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Namibia: High Court Declares Anti-Corruption Act Provision Unconstitutional

(Feb. 23, 2012) On February 20, 2012, the High Court in Windhoek, Namibia found part of a provision in Namibia's Anti-Corruption Act (No. 8 of 2003, GOVERNMENT GAZETTE OF THE REPUBLIC OF NAMIBIA (Aug. 4, 2003), Anti-Corruption Commission of Namibia website) to be unconstitutional. The provision in question defines the term “corruptly.” (Werner Menges, Namibia: Ruling Delivers Blow to Corruption Act, NAMIBIAN (Feb. 21, 2011).)

The decision comes in response to a March 2011 petition by two individuals, Teckla Lameck and Jerobeam Mikaxwa [the latter is also referred to as Kong Mokaxwa], who, along with a Chinese national, Yang Fan, are facing various criminal charges, including fraud and money laundering, arising from a 2008 deal to buy Chinese-made security scanning equipment for the Namibian Ministry of Finance; the government alleges that the deal was corrupt. (Id.; Fred Goeieman, Teko Duo in Partial Judicial Victory, NAMIBIAN SUN (Feb. 21, 2012).)

Counsel for Lameck and Mikaxwa challenged the constitutionality of the definitions given to two terms in the Anti-Corruption Act, “corruptly” and “gratification.” He argued that the definition of the term “corruptly” was “unreasonable, vague and too wide.” (Menges, supra.) The Anti-Corruption Act defines the term to include acts

in contravention of or against the spirit of any law, provision, rule, procedure, process, system, policy, practice, directive, order or any other term or condition pertaining to –

(a) any employment relationship;

(b) any agreement; or

(c) the performance of any function in whatever capacity. (Anti-Corruption Act, § 32.)

Counsel for the defendants argued that “policies” are not binding, it is not possible to ascertain what amounts to “practice,” and the phrase “against the spirit of” adds to the vagueness of the definition. (Menges, supra). Counsel further argued that by making violations of “procedure, process, system, policy or practice” illegal, the Anti-Corruption Act makes “unlegislated norms binding.” (Goeieman, supra).

The Court sided with the defendants and declared the Act's definition of “corruptly” unconstitutional. Judge Dave Smuts, who delivered the Court's opinion, wrote that “the definition of 'corruptly' would seem to me to be unduly vague and (does) not meet the test indicating with reasonable certainty what is hit [sic] by it to those who are bound by it.” (Menges, supra.)

The defendants also sought to have the definition of the term “gratification” in the Anti-Corruption Act declared unconstitutional. Their counsel argued that the definition for this term was “limitless and was unreasonably and impermissibly wide.” (Id.) The provision defines “gratification” in detail to include:

(a) money or any gift, loan, fee, reward, commission, valuable security or property or interest in property of any description, whether movable or immovable;

(b) any office, dignity, employment, contract of employment or services and any agreement to give employment or render services in any capacity;

(c) any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;

(d) any valuable consideration or benefit of any kind, any discount, commission, rebate, bonus, deduction or percentage;

(e) any forbearance to demand any money or money's worth or valuable thing;

(f) any service or favour, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, wether [sic] or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty;

(g) any right or privilege;

(h) any aid, vote, consent or influence, or any pretended aid, vote, consent or influence;

(i) any offer, undertaking or promise, whether conditional or unconditional, of any gratification within the meaning of any of the preceding paragraphs. (Anti-Corruption Act, § 32.)

In rejecting this argument Judge Smuts stated that “[a]lthough wide, it is not in my view unduly vague.” (Menges, supra.)

An attempt to challenge another law, from which additional charges pending against the defendants emanate, failed. Counsel for the defendants sought to have the Prevention of Organized Crime Act (POCA) (No. 29 of 2004, GOVERNMENT GAZETTE OF THE REPUBLIC OF NAMIBIA (Dec. 31, 2004), Namibia Parliament website) set aside, arguing that the 2005 appointment of Livula-Lithana, who decreed POCA to be in operation in May 2009, as both Attorney General and Minister of Justice was unconstitutional and that this fact makes charges based on this law baseless, as in theory it has yet to enter into operation. The Court, however, rejected this claim. (Menges, supra.)