposes of this discussion, the question is approached in the broader context of premeditated, planned criminal conduct involving two or more persons either constituted as a group, or as individuals associating and participating with one another in the perpetration of criminal enterprise.

Namibia is a Roman Dutch common law jurisdiction. Its politico-legal history is well documented. The sources of law are its Constitution, the common law, legislation of successive legislative bodies since 1884 and judicial precedents. In addition, Namibia has acceded to and ratified various international legal instruments since independence.

Common law crimes recognised in Roman Dutch jurisprudence are part of Namibian criminal law. However, these crimes are not adequate to cater for the broad spectrum of human conduct and public interest requiring controls by recourse to the criminal justice system, hence the need for legislative initiatives.

In common law, the recognised ingredients of a crime are the presence of an act (actus reus) accompanied by the requisite state of mind (mens rea) in the form of intention or negligence. There are conceivable instances, however, when reprehensible conduct only is present without the requisite intent. Sometimes such conduct does further the commission of a crime.

While the common law recognises inchoate crimes as well as conspiracies to commit crimes and, as such, the concepts of accomplices (socius criminii) and accessories (before and after the fact), the common law has proven insufficient to address the problems encountered in the criminal justice arena with regard to issues of criminal liability.

In the case of criminal conduct involving a group of persons, the so-called doctrine of common purpose has regularly been invoked. The doctrine has its own critics, however. The major criticism against it is that it flies in the face of the very foundation of criminal liability which states that, before a person is convicted of a crime, both the act and the guilty intent must be present.

Further, problems are frequently encountered in the proof of facts peculiarly within the knowledge of the accused. This is as a result of the onus resting on the state to prove all the essential elements of a crime or offence. In this regard, legislation has been used to address the problems with some degree of success. This has been achieved through so-called reverse onus provisions or presumptions.

With the advent of modern constitutional regimes and the emergence of modern democratic states, like Namibia, which are founded on constitutions that enshrine basic individual rights, this option is being curtailed.1

The incidence of organised crime in Namibia

It is a matter of public knowledge that a gang known as the Red Eye Gang has existed in Namibia for some time. The identities of members of the gang are matter of speculation, whisper and rumour. However, some of the persons rumoured to be members of the gang are known to lead flamboyant lifestyles without keeping regular employment. They are also known to associate with well-known illegal diamond dealers. The Red Eye Gang is generally linked to illegal diamond-dealing.

At local level, organised crime tends to be associated with illegal diamond-dealing, robbery (particularly armed robbery), burglary with intent to steal, the theft of and from motor vehicles, shoplifting, fraud and corruption involving public institutions and schemes, illegal drug-trafficking, illegal hunting of protected species, illegal dealing in weapons and foreign currency, and smuggling.

Murder is often committed during the course of armed robbery. Notorious criminals have records of being involved in the commission of murder, armed robbery and burglary. In a number of cases, the same names have featured in different combinations with others, suggesting that these persons are somehow connected in an organised fashion. They also tend to be the same ones involved in escaping from prison time and time again, only to be rearrested after committing similar crimes.

In a number of cases, Namibian residents or nationals have been involved with foreign nationals in the commission of cash-in-transit armed robberies, diamond-dealing and drug-trafficking. Such cases have often been very serious involving huge sums of money or large quantities of dangerous drugs such as cocaine, methaqualone (mandrax) and marijuana.

Some cases dealt with by the courts may be pertinent and are discussed below.

Armed robberies

The Karibib heist

A security company was contracted to carry N$5 million from Windhoek for distribution to several banks and financial institutions in the Erongo region in the western part of the country. A small aeroplane was used for the purpose. Upon arrival at the Karibib airstrip, a small and infrequently used landing strip located in a remote area, the crew were accosted by several armed men who robbed them of all the money.

It emerged during investigations that one of the security guards on board was involved. Other persons involved in the conspiracy to rob and the actual robbery included a retired and a serving policeman. They were all Namibians, but there were also several South Africans involved.

On account of errors made at the scene by the criminals, including the abandonment of a marked belt by one of the South Africans, and their failure to rob one of the victims of his mobile phone, the police were contacted, resulting in the prompt apprehension of the criminals and the recovery of the money.

One of the interesting pieces of circumstantial evidence that the state wanted to rely on to prove the involvement of the serving member of the police, were numerous telephone calls he made to his brother on his mobile phone during the period when the robbery was in progress. Unfortunately, the court was not satisfied that the circumstantial evidence was sufficiently cogent to prove his guilt and he was acquitted. The majority of the accused were convicted and sentenced to lengthy prison terms.

The Brakwater heist

At the time of writing, this case was still pending. It emanated from a cash-in-transit armed robbery of the largest amount in Namibian criminal history — over N$6 million. Again, it appears to have been an inside job involving Namibian and South African nationals.

One of the alleged accused was shot by a security guard at the scene. During follow-up investigations, some of the other suspects were arrested in Cape Town a few days later. Some property and a significant amount of cash were recovered.

These suspects are currently on remand in Cape Town awaiting extradition to Namibia. The other suspects are appearing in Windhoek.

There have been other reported cash-in-transit robberies before these two. A common thread running through all is the collusion between employees of security companies and outsiders. In a number of instances, some of the outsiders have been criminals from South Africa.

It can be concluded that the robberies have been committed with a remarkable degree of sophistication and enterprise by a well co-ordinated network of criminals operating between Namibia and South Africa.

Drug-trafficking

In the past few years, a number persons found in possession of mandrax, cocaine and marijuana have been arrested. Invariably, the accused have tended to be a combination of Namibian nationals and foreigners, including South, West, East and Central Africans.

In a case in 1998, a resident Nigerian married to a Namibian was arrested with a ‘Zambian’ national and a South African truck driver on their way to South Africa. The Nigerian and ‘Zambian’ had concealed themselves in the back of a heavy commercial truck driven by the South African. When the truck was stopped at a roadblock, the two stowaways — who were suffocating in the tent — drew the attention of the police to their presence on the truck. In the luggage of the ‘Zambian’ man, several pairs of ladies’ shoes were found. Upon examination, it appeared that the soles had been tampered with. Each of the shoes was opened and it was discovered that each sole contained several grams of cocaine. The cumulative total was about four kilograms of pure cocaine. The ‘Zambian’ admitted his involvement, but exonerated the South African truck driver and the Nigerian.

Further investigations revealed that he was in fact not a Zambian but a Tanzanian national travelling on a false Zambian passport. It also transpired that the Nigerian and the Tanzanian had tried to enter South Africa through a border post which is not usually used a few days before. They had failed to reach the border post after the Nigerian’s vehicle, in which they were travelling, overturned. They then decided to hitch-hike. The Prosecutor-General, apprehensive that the state would not be able to prove a case against the two who denied involvement or knowledge of the contents of the Tanzanian’s luggage, decided to prosecute the Tanzanian only.

Other notable arrests have been made of persons at a local bus station. In one instance, a Namibian and a South African were arrested before boarding a bus bound for Gauteng. They were in possession of cocaine.

In a more recent case, a South African woman, who was in possession of cocaine, was arrested upon alighting from an Inter-Cape coach. The cocaine had been concealed in a loaf of bread in a basket which she was about to pass on to someone else.

In yet another case, a Namibian national and two South Africans were arrested under a bridge while in possession of bags containing several kilograms of marijuana. The Namibian exonerated the South Africans and pleaded guilty.

In a case which occurred early in 2001, the son of a well-known member of parliament was arrested outside a popular nightclub in a police sting operation. He and the manager of the nightclub had attempted to sell cocaine to police officers in the early hours of the morning. The nightclub was closed on the orders of the police despite its owner’s protestations of innocence. The politician’s ‘S’ class Mercedes Benz motor vehicle, which his son had been using, was impounded.

These cases show that Namibia is not only being used as a transit route for drugs to South Africa, but that some of the drugs are actually consumed locally.

Illegal diamond-dealing

Namibia has been a diamond producer for several decades, and is one of the highest gem quality diamond producers in the world. Because of the very high value attached to diamonds and the lucrative profits that can readily be made illegally if a person has access to diamonds, it is not surprising that this is an area in which organised criminal activity is rampant. The diamond industry is a heavily regulated environment, underscoring the importance attached to it by the state.

The range of crimes provided for under successive legislation has increased in proportion to the perceived need to protect the industry. Draconian penalties are provided for would-be offenders. Strict controls are required from all operators in the industry and severe penalties are imposed for failure to maintain the prescribed standards.

Notwithstanding this, however, diamonds are still stolen through various means and dealt with outside the normal channels. Cases that have come before the courts suggest the involvement of organised crime syndicates in the theft and marketing of diamonds. There is an undoubted international dimension to the illegal trade in diamonds. In the experience of Namibia, some of the illegal buyers are from Europe, the Middle East, South Africa and Angola. The involvement of foreign buyers is indicative of the fact that there are effective communication channels between locals and foreigners. It is therefore apparent that, in order to increase the rate of detection and interdiction, advanced methods of surveillance including wire-tapping are necessary.

Problems of detection make it imperative for diamond-mining companies and the Protected Resources Unit of the police to offer incentives to their security officers and informants to obtain information on who is involved and when deals are about to be made. This entails the use of traps to detect and apprehend offenders. In a number of instances, some traps have had tragic consequences.

Burglary

As is the case with many countries in transition, burglary is one of the most prevalent crimes in Namibia. The cases investigated by the police show that this is a serious problem for the community. The mushrooming of private security companies and the faith placed in and reliance on them by the public are clear indications of a proliferation of the problem, especially in urban areas.

In most reported cases, there has always been evidence of the involvement of more than one person and the use of vehicles such as taxis.

Burglars are invariably attracted to electronic equipment such as sound systems, televisions, video cassette recorders, computers and microwave ovens, which are easy to remove and to dispose of or sell. Most of the stolen goods are never recovered, suggesting a low risk of detection and apprehension which, in turn, encourages criminals to commit more burglaries.

In many instances, the police do not have leads, such as fingerprint evidence and, as such, have to rely on information. However, Namibian society tends to shun those who inform on others. This is perhaps attributable to the country’s relatively recent pre-independence history. This makes the task of law enforcement extremely difficult.

The stolen goods are usually sold far away from the place where the theft was committed. These goods are normally taken to the former Ovamboland in the extreme north of the country. Some goods are even exported to Angola. Police sources believe that Angolans and Namibians are involved in these activities at an organised level.

Many a suspect absconds to Angola, a country with which Namibia does not have formal extradition arrangements, thus frustrating efforts at mounting successful prosecutions. The unfavourable political and military situation between the two countries compounds the problem.

Fraud and corruption in state institutions

Low levels of qualified and experienced public servants afflict the Namibian public service. This is a historical problem that will take some time to address. The situation, however, leaves itself open to manipulation by criminally inclined persons from within and without the public service.

In the nature of government operations, business is conducted through a series of processes and transactions involving different persons at different stages. In the process, different ministries have to work together. At the same time, contacts are established between officials in different ministries or departments. While this may assist in the expeditious processing of government business, it may also have the unintended consequence of fostering relationships conducive to fraud and corruption.

In the presence of inadequate controls and systems, connivance between officials and misplaced trust can facilitate the commission of crime.

The Ministry of Finance, which effects all government payments is particularly vulnerable. In a number of cases, employees of other ministries have successfully created ghost employees and pensioners and submitted requests for payment. In other cases, fraudulent claims for payment for services not rendered have been made.

In several fraudulent medical aid claims, accounts prepared by individuals, sometimes with the collusion of pharmacists and doctors, have been paid. In a recently detected case, a pharmacist established a credit facility for her customers in terms of which they could buy any of the products in stock on credit. As the pharmacist was also in the business of stocking items such as electronic goods and toiletries, customers could even buy a television set on credit. As their levels of indebtedness increased, customers were instructed to authorise the pharmacy to recover the monies through submissions of false medical aid claims. They were encouraged to do this by signing blank claim forms. Further, medical prescriptions were forged so that they could be repeated several times or by making additions to the medicine genuinely prescribed. The pharmacist then prepared the claims and submitted them to the ministry with instructions for the collection of the cheques when ready or their postage to specific addresses. She also cultivated a network of collaborators in the ministry who hastened the processing of claims, frequently circumventing established procedures and even collecting the cheques themselves for delivery to the pharmacist. The cheques would then be deposited into accounts owned or controlled by the pharmacist and immediate members of her family. The banks facilitated the deposits, notwithstanding the fact that the account holders and payees, as stated on the cheques, differed. Some of the cheques were fraudulently endorsed to another person to facilitate deposit and clearance. Other cheques were simply used to purchase goods in supermarkets in order to obtain cash. The shops involved never asked questions or obtained identification of the persons cashing the cheques. Cheques were also deposited into accounts held in the names of untraced and untraceable people. Almost N$2 million was stolen in this way.

Upon investigation, it was found that bank officials who opened the accounts did not follow proper procedures. For example, unacceptable forms of identification were used, suggesting collusion with employees of the banking institutions. Automatic teller machine cards were issued, facilitating withdrawals which, in many instances, were done in a short period of time. Although the ‘patients’ knew what was going on, they did not have insight into the details and, even if they came to know later on, they were inhibited from raising the hue and cry because they risked being prosecuted.

When the matter came to light, the pharmacist, who is believed to be a South African citizen, fled to Cape Town where she is suspected to be taking refuge.

It is not uncommon for many people residing in Namibia to hold South African citizenship and after committing crimes that are detected, flee to South Africa.

Over the years, extradition of such people has proven to be almost impossible, despite the existence of formal extradition arrangements between Namibia and South Africa.

One of the biggest scams involving public finances occurred in 1992 when the government set up a subsidy scheme to assist drought-stricken farmers. In terms of the scheme, needy farmers were to be identified by agricultural extension officers. They had to complete certain forms that, among other details, indicated how many head of cattle they owned. An important requirement under the scheme was that the farmers had to provide a contribution of 10% of their calculated needs, which they were to pay upfront when making a purchase of stockfeed from suppliers. The supplier would provide the stockfeed and claim the balance from the government through the Ministry of Agriculture. The majority of farmers, predominantly small-scale indigenous farmers, failed to raise their contribution. Instead, they claimed the proportion of their contribution in cash from the suppliers, obtained little or no stockfeed and surrendered the claim forms to the suppliers who then claimed the full 100% from the government as if supplies had been provided. In this way, the unscrupulous suppliers and the farmers colluded in defrauding the government of more than N$6 million.

During the prosecution of the suppliers, the key state witnesses were all accomplices. In many instances, it was impossible to prove the non-delivery of stockfeed as the indigenous farmers did not give reliable testimony and documentary evidence was missing. To make matters worse, the accused approached certain witnesses to influence their testimony in court, conduct which led to further charges against them. Towards the conclusion of the trial, the offices of the prosecutor and the presiding magistrate were broken into. The crime docket, the manual record of the proceedings and the sound recordings were all stolen. The culprit was never found and, following an arduous reconstruction of the record, the accused were all acquitted.

These examples indicate that organised criminal activity is prevalent in Namibia at both local and transnational levels. They also highlight some of the conditions that facilitate the perpetration of organised crime.

As pointed out earlier, most of this kind of criminal conduct is chargeable under one or more of the recognised common law crimes. Where this is not possible or insufficient, the common law is supplemented by legislation.

Namibian legislation and organised crime

Namibia gained independence from South Africa in 1990. Since then, new legislation has been passed by the legislature. Some of the legislation has broken new ground in addressing issues of public importance not previously dealt with, while other legislation has been passed to repeal and replace colonial legislation. In addition, numerous colonial statutes are still part of Namibian law, for example, the Criminal Procedure Act (Act no 51 of 1977).

Organised criminal activity is primarily preoccupied with making financial profit. Thus, it is prevalent in those sectors of commercial enterprise where maximum financial gain can be achieved with minimum effort. In these sectors, Namibia has some significant legislation in force. However, the legislation does not appear to have been passed with the specific aim and object of combating organised crime. It would rather have been enacted to address a specific area of public interest, but can incidentally be utilised to combat organised crime. Such provisions may pertain to the creation of criminal offences and penalties and the imposition of regulatory measures.

Because of this, modern thinking about the nature and various forms of organised crime, its incidence, methods of detection, interdiction and prosecution is not adequately encapsulated in the respective provisions. Some of the legislation is inherited from previous legislatures, while other legislation is post-independence.

Commercial and financial legislation

Examples of useful legislation in the commercial and financial services sector include the following:

Banking Institutions Act (Act 2 of 1998);

Bank of Namibia Act (Act 13 of 1997);

Customs and Excise Act (Act 20 of 1998); and

Prevention of Counterfeiting of Currency Act (Act 16 of 1965).

The Bank of Namibia Act establishes the mother bank and provides for other matters related to the currency of Namibia and counterfeiting offences. The powers of the Bank and its relationship with other banking institutions, as well as the obligations of these banks are set out in the Banking Institutions Act.

It is well-known that organised criminal groups have an interest in the legitimisation of the profits of criminal enterprise. This means that they have to funnel such profits through legitimate financial channels and banking institutions.

The integrity of the financial services sector is seriously undermined if it allows ill-gotten gains to find their way into the legitimate market. To this end, a well-regulated financial services sector is not only important to frustrate the efforts of criminals, but also for public confidence in the banking sector.

The Banking Institutions Act (Act 2 of 1998)

The Act makes provision for the authorisation of persons to conduct business as a banking institution; the control, supervision and regulation of banking institutions; and the protection of the interests of depositors, among others.

The powers of the Bank of Namibia with regard to its relationship with banking institutions are set out. These include powers to grant banking licences and to investigate instances of illegal banking activity. In the exercise of such powers, the Bank can question persons including auditors, directors, members and partners, to compel the production of books and documents, to examine such documents and books and call for explanations, and to order banking institutions to freeze accounts and retention of money pending further instructions. The Bank also has the power to suspend operations or, in the event of conviction under the Act for illegal banking activity, to close down the business.

The Bank may also call upon the police for assistance in the enforcement of its powers, and has wide powers to enter, search and seize evidence.

To protect the integrity of the financial sector, the Bank has the power to inquire into the integrity of any person seeking to acquire or control a banking institution. The Bank will only approve if it is satisfied that the person is fit and proper.

The Bank can also prohibit a person from acquiring or exercising control by written notice if the individual concerned is not a fit and proper person in its opinion. Hence, the Bank can protect the banking sector from infiltration or control by organised crime syndicates. Furthermore, the Bank has the power to examine the financial affairs of any banking institution to ascertain its liquidity and viability.

The Bank has the power to require banking institutions to report to it or any person or authority specified by it any suspicious financial transaction that may indicate that the person involved in the transaction may be engaged in an illegal activity. This provision is useful as it facilitates the tracing of the proceeds of crime and helps to establish an audit trail in the event of a criminal investigation.2

Concerning bank secrecy and confidentiality, the Bank is authorised to disclose information acquired by it, subject to the confidentiality of the information transmitted, to an authority in Namibia or in a foreign state which has supervisory responsibilities in respect of financial institutions. In this respect, the Bank can be of assistance in the process of obtaining evidence.

Banking institutions are also required to obtain and maintain details of their customers meticulously. This enables banks to know their customers, which may help to control money-laundering.3

Although directors or officers of banking institutions are bound to secrecy and confidentiality, an exception is recognised in the disclosure for the purpose of instituting criminal proceedings or in the course of such proceedings, or if disclosure is otherwise permitted in terms of the provisions of the Act or by any other law.

Banking institutions are also authorised to disclose information to a police officer investigating an offence under a law. The disclosure of such information is limited to the affairs or account of the customer who is a suspect in the investigation.

It is clear that the Act has useful provisions which may be utilised to combat organised crime. These include the powers to freeze accounts, compel disclosure, and to impose reporting obligations on banks.

The Bank has the power under section 71(3)(b) of the Banking Institutions Act to issue general determinations on any matter for the proper regulation of the financial sector. Using this authority, the governor of the Bank of Namibia issued General Determinations on Fraud and other Economic Crime Government Notice No 16 of 1999, and published them in the Government Gazette of 15 January 1999. In an introductory overview, the governor wrote:

"Given the growing incidence of fraud and other forms of financial and economic crime in a global perspective, banking institutions should be continually vigilant against such undesirable activities. Apart from causing financial loss to the banking institutions the various forms of economic crime may have far reaching consequences, not only to the afflicted banking institution but can also undermine public confidence in the banking system. Banking institutions are therefore required to bolster their surveillance systems and institute adequate and appropriate internal controls in combating fraud.

While it is accepted that there are costs attached in stepping up anti-fraud efforts and in placing improved control mechanisms, banking institutions should bear in mind that their costs represent additional barriers and hence costs to the criminal also. The prevention of fraud and other forms of economic crime should be regarded as part of risk management.

Given the far reaching consequences of fraud, the Bank of Namibia deems necessary the setting up of a reporting mechanism and a database on the perpetration of these activities in Namibia. It is envisaged that the reporting mechanism and the database will constitute an effective means to monitor and keep abreast of these undesirable activities and to coordinate measures and develop strategies in the war against economic crime."

In terms of this determination, banking institutions are obliged to report to the Bank any fraudulent or criminal activity, or attempted criminal activity perpetrated against and involving the banking institutions whether by insiders or outsiders.

Banking institutions must report:

each individual case involving an amount of N$10 000 or more within 14 days of detection of the fraud or attempted fraud;



the amount estimated to be recovered including from any claim against a third party such as insurance; and



immediately by telephone or otherwise, any fraud perpetrated upon the institution involving an amount exceeding N$500 000.

Inquiries to the Bank raised some interesting issues relating to the attitudes of banking institutions. It was reported that most banking institutions prefer to report to their principal offices in South Africa instead of the Bank of Namibia. It was not clear whether this is engendered by a lack of confidence in the central Bank or historical practices. It was pointed out that the fact that the Bank is a relatively new institution with little experience may be a contributory factor.

However, an instance involving a report made to the Bank concerning millions of dollars which passed through the account of a Chinese trinket shop within a short period of time, was cited as one example where a banking institution did report the suspicious movement of money. The matter was not pursued and therefore it is not known whether the money was the proceeds of criminal activity being laundered or not.

The fact that activity on the account was monitored and reported demonstrates that the system can be utilised to target criminal activity and facilitate the creation of an audit trail. It also demonstrates that banking institutions in Namibia are not immune to international criminal activity.

In an article in the Hume papers, Tom Sherman wrote:

"virtually no type of financial institution is immune from money laundering — the more so as anti-laundering measures are brought into effect in the banking sector."4

One noteworthy criticism of the Banking Institutions Act is the fact that it does not cover other financial institutions that are not banks. There appears to be a need for more legislation in this area.

It has been pointed out that organised criminal activity can cut across the whole spectrum of the financial sector.5 Detective Chief Inspector Hill wrote in an article:

"The examples given are intended to focus on all stages of the money laundering cycle: placement, layering and integration. It is not just banks, but all types of financial institutions, both in the financial sector and outside which may be used by money launderers."

The Prevention of Counterfeiting of Currency Act (Act 16 of 1965)

This is an Act of the South African parliament which is still applicable in Namibia. It was specifically made applicable to South West Africa (Namibia) at the time of promulgation. It deals comprehensively with offences related to the counterfeiting of current notes and coins. It includes the performance of any part of the process of counterfeiting, forgery, uttering, illegal importation and exportation of counterfeit coins and notes; the possession of counterfeit tools and equipment; and fraudulent conduct related to counterfeit currency. Severe prison terms are stipulated. There is no provision for fines.

The Act also provides for extraditable currency offences in certain circumstances. If the Republic of South Africa acceded to the Geneva Convention for the Suppression of Counterfeiting Currency (1929), and a person is accused or has been convicted in the jurisdiction of a foreign state of specified counterfeiting offences, and an extradition treaty is in force with such a state and this state has signed and ratified or acceded to the Convention, such a person may be surrendered to the state in question.

In prosecutions for the illegal importation, exportation or possession of gold or silver bullion and dust solution, among others, the onus of proving lawful authority is shifted to the accused. With regard to the provisions of the Constitution of Namibia and existing decisions, it is probable that the Supreme Court would strike down this provision as being unconstitutional.6

This Act is particularly relevant in Namibia because there is a high incidence of counterfeit currency, particularly US dollars, because of the unstable situation in Angola and the Democratic Republic of Congo, where monetary transactions have to be conducted in US currency. There is therefore substantial movement and informal trading between Angola, in particular, and Namibia, and many instances of counterfeit US dollars being found in Namibia suggest organised trafficking and importation.

Currency and Exchanges Act (Act 9 of 1933) and Exchange Control Regulations (GN 111/95)

These are also South African statutes which are still applicable in Namibia. They provide the regulatory framework for exchange control and offences which may be committed in this sector.

The Bank of Namibia is responsible for the administration of the Act. It does so by issuing directives to banking institutions concerning exchange controls, including directives on issues relating to procedures to be followed where money is exported, limitations of amounts, and other restrictions. On a day-to-day basis, banking institutions are responsible for applying to the Bank for exchange control authority on behalf of their customers. These provisions may help to prevent capital flight and money-laundering.

Customs and Excise Act (Act 20 of 1998)

This Act contains a number of provisions which can be used to combat transnational organised crime. The movement of persons and goods across borders can be a feature of organised criminal activity. In this respect, provision is made to deal with incidents of smuggling under section 14.

Persons entering or leaving Namibia are required to declare ‘unreservedly’, at the time of entry, all goods in their possession which were purchased or acquired outside Namibia, or were remodelled or repaired outside Namibia or which are prohibited, restricted or controlled under any law. On departure, all goods being exported must also be declared. Such persons are required to comply with any request or instruction of a customs officer and, where necessary, to pay the relevant duty. The controller has the power to detain persons suspected of violating the provisions of the Act until their appearance in court.

Failure to comply with the provisions of section 14 is a criminal offence in terms of section 91. Severe penalties are stipulated. An offender may be liable for a fine of up to N$8 000 or to an amount three times the value of the goods, whichever is the greater, or to imprisonment of up to two years, or to both the fine and imprisonment. The goods involved are liable to forfeiture.

A number of arrests have been made recently of foreign nationals attempting to export illicit drugs, particularly methaqualone (mandrax), marijuana and cocaine, from Namibia to South Africa. While it has been obvious that Namibia was not the source of the drugs, it has been assumed logically that such drugs have been imported into Namibia overland from neighbouring countries for onward transfer to South Africa where there is a market. Thus, Namibia has been used more as a transit state than a final destination for illicit drugs. Evidence suggests that the tide is changing.

Criminals have taken advantage of the fact that Namibia has relatively little experience in customs regulation and enforcement. Furthermore, the national police service has severe limitations in terms of functioning as a police force, let alone to combat organised criminal activity. Prior to independence, there was no independent customs regime for South West Africa. The South African Customs Department was responsible for South West Africa. A Namibian customs department was only established after the country gained full independence in 1990. This also explains why the Namibian legislation was only promulgated in 1998.

Criminals have also taken advantage of the fact that Namibia is a vast, sparsely populated country with land borders that are not well staffed.

One case which fell under the provisions of sections 14 and 91 of the Act, was the case of the State v Gallit Kramash.7 The state had difficulty to prove that the accused had the requisite mens rea in the sense of knowledge of unlawfulness when she entered Namibia with 27 kilograms of diamonds and failed to declare them to customs at the Windhoek International Airport, despite the suspicious circumstances under which she entered Namibia from Angola. Had she been carrying drugs, the result would probably have been the same.

Customs officials are authorised to open and examine any container or package in the absence of the importer or exporter. Before doing so, all reasonable efforts must be made to find the importer or exporter to appear and be present when containers are opened. It appears that this provision contemplated genuine and legitimate importers and exporters. However, the fact that customs officials have such power is useful. The one criticism against the provision is that it does not go far enough to authorise the interception, opening, resealing and continued passage of parcels containing illicit goods such as drugs to their intended destination with the ultimate objective of identifying persons engaged in criminal activity in the ‘controlled delivery’ situation. An insertion of a provision clearly spelling this out would be beneficial.

Other provisions make it a criminal offence to reward any officer or any person employed by the government in respect of the performance by such official or person of his or her duties of employment, or to conspire with such a person, as well as for the converse situation where an official or government employee solicits a bribe. Thus, conduct of a corrupt nature is specifically addressed in the Act.

The penalty provisions for offences under the Act are generally framed with the specific objective of financially taxing the offender as these offences are profit-motivated.

A provision which implicitly touches on the issue of organised crime within the localised environment of customs control provides that any person who makes or attempts to make any agreement with a supplier, manufacturer, exporter or seller of goods imported or to be imported into, or manufactured or to be manufactured in Namibia or any agent of such, regarding any matter to which the Act relates with the object of defeating or evading any provision of the Act commits an offence. The penalty is a fine of up to N$20 000 or three times the value of the goods, whichever is the greater, and/or imprisonment and forfeiture of the goods.

Anti-Corruption law

Prevention of Corruption Ordinance (No 2 of 1928) as amended by the Prevention of Corruption Amendment Act (Act 21 of 1985)

This Ordinance was initially passed by the South West African Legislative Assembly in 1928. Section 2 of the amendment of 1985, which substituted the original, created three offences that were intended to supplement the common law crime of bribery by introducing bribery offences in respect of agents.

Firstly, it is an offence for any person who is an agent to accept a gift as an inducement or reward for corruptly doing or not doing any act in relation to his or her principal’s affairs or business or for showing or not showing favour to any person in connection with the principal’s affairs or business. Secondly, it is an offence for any person to give or agree to give or offer gifts to agents for the same purpose as above. Thirdly, it is an offence for any person to give to an agent or, in the case of an agent, knowingly to use with an intent to deceive a principal, any account, receipt or other document in which the principal has an interest, containing false information and which, to his of her knowledge, is intended to mislead the principal. The penalties in respect of all three situations are the same as those which may be imposed for the common law crime of bribery.

In a real sense, these were progressive provisions at the time, as they dealt with a grey area of criminal conduct that regularly occurs, by its very nature or form, on an organised basis. On the other hand, these provisions do not go far enough to deal with the numerous kinds of undesirable conduct associated with white-collar crime. For example:

The Ordinance does not address situations where agents by arrangement with sellers of goods or with persons hired to render services, secretly obtain gifts or advantage through the abuse of their position in carrying out the affairs or business of principals.



It does not deal with the converse situation of sellers of goods or persons rendering services who offer secret inducements whether in kind or cash to agents in matters affecting the affairs or business of their principals.



It does not address situations where an agent fails to disclose to his or her principal the full nature of a transaction carried out in connection with the business or affairs of a principal, with the intent either to deceive the principal or to obtain any gift or consideration for him or herself or another person.

In many instances of corruption, the passing of money, property, gifts or favours is rarely capable of actual proof. Thus, it is necessary to criminalise conduct where certain acts carried out with corrupt intent can be proven notwithstanding the fact that the actual receipt of a gift or consideration cannot be established. It is also important to penalise conduct which is akin to fraud, but where some but not all elements of the common law crime of fraud are present such as the third situation mentioned above.

Even as the statute stands, it does not make provision for the penalty to include the forfeiture of gifts or consideration involved, or to give summary judgement in favour of a principal for loss or damage suffered as a consequence of the acts of corrupt agents in their relations with customers or clients of the principal’s business. These measures would have a deterrent effect, as well as compensate principals for loss or damage.

It is submitted that the Ordinance needs further fine-tuning to incorporate the undesirable conduct of public officials. This refers to the abuse of power by doing anything which is contrary or inconsistent with the duty of such an official, or omitting to do anything which is a duty of a public official for the purpose of showing favour or disfavour to another person.

The Act should also address the question of the disclosure of receipts of gifts by public officials from persons whom they have either dealt with or are likely to have dealings with in the course of their normal duty as public officials. Failure to disclose should be made a criminal offence. Where disclosure is forthcoming, the modalities of handling the issue — whether the public official should be allowed to retain or surrender the gift — should be left in the discretion of heads of relevant ministries.

The Act should also cater for the examination of claims arising from general dishonesty or corruption by creating a mechanism temporarily to divest offenders or suspects in very serious cases of public interest of control over their financial affairs. This could occur through declarations as specified persons and appointing investigators with powers to question, compel the production of evidence, records and documents during such an investigation. Finally, a report should be produced aimed at recovering any loss or damage suffered by members of the public. This process would be akin to provisional liquidation procedures or judicial management and pre-empt or prevent the stripping or disposal of tainted assets.

An example of a fairly effective piece of anti-corruption legislation is the Prevention of Corruption Act (chapter 9:16) of Zimbabwe, which is recommended as a useful reference.

It is further recommended that Namibia should harmonise this legislation (indeed other legislation as well) with that of its fellow SADC countries to ensure uniformity of the measures to combat organised crime at local and interstate level.

It is noteworthy that the president of Namibia stated in a speech to parliament that a new anti-corruption bill will be tabled before parliament during 2001.

Public Service Act (Act 13 of 1995)

Among other matters, this Act also deals with acts of misconduct by public officials. An official is guilty of misconduct if he or she accepts or demands in respect of the performance of or the failure to perform his or her duties any commission, fee or reward, pecuniary or otherwise, to which he or she is not entitled by virtue of his or her office, or fails to report forthwith to the Permanent Secretary concerned the offer of any such a commission, fee or reward.

The matter is dealt with as an issue of misconduct rather than a criminal offence. In this respect, the provision is complementary to the provision of the Prevention of Corruption Ordinance. A public official is liable to a disciplinary penalty for misconduct, as well as a criminal charge if he or she acted corruptly.

Constitutional structures in Namibia

The Ombudsman

Article 91 of the Constitution outlines the functions of the Ombudsman:

"The functions of the Ombudsman are to be defined by an Act of Parliament and shall include the following:

the duty to investigate complaints concerning alleged or apparent instances of violations of fundamental rights and freedoms, abuse of power, unfair, harsh, insensitive or discourteous treatment of an inhabitant of Namibia by an official in the employ of any organ of Government (whether national or local), manifest injustice, or corruption or conduct by such official which would properly be regarded as unlawful, oppressive or unfair in a democratic society."

The Ombudsman is required in article 91(1)(e)(cc) to refer such a matter, where appropriate, to the Prosecutor-General.

In Article 91(1)(f), the Ombudsman is mandated:

"to investigate vigorously all instances of alleged or suspected corruption and the misappropriation of public monies by officials and to take appropriate steps, including reports to the Prosecutor-General and the Auditor-General."

Prosecutor-General

The Prosecutor-General is empowered in article 88 of the Constitution to prosecute in the name of the state in criminal proceedings in the High and Supreme Court. He or she is further empowered to perform all functions relating to the exercise of such powers, and to perform all such other functions as may be ascribed to him or her by any other law. It is implied in these provisions, including those dealing with the powers and functions of the Ombudsman, that both the Ombudsman and the Prosecutor-General have authority in respect of matters involving corruption.

A highly publicised case of alleged corruption involved the Minister of Fisheries in 1999. The minister is responsible for the allocation of fishing quotas. When he decided to get married and to have a public wedding, organisers of the event opened a bank account and approached various fishing companies for donations. The fishing companies donated generously, with the result that the minister hosted two wedding ceremonies, thereby achieving a feat without precedent in Namibia. In view of his official responsibilities, questions were raised whether there was any conflict of interest or corruption. The matter attracted such wide public interest and concern that the Ombudsman was called upon to investigate.

The minister denied any wrongdoing or knowledge of the actions of his fund raisers. Cabinet colleagues and the president himself publicly defended him. The Ombudsman’s report was never made public and the matter somehow died a natural death. Questions probably still linger in the minds of the public concerning the propriety of the conduct of not only the fund raisers, but also of the minister.

International legislative regimes

Independent Namibia has also acceded to and ratified several United Nations conventions and SADC protocols.

Protocols and conventions

Namibia signed the Agreement in respect of Cooperation and Mutual Assistance in the Field of Crime Combating on 1 October 1997. It ratified the agreement on 10 June 1998.

Namibia has also acceded to the United Nations (UN) Single Convention on Narcotic Drugs (1961) as amended, and the UN Convention on Psychotropic Substances (1971) on 1 July 1997.

Namibia signed the Protocol on Combating Illicit Drug Trafficking in the SADC Region (1996) on 24 August 1996 and ratified it on 10 March 1998.

However, Namibia has neither signed nor acceded to the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988). For Namibia and indeed all the SADC countries, the 1988 Convention is the single most comprehensive multilateral treaty or agreement that forms part of efforts to combat current forms of organised criminal activity.

It enjoins member states to accede as soon as possible to all three drug control-related UN conventions (article 3). It further requires member states to promulgate and adopt domestic legislation to give full effect to the provisions of the Protocol, such as laws:

to tackle drug-trafficking, money-laundering, the diversion of chemical precursors, conspiracy, incitement and instigation of drug abuse;



to provide maximum custodial sentencing to serve as a deterrent and facilitate rehabilitation;



to provide for proper accounting of the destruction of seized or confiscated drugs to prevent recycling;



to provide effective measures for dealing with the proceeds of illicit drug-trafficking including the tracing, freezing, seizure, confiscation and forfeiture of the proceeds, including instrumentalities (equipment);



to render mutual assistance in respect of illicit trafficking for investigations, confiscation, prosecutions and measures for the proportionate sharing among member states of forfeited assets;



to provide for laws to facilitate extradition between member states;



to provide for the prevention and detection of money-laundering from the proceeds of illicit drug-dealing;



to provide for controlled delivery; and



to provide for measures to curb corruption resulting from illicit drug-trafficking, including the establishment of independent anti-corruption agencies, administrative and regulatory mechanisms for the prevention of corruption and the abuse of power, the strengthening and harmonising of criminal laws and procedures to curb corruption, the adoption of procedures for the detection, investigation, prosecution and conviction of corrupt persons and accomplices as well as the protection of witnesses, freezing, forfeiture and confiscation of property and money acquired through corruption, rendering mutual legal assistance in investigations of corruption and resultant prosecutions, effective channels of communication for members of the public to report corruption, obligatory disclosure of assets and investments by persons under suspicion of corruption and their dependants or associates, and for improved banking and financial regulations and mechanisms to prevent capital flight and tax and customs duty evasion (article 8).

It is clear that the SADC protocol incorporates, by reference, the 1988 UN Convention with all its progressive provisions. To this end, it can be utilised by member states to combat illicit drug-trafficking, an area where organised criminal groups operate, as a basis for mutual assistance in the absence of reciprocal bilateral agreements, as it is a binding treaty between member states. This is an option not always understood and thus not always utilised.

The SADC protocol also stipulates that member states should harmonise their domestic legislation and applicable penalties among themselves to ensure uniformity and prevent a situation where one or more states become weak links in the chain, and potential points of exploitation by unscrupulous criminals.

This SADC protocol, however, is only concerned with issues relevant to illicit drug-trafficking. It does not address serious economic crime in general.

At the operational level, the Protocol enjoins member states to establish mechanisms for co-operation among law enforcement agencies, including effective and speedy channels for the communication of information. It also requires them to provide effective infrastructure, such as search and inspection facilities at customs ports and multidisciplinary drug units. States should formulate specialised training courses for drug enforcement units, and co-operate with international organisations such as Interpol, UNDCP, WCO and INCB (article 6). The Protocol also urges the adoption and implementation of effective demand reduction measures (article 7).

Among others, the following aspects of organised criminal enterprise are also not addressed:

the control of precursors and chemicals frequently used in the manufacture of narcotic drugs and psychotropic substances;

controlled delivery as a tool in the identification of offenders;

money-laundering;

mutual assistance in criminal matters;

extradition of offenders;

transfer of convicted offenders to serve prison terms in their home countries;

demand reduction;

corruption;

effective law enforcement;

electronic monitoring and surveillance, including wire-tapping; and

monitoring of bank accounts.

Abuse of Dependence-Producing Substances and Rehabilitation Centres Act (Act 41 of 1971)

Notwithstanding its obligations under the SADC Protocol, Namibia is still relying on the Abuse of Dependence-Producing Substances and Rehabilitation Centres Act (No 41 of 1971). The Act is outdated and does not accommodate current legal philosophy on the subject and the methods of effectively dealing with drug control, abuse and illicit trafficking which are enshrined in the 1988 UN Convention and the SADC Protocol.

This Act has been amended on several occasions since its promulgation, notably by the Abuse of Dependence-producing Substances and Rehabilitation Centres Amendment Act (No 80 of 1973), the Mental, Dental and Supplementary Health Service Professions Act (No 56 of 1974), the Abuse of Dependence-Producing Substances and Rehabilitation Centres Amendment Act (No 14 of 1977) and the Criminal Procedure Act (No 51 of 1977).

The Act prohibits dealing in or the use of dependence-producing drugs, imposing a duty on owners and operators of entertainment premises to report drug activities on their premises to the police. It also provides for the forfeiture of the property and money of persons convicted under the Act, the cancellation of entertainment licences, the creation of presumptions for evidentiary purposes where certain facts are proved, the removal from the jurisdiction of persons who are non-citizens deemed to be undesirable residents, and the detention of persons in possession of information relating to drug-dealing, but who are unwilling to co-operate with law enforcement officers. It also empowers the state to establish rehabilitation centres and hostels.

Severe penalties are stipulated by the Act. These include lengthy prison sentences and heavy fines. Further, courts may order the forfeiture of:

drugs and plants from which dependence-producing drugs can be manufactured;



any vehicle, vessel, aircraft, receptacle or thing which was used in the commission of the offence or for removing or conveying of drugs; and



immovable property which was used for the purpose of the commission of the offence, or the rights of the convicted person in the property, for example, owners or operators of entertainment premises such as night clubs, who allow the consumption of or dealing in drugs on their business premises, or persons who provide safe houses to drug dealers for the purpose of custody and illegal drug deals.

In the event of a second or subsequent conviction, the court can order the forfeiture of any money found in the possession of the convicted person or which is standing to his or her credit in a bank account or other savings account.

The forfeiture provisions are important as they are aimed at punishing the offender financially. The primary motivation for illicit drug-dealing is monetary profit. The imperative to address the issue of the proceeds of crime as a necessary ingredient of effective drug law enforcement appears to have been appreciated fairly early in the evolution of anti-drug legislation.

The Act also creates certain basic fact presumptions designed to ease prosecution by casting an evidentiary duty on the accused to show on a balance of probabilities the falsity of the inference suggested by the facts. Some of the presumptions are:

If an accused is found in possession of dagga exceeding 115 grams in mass or any dependence-producing drugs, it is presumed that the accused dealt in dagga or drugs unless the contrary is proven.



If it is proven that the accused was the owner or occupier or manager of property of cultivated land on which dagga plants were found, a presumption arises, unless the contrary is proven, that he or she was aware or could reasonably have known and by extension did know and thus dealt in dagga.



An owner or operator of entertainment premises is presumed to have been aware of violations of the Act if it is proven that some person, while on the premises, used, possessed or dealt in drugs unless the contrary is proven or it is found that reasonable precautions were taken to prevent this.

There are other presumptions which are not repeated here. As the Namibian Constitution has a justiciable Bill of Rights, it remains to be seen whether these presumptions can withstand constitutional challenges that they are in conflict with the presumption of innocence and the incidence of the onus of proof.8

In terms of section 11 of the Act, police officers have wide powers to carry out warrantless intrusions of places, vehicles, vessels, aircraft, and others, and of search and seizure and the interrogation of suspects upon a reasonable suspicion of the commission of a drug offence. Again, in the context of a constitutional human rights regime, it is possible that these provisions may be successfully challenged.

Similarly, a provision which empowers the relevant minister to expel non-citizens from the jurisdiction whether or not they are lawfully domiciled in the country, because the minister deems him or her to be an ‘undesirable inhabitant’, probably belongs to another historical era and would not be upheld by the courts.

Issues such as controlled delivery, the use of judicially sanctioned surveillance where wire-tapping is concerned, money-laundering, the confiscation of the proceeds of drug-related criminal activity or other tainted property and corruption offences related to drugs should be addressed in any new legislation.

The issue of organised crime as contemplated in the UN Convention Against Transnational Organised Crime should specifically be addressed.

Extradition Act (Act 11 of 1996)

The Act came into effect on 1 August 1996. It provides for the extradition of persons accused of crimes committed in certain other countries. These countries have either entered into an extradition agreement with Namibia in terms of the Act, or are countries which have been specified and to which the provisions of the Act apply. At the moment, specified countries are members of SADC and the Commonwealth. The Minister of Justice administers the Act and is the authority to which extradition requests should be directed.

Extradition is permissible only in respect of an ‘extraditable offence’, defined as an offence committed within the jurisdiction of a country which has an extradition treaty with Namibia or is a specified country. It constitutes an offence under the laws of the particular country punishable with imprisonment for a period of 12 months or more and which, had it occurred in Namibia, would have constituted an offence under Namibian law punishable by the imposition of imprisonment of 12 months or more. Thus, the principle of dual criminality is recognised.

In determining whether any conduct constitutes an extraditable offence, all the surrounding circumstances should be considered. Differences in terminology and description, categorisation, or the constituent elements of the offence, between Namibia and the requesting country are immaterial. Also immaterial is whether the offence for which extradition is sought pertains to taxation, customs duty, exchange control or any other form of fiscal regulation not enforced in Namibia.

The Namibian position is commendable, especially in view of the fact that, in the realm of organised criminal activity, the motivation is usually the acquisition of monetary gain. In cases of transnational organised crime involving the laundering of money, and in some cases of violations of exchange controls, the request for extradition may indeed be related to a contravention of exchange control statutes. In cases of the transnational shipment of goods, the relevant customs duties may have been evaded and the offender may be required by the requesting country for trial under the relevant customs legislation. In cases where the predicate crime cannot be proven, recourse to sanctions under tax laws may still ensure that the offender does not benefit from the crime.

Liability to extradition is limited, however, to persons found in Namibia who are not Namibian citizens and who are either accused of committing extraditable offences or are fugitives from justice on account of convictions of extraditable offences in the requesting countries.

Extradition is permissible for offences committed prior to the coming into effect of the Act or an applicable extradition agreement, but it is not permitted where the person was convicted in absentia. Accomplices and accessories are also liable for extradition.

Other restrictions to extradition are:

where the person is liable to be sentenced to the death penalty, unless guarantees are provided by the requesting country that such penalty will either not be imposed or, if imposed, will not be carried out (the Namibian Constitution does not provide for capital punishment);



where the offence has become prescribed;



where the offence is regarded under Namibian law as having been committed in Namibia and proceedings are pending in Namibia, a final judgement has been passed, or the Prosecutor-General has decided not to prosecute or has terminated proceedings against such person; and



where the principle of autrefois convict or acquit would be applicable.

As stated earlier, extradition is specifically prohibited where the conviction was obtained in absentia. It is not in the interests of justice to return such a person on the ground of such a conviction, or if a period of less than six months of the sentence remains to be served. Extradition will not be permitted if the requesting country does not provide in its laws for the prohibition of secondary extradition to a third state. Finally, unless the requesting country provides in its laws or makes prior arrangements for the prosecution for an offence or offences other than the one for which extradition was sought or any lesser offence or an offence committed after extradition, such an extradition request would not be granted.

The Act provides for the prosecution and punishment in Namibia in accordance with the laws of Namibia for any extraditable offence committed or allegedly committed in the requesting country. However, prosecution is only permitted where a formal request for extradition has been requested and the Prosecutor-General has authorised such a prosecution in writing. This provision necessarily implies that the requesting country would have to submit the results of any investigation and all the available evidence, applicable statutes, and other relevant material to the Prosecutor-General through the minister in order for a prosecutorial decision to be made. In terms of the Act, in such a case and for purposes of local jurisdiction, the conduct constituting the offence is deemed to have been committed in the magisterial district of Windhoek for the purpose of trial.

Although these provisions demonstrate an intention to deal with Namibian external offenders under Namibian law, the minister has the power to authorise, in writing, a magistrate to endorse a warrant received from the requesting state for the arrest and detention of such a person pending an extradition hearing. The minister is empowered to do this only if he or she is satisfied that extradition is warranted due to the seriousness of the extraditable offence, the cost involved in bringing the necessary witnesses and other evidence to Namibia or any other circumstances justifying extradition. This flexibility allows the minister a wide discretion to determine when it may be justified to institute and ultimately extradite a Namibian.

The minister’s opinion in the matter is not conclusive as a hearing is still required before a magistrate who, based on the evidence tendered, will have to be satisfied that the offence is an extraditable one; the requesting country is competent to make the request; the identity of the accused is established; the evidence adduced would be sufficient to warrant committal if the crime had been committed in Namibia; and the provisions of the Act have been complied with. Only then will the person be committed to prison pending the issue of an order for removal to the requesting state.

The general procedure to be followed in the case of requests, as well as the documentation and the facts or evidence required are stipulated and are the same in respect of Namibian and foreign citizens. The Act does not state what standard of proof is required in an extradition enquiry. A recent judgement suggests that bald allegations without more evidence will not suffice. The required standard of proof appears to be that of a prima facie case.9

The Prosecutor-General or any person thus delegated may appear at any enquiry or proceedings in the High Court (including appeals) under the Act. In practice, the state is represented by a prosecutor or prosecuting counsel at such proceedings who adduces the relevant evidence and argues the case for extradition.

The presiding magistrate has the power to discharge a person from prison if he or she is not satisfied with one or other of the issues stated in the Act, and to make his or her recommendations to the minister accordingly.

Provision is made for appeals to the High Court by any person who was subject to extradition, or by the government of the requesting country. The High Court has the power to make any order which, in its opinion, the magistrate should have made. It may also order discharge from prison on specified grounds.

A person who is liable to extradition can waive his or her right to an enquiry to facilitate his or her expeditious extradition.

Concerning extradition to Namibia, the Act is sparse on detail. It does not spell out the circumstances in which extradition will be sought, the types of crimes, the procedures, the amount of evidence required before a request is made, who initiates such requests and other pertinent matters. It seems that this is left to the discretion of the Prosecutor-General in the exercise of his or her constitutional powers. It is also assumed that any request would need to be made on the basis of the requirements of the legal statutes of the requested state or, in the event that an extradition agreement exists, in terms of such an agreement.

In practice, such requests are processed through the minister. Extradition requests have been made only to South Africa since independence. Of these, only a handful has been successful. The primary reasons for this include a lack of understanding on the part of the officials in the local minister’s office of South African expectations, the need to authenticate documents and the fact that the Prosecutor-General, in spite of the fact that he or she is the person responsible for prosecutions, has a limited role in the process. A lack of training and experience in this area generally affects the outcome of extradition requests.

One of the most important provisions in the Act pertains to the issue of provisional warrants of arrest on grounds of urgency. This facilitates the enforcement of, for example, red letter notices issued by the International Police Commission (Interpol).

Other notable provisions relate to the authentication of foreign documents for use in evidence, the treatment of concurrent requests for extradition, legal representation and bail.

With regard to evidence specifically, no documents are admissible unless they are authenticated and are either original or certified copies. If these requirements are met, the documents are prima facie proof upon production of the facts stated in them in any enquiry or appeal. Bail is specifically prohibited in extradition matters.10

Finally, subject to the rights of third parties, property found in Namibia which is proven to have been acquired as a result of the offence for which extradition has been granted, or which may be required as evidence, at the indication and expense of the requesting country, may be transferred under a magisterial order.

International Co-operation in Criminal Matters Act (Act 9 of 2000)

The object of the Act is to facilitate the provision of evidence, and the execution of sentences in criminal matters. It also deals with the confiscation and transfer of the proceeds of crime between Namibia and foreign states. A foreign state is defined as a state which is specified in the schedule to the Act, or which is a party to an agreement. At present, the only states mentioned in the schedule are SADC states. In terms of section 27, the Minister of Justice has the power to enter into bilateral and multilateral agreements with other states. Namibia has not yet entered into any agreement with any other state.

Broadly speaking, the Act deals with three main issues: mutual provision of evidence; mutual execution of sentences and compensatory orders; and confiscation and transfer of the proceeds of crime. All requests by Namibia in connection with any of these matters are initiated through the issue of letters of request.

Letters of request for the provision of evidence

Two situations are envisaged in this respect:

During proceedings in court, it appears to the court that the examination at such proceedings of a person who is in a foreign state is necessary ‘in the interests of justice’, or the attendance of the witness concerned cannot be obtained without undue delay, expense or inconvenience.



The Court has a discretion when an application is made to issue a letter of request seeking the assistance of a foreign state in obtaining evidence for use at the proceedings.

An application is made to a judge or magistrate in chambers for a letter of request to be issued for the purpose of a criminal investigation. In this case, the judge or magistrate has to be satisfied that:

There are reasonable grounds for believing that an offence has been committed in Namibia or that it is necessary for the purpose of determining whether an offence has been committed.



A criminal investigation is in progress in Namibia.



For the purpose of the investigation, it is necessary and in the interests of justice that information must be obtained from a person or authority in a foreign state.

It is not stated in the Act whether such an application can be made ex parte or on notice of motion, and whether any affidavits have to be filed and who deposes to such affidavits. Presumably, affidavits would be required of police officers or investigating officers and prosecutors. It also appears that there is no prohibition for making these applications through the chamber book or by formal appearance in chambers.

Hence, it is logical to assume that these applications can be made ex parte as notice would have detrimental consequences in many instances for the outcome of the investigations. Again, it would seem to be proper for such applications to be filed by police officers, the prosecutor or the Prosecutor-General on behalf of the police, subject to the filing of founding and supporting affidavits of police officers or any relevant persons. It is submitted that regulations for the proper administration of the Act in these respects are perhaps required.

The parties to the criminal proceedings in court have a right to submit interrogatories to the court to be incorporated in the letter of request and to appear at the examination in person or through counsel, to examine and to cross-examine witnesses in the foreign state, provided this is permitted by the laws of the foreign state. Similarly, where a letter is issued pursuant to a chamber application, the investigating officer may submit interrogatories to accompany the letter, appear at an examination in the foreign state and question witnesses if the law of the foreign state permits it. Letters are transmitted to the competent authorities in the foreign state through the Permanent Secretary for Justice.

Evidence obtained by way of a letter of request is deemed to be evidence under oath if it appears that the witness was warned to tell the truth, in accordance with the laws of the foreign state. Such evidence is admissible if:

the parties agree that it may be admitted; and



the Court, having regard for the nature of the proceedings, the nature of the evidence, the purpose for which the evidence is tendered, the likelihood of prejudice, or any other factor which the court thinks should be considered, is of the opinion that it is in the interests of justice to admit the evidence.

If the ‘interests of justice’ concept is considered as not only influenced by considerations of fairness to the accused but also to the state, then it seems more probable that the courts will lean more in favour of admissibility than exclusion.

Provision is made for the handling of foreign requests in respect of evidence. They must be received through the Permanent Secretary for Justice or in the case of urgent requests, may be forwarded to the magistrate’s court within whose area of jurisdiction the witness is or resides. A request received through the Permanent Secretary must still be referred to a magistrate. The witness will then be subpoenaed to testify or produce any required record or exhibit and to be examined under oath or otherwise. The record of evidence will later be submitted to the foreign state through the Permanent Secretary.

The rights and privileges of witnesses include the right to object on the basis that, under the laws of the foreign state, they would not be compellable, an issue which the magistrate would be required to investigate.

Provision is also made for the receipt of foreign subpoenas by magistrates in Namibia who would endorse such subpoenas for execution as if issued by them. The Act enables persons in Namibia, including residents and citizens to travel to foreign states to testify if their travelling and subsistence expenses are secured in advance.

Mutual execution of sentences and compensatory orders

A court which has sentenced a person to pay a fine, or which has ordered a person to pay compensation for damages to another person (victim of crime), for example, in a case of fraud or motor vehicle theft, may issue a letter of request seeking the assistance of a foreign state to recover the required amount or enforce its order where the person has insufficient assets or money in Namibia, but holds property in the foreign state.

Foreign sentences and compensatory orders can also be enforced in Namibia, but they have to be registered with the clerk of court, which has the effect of making them civil judgements of the local court, and thus executable in the normal way.

Confiscation and transfer of the proceeds of crime

The Act provides that, where a court makes a confiscation order, it has discretion upon an application made to it, to issue a letter of request seeking the assistance of a foreign state to enforce the order if insufficient money is available in Namibia to satisfy the order and the person against whom the order is made holds property in a foreign state.

There is no requirement for a criminal conviction before the provisions of this particular Act can be invoked.

It is apparent from this provision, as well as similar provisions mentioned earlier with regard to the enforcement of fines and compensatory orders, that the state must not only investigate and obtain sufficient evidence to prove the crime charged, but must also trace assets and proceeds of criminal activity in Namibia and abroad.

These provisions are particularly useful when dealing with economic crimes such as money-laundering, fraud and its kindred offences, and corruption, which are of an organised nature and frequently transcend territorial borders.

An important feature of these provisions is that there is no requirement for proof of a direct link between the crime and the money or property before the order becomes enforceable. This is important in many instances because the laundering of money may have been so perfected that such a nexus is difficult to establish.

As Namibia has not yet criminalised money-laundering, it is submitted that, if such legislation should be promulgated, these provisions would be useful in confiscating the proceeds of crime such as drug-trafficking offences or motor vehicle theft.

Provision is also made for the receipt, processing and registration of foreign confiscation orders with the clerk of the court. Registration has the effect of making the foreign order a civil judgement of a local court, executable in the usual way. Conviction for a criminal offence is not a necessary precondition.

The High Court of Namibia is empowered to issue restraining orders. The High Court can also issue letters of request to foreign states seeking assistance in the enforcement of such orders in respect of property held in a foreign state. It seems that the property does not have to be linked to a crime. Hence, such a restraint may have the beneficial effect of freezing assets and thus help to prevent their disposal. This may be done with a view to attach or confiscate these assets at a later stage. Conviction for a criminal offence is not a necessary precondition.

This provision contemplates that the requested state would have the legal mechanism to enforce the order or a bilateral agreement with Namibia, as Namibia would not be in a position to control the process in a foreign state. Foreign restraint orders can also be accepted in Namibia, provided the Permanent Secretary is satisfied that they are final orders not subject to review or appeal. They are forwarded to the Registrar of the High Court where they are registered. The effect is that these are made orders of the High Court of Namibia enforceable in the usual way.

Foreign depositions, affidavits, certificates, records of conviction, orders of court, copies and sworn translations are admissible in criminal proceedings if they are properly authenticated in the foreign state in the manner in which foreign documents are authenticated for the purpose of production in a Namibian court or in a manner provided for in an agreement entered into with the foreign state. For the purposes of this Act, the specified countries to which the provisions of the Act apply are listed in schedule 1 to the Act. At the moment, these are all members of SADC.

It seems clear that, for the Act to be effective, as with other laws concerned with combating transnational organised crime, complementary reciprocal legislation is required in these countries or any other state which enters into an agreement with Namibia.

Finally, although the Act empowers the minister to make regulations for the proper administration of the Act, none have so far been made. The Act has not yet come into force and it is hoped that, at least in the short term, regulations of general application will be forthcoming. In the longer term, the minister may have to make regulations specific to different states as the provision exists that enables him to do so.

Motor Vehicle Theft Act (Act 12 of 1999)

Motor vehicle theft has undoubtedly become one of the most serious crimes in the region. It takes many different forms, ranging from the clandestine to its more bizarre form where people are accosted at gunpoint and forced to relinquish their vehicles or are killed in the process. The latter situations have come to be known as ‘car-hijacking’.

A significant number of stolen motor vehicles are smuggled across borders, others are dismantled for spare parts, while others are simply altered to give them a different appearance or identity.

In this context, the Namibian legislature enacted the Act to combat this specific type of theft by creating statutory crimes that complement the common law crimes of theft and receiving stolen property.

Broadly speaking, the Act provides mechanisms for the control of activities in the motor industry or sector. It does so, not by redefining the common law crime of theft, but by creating additional statutory offences and regulatory controls in respect of the operations of motor dealers. It seeks to supplement and not to replace the common law of theft and receiving stolen property known to be stolen. These crimes are not re-enacted as statutory offences.

A motor dealer is defined as:

"any person who is engaged in the business of dealing in motor vehicles or motor vehicle parts, or both, and includes-

a manufacturer;

a builder;

an importer;

a repairer of motor vehicles;

a panel-beater of motor vehicles; and

in relation to a scrap-yard for motor vehicles or motor vehicle parts, or both, the owner of such scrap-yard."

Other issues of relevance are the following:

Legislation promulgated to address an area of public concern or interest may and does incidentally contain provisions which can be utilised to combat organised crime.



Existing legislation does not import new and current philosophies in the detection, investigation, interdiction, prevention and prosecution of crime generally and organised crime, in particular.



Legislation, which deals with aspects of organised criminal activity contemplated by the UN Convention Against Transnational Organised Crime, inadequately addresses issues of public concern and requires amendment or overhaul to comply with the provisions of the Convention.



Legislation to provide victims’ rights and witness protection generally simply does not exist.



The pace of legislative reform is slow and has to be accelerated to be able to address the methods used by organised criminal groups, which are always being perfected to counter law enforcement initiatives.



Organised criminal activity is thus not specifically targeted in any existing legislation, but is combated as part of general law enforcement.



Existing laws may not be in harmony with one another and with the laws of states contiguous to Namibia, or with which Namibia shares a common interest and vision in the fight against crime.

What are the options?

Firstly, existing legislation could be amended to incorporate aspects of the Convention to the extent that they are relevant matters in the specific area.

The problem with this approach is that the end-result could be various provisions scattered in different pieces of legislation with the obvious result of making their effective application or enforcement difficult.

Secondly, a single piece of consolidated legislation could be passed encompassing the whole breadth of matters related to organised crime.

Finally, existing legislation could be appropriately modernised, while at the same time, new legislation is promulgated to address matters not dealt with under existing legislation such as the transfer of offenders, witness protection, and others. The new law would embrace serious crimes and money-laundering and the techniques to combat them, such as controlled delivery, electronic monitoring and surveillance, and freezing and confiscation of assets.

Recommendations

In the circumstances prevailing in Namibia, it is recommended that a comprehensive serious crimes statute should be enacted which:

defines organised crime, as well as organised criminal and structured groups as envisaged by the Convention;



incorporates current thinking on the various forms of organised crime;



targets the methods used by organised criminal groups in committing economic crime;



within the parameters of its Constitution, gives legal blessing to modern investigation techniques and the admissibility of evidence thus obtained in court, including controlled delivery, judicially supervised wire-taps, entrapment, monitoring and surveillance, the use of lie detectors, and others;



gives law enforcement officials greater and more effective powers in the interrogation of suspects and the compulsion of the production of evidentiary material or information;



addresses problems associated with the admissibility of documents;



addresses problems associated with the proof of facts within the peculiar knowledge of the accused;



creates the offence of money-laundering, and addresses the issue from the perspective of the entire financial sector and cash transactions;



seeks to attack the motivation for engaging in criminal activity by targeting the proceeds of crime and confiscating them;



facilitates applications by investigating officers for search warrants for documents and the disclosure of banking information relating to persons under investigation for serious crime and for judicial monitoring orders concerning these accounts; and



facilitates the issue of freezing orders of sufficient duration to ensure effectiveness, and the use of interlocutory interdicts such as Mareva injunctions, which makes it possible to use civil and criminal remedies in combination.

A new anti-corruption statute should also be enacted which incorporates the issues discussed earlier in this chapter and makes provision for the establishment of an independent anti-corruption agency.

Notable government efforts have been made to accelerate reform in the sphere of corruption. One of the important decisions was the establishment of an anti-corruption agency within the Office of the Prosecutor-General. Media reports indicate that the decision may have been rescinded. It is unclear what has happened since, but it is anticipated that the proposed anti-corruption bill will address this issue.

The dependence-producing drug legislation is now outdated. It should be rewritten to comply with the 1988 Convention and the SADC Protocol on Illicit Drug Trafficking. The current draft bill is completely unsatisfactory and it is hoped that it is not enacted in its present form.

A new statute to facilitate the transfer of convicted offenders from Namibia to serve prison terms in other countries is required. With regard to extradition and the implementation of the provisions of the International Cooperation in Criminal Matters Act, a single ‘competent authority’ should be established as a focal co-ordination point for implementation. This could be set up in the Attorney-General’s Office and could be staffed by a small team of legally qualified personnel with specialised training to deal with what is sometimes a complex field of international law enforcement.

At the operational level, it is recommended that a specialised investigation unit should be established in the police force. Its members should not be susceptible to the routine transfer practices endemic in the force, to ensure a build-up of a professional élite team of investigators, continuity and experience. This recommendation stems from the perception that the present Commercial Crime Unit is understaffed and overworked.

In fact, all units dedicated to organised crime in the public and private sphere, the Namibian Police, including the Commercial Crime Unit, the Syndicated Crime Unit, the Protected Resources Unit and the Drug Enforcement Unit require greater and more effective evidence-gathering powers.

To prevent costly investigative mistakes in serious investigations, these units should work in close liaison with the Prosecutor-General’s office from the inception of investigations until the conclusion of a case.

It is also recommended that bail provisions have to be reviewed to make it difficult for persons accused of participation in organised criminal enterprises to be released on bail. Invariably, witnesses tend to feel unprotected and are therefore reluctant to come forward if such persons are routinely granted bail.

It is further submitted that Namibian legislation should be harmonised with that of its immediate neighbours within SADC. This is important not only with respect to the offences created, but also with regard to prescribed sentences. For example, disparities in prescribed sentences for similar crimes exist between Namibian legislation and that of its neighbours, and criminals may find it less risky to engage in criminal activity in Namibia or against Namibian interests. In the case of drug-trafficking, Namibia could well become the weak link in the chain and could be used as a conduit for drugs destined for other countries.

Conclusion

While Namibia has made remarkable progress in passing legislation in specific areas of public interest. Where it exists, it is inadequate to deal with certain aspects of organised criminal activity because it was never promulgated with the specific aim and object of addressing the problem of organised crime.

The situation could be resolved by making appropriate amendments to existing legislation where possible. In other situations where legislation simply does not exist, new and progressive legislation is necessary.

It is also necessary to enact a comprehensive serious crimes statute in which relevant aspects and measures to combat organised criminal activity not specifically dealt with in other statutes will be incorporated.

It is wiser to anticipate future problems in dealing with organised crime than to wait until the problem has proliferated out of control.

As Detective Chief Inspector Hill wrote:

"Whatever the future holds for money laundering practices, reality is that ways in which money from crime is laundered will be limited only by the imaginations, abilities and networks of launderers themselves. This is true for both the profits of crime, particularly drug trafficking and complicated major frauds. Laundering requires a washing mechanism as well as a recycling process. Banks have primarily provided the mechanisms and processes during the past ten years, but banking and non-bank financial institutions in ever-changing combinations are likely to provide both in the next decade."11

The same sentiments are true of organised criminal activity generally, which makes the problem one of grave public concern, requiring specific, adequate and effective measures at the legislative and operational level, in order to control its further development.

Notes