Chapter 4

DEFINING ORGANISED CRIME

The term ‘organised crime’ has been loosely and generically used internationally to describe the criminal activities of organised criminal groups consisting of three or more persons who commit serious crimes over a period of time for profit. In most countries, the police and lawyers have struggled to develop a satisfactory definition for organised crime, mainly because the nature of organised crime tends to differ from country to country. The fact that the well-known Mafia groups in the United States have clear hierarchical structures, has led to some American definitions emphasising ‘structure’ when elucidating the concept of organised crime. In Southern Africa, however, indications are that organised criminal groups are not as structured as the Mafia. They tend to function in loose and shifting associations and alliances with others, or in networks without clear hierarchical structures. As a result, different definitions have been used by police agencies in different parts of the world.

At the many meetings of the UN Ad Hoc Committee, held during 1999 and 2000 in Vienna to negotiate the Convention against Transnational Organised Crime, an internationally agreed definition for organised crime proved to be one of the most difficult aspects on which to reach consensus. The compromise that was eventually agreed upon did not actually define organised crime. Instead, it provided a definition of an ‘organised criminal group’ and then proceeded to criminalise participation in such an organised criminal group.17 Articles 2 and 5 of the Convention provide the following:

"Article 2: Use of terms

For the purpose of this Convention:

"Organized criminal group" shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit;



"Serious crime" shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty;



"Structured group" shall mean a group that is not randomly formed for the immediate commission of an offence and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure …

Article 5: Criminalization of participation in an organized criminal group

Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences, when committed intentionally:



Either or both of the following as criminal offences distinct from those involving the attempt or completion of the criminal activity:



Agreeing with one or more other persons to commit a serious crime for a purpose relating directly or indirectly to the obtaining of a financial or other material benefit and, where required by domestic law, involving an act undertaken by one of the participants in furtherance of the agreement or involving an organized criminal group;



Conduct by a person who, with knowledge of either the aim and general criminal activity of an organized criminal group or its intention to commit the crimes in question, takes an active part in:



Criminal activities of the organized criminal group;



Other activities of the organized criminal group in the knowledge that his or her participation will contribute to the achievement of the above-described criminal aim;

Organizing, directing, aiding, abetting, facilitating or counselling the commission of serious crime involving an organized criminal group.



The knowledge, intent, aim, purpose or agreement referred to in paragraph 1 of this article may be inferred from objective factual circumstances."

Since December 2000, 124 states have signed the Palermo Convention. This means that, for the first time, a common international approach to the definition of organised crime exists. The countries which have signed the Palermo Convention include all SADC member countries except Botswana and Zambia. These two countries have indicated that they are committed to the convention and will sign it in due course.

The signing of the Palermo Convention by numerous UN member states does not mean that the array of existing domestic definitions is likely to be discarded immediately. It will take a number of years before the Palermo Convention is ratified and it is likely that states will continue to rely on their existing domestic definitions for many years to come. Some might do so in order to capture the peculiar nature of organised crime in their country or because they prefer a simpler definition.

Definition of organised crime in the SADC region

The relatively recent identification of organised crime in the SADC region as a national and regional threat has meant that a number of police agencies in the region have not yet developed their own definitions of organised crime. Respondents were asked whether they had adopted a definition and, if so, what this definition was (question 4 and 5).

Respondents were asked to supply such a definition if their answer to the previous question was in the affirmative. Responses from the different police agencies are provided verbatim below, with the exception of Zimbabwe did not supply particulars.

Botswana

"We go along with the definition contained in the draft Convention on Transnational Organised Crime."

Lesotho

"There is no special law which defines Organised Crime as Organised Crime but there are a number of such cases that are being investigated."

Namibia

"Namibia does have specialised units to fight the organised crime syndicates, however tried investigation methods are often inadequate to combat these crimes committed by syndicates. The current Common Law and Statutory Law has failed to effectively deal with organised crime and therefore Namibian is currently busy looking in to a legislation to counter the organised crime and criminal gangs."

South Africa

"Organised crime is the systematic commissioning of crimes motivated by a craving for profit and/or power.

Within the parameters of this definition, a criminal group involved in organised crime needs to meet the following criteria:

The criminal group has to involve the collaboration of more than two (2) people,



It has to be suspected of involvement in serious criminal offences,



It has to have been involved in such serious criminal activity for a prolonged or indefinite period,



It has to be motivated by the pursuit of profit and/or power,



It should stimulate and/or employ commercial or businesslike structures,



By way of division of labour, group members should have their own appointed tasks,



It shall employ some form of discipline and control (disciplinary sanctions)



It should be engaged in money laundering,



It should use violence or other means for the purpose of intimidation,



It should attempt to exert influence on politics, media, public administration, judicial authorities or the economy (corruption),



Abuse of state, provincial and international borders.

(* Before a criminal group can be identified as an organised criminal organisation, at least six (6) of the criteria need to be fulfilled, including the first four. This definition caters for both criminal groups with exclusive identities and loosely-knit criminal coalitions.)"

Swaziland

"Any group of individuals whose primary activity involves violation of criminal laws to seek illegal profits and power, by engaging in racketeering activities, and when appropriate, engaging in intricate financial manipulations. The term "organised crime" consists of the following:

A group of people (criminals), more than one

Participating in unlawful activities

Seeking money and power

Forms a syndicate, group, cartel, racket, mafia etc

Money laundering

Organised crime has taken the following characteristics:

Structure

Limited number of membership

Cell forming and secrecy

The use of violence an intimidation

Access to corrupt police officials

Money laundering

The main activities of these syndicates comprise of the following:

Theft of motor vehicles

Armed robberies

Drug trafficking

Smuggling firearms

Counterfeiting

Money Laundering

Bribery

Extortion."

Tanzania

"Any offence or non-criminal culpable conduct which is committed in combination or from whose nature a presumption may be raised that its commission is evidence of existence of a criminal racket in respect of acts connected with, related to, or capable of producing the offence in question."

Zambia

"A structured group of three or more persons existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with the convention in order to obtain directly or indirectly a financial or any material benefit."

Lack of a uniform definition of organised crime in SADC

The survey therefore shows that, in 2000, five of the SADC countries which participated in the survey had not adopted a definition of organised crime, while the remaining four used definitions that differed from one another. The lack of clarity within the region about what the different police agencies mean by the term ‘organised crime’ is likely to hamper police investigations at national level, as well as police co-operation on regional level. It also makes it very difficult, if not impossible, to compile reliable regional assessments of organised crime. The detective who is not equipped with a clear understanding of what organised crime is, is likely to adopt the conventional method of investigating a particular suspect in cases where the investigation should have been much broader and aimed at the criminal group and its underlying conspiracy.

Joint operations by police agencies against organised criminal groups in SADC countries face considerable obstacles if different or no definitions of organised crime exist in these countries. It would therefore contribute towards the effective combating of organised crime regionally if members of SARPCCO were to make a concerted effort to develop a definition that applies regionally or if they were to harmonise existing and future definitions that are developed. The approach towards defining organised crime in the Palermo Convention could clearly serve as a valuable guideline, but local and regional circumstances have to be taken into account.