GOVERNMENT and the Attorney General conceded in the High Court in Windhoek yesterday that the severe sentences prescribed by the Stock Theft Act are unconstitutional.
Four years and seven months after the Stock Theft Amendment Act of 2004, which dramatically increased mandatory minimum sentences for people found guilty of stealing livestock, became law in Namibia, Government and the Attorney General have now formally agreed that the law violates the Constitution.
The Prosecutor General does not agree, though. She yesterday dug in her heels, defending the constitutionality of the Stock Theft Act, in a case in which two convicted livestock thieves are challenging the Act by asking the High Court to declare its sentencing provisions as unconstitutional.
The Act is being challenged by two men who were sentenced to long prison terms after each had been convicted on a charge of stock theft.
For stealing nine goats, valued at N$4 450, first-time offender Protasius Daniel was sentenced to 20 years' imprisonment in November 2007. A 30-year jail term was the sentence meted out to Willem Peter in December last year. Peter had been convicted of stealing a single cow, valued at about N$3 200.
Peter also had a previous conviction for stock theft on his criminal record.
After being changed in 2004, the Stock Theft Act prescribes a prison term of not less than two years without the option of a fine for any first-time offender convicted of stealing livestock - not including poultry - valued at less than N$500.
If the livestock was valued at more than N$500, a first-time offender has to be sentenced to no less than 20 years in prison, again without the option of a fine.
Any repeat offender convicted of stock theft has to be sentenced to at least 30 years' imprisonment, still without the option of a fine, the Act further states.
Only when a court is satisfied that "substantial and compelling circumstances" which justify a lesser sentence than those prescribed exist in a particular case, can a court impose shorter prison terms than those prescribed by the Act, the law states.
The Prosecutor General's counsel in the constitutional challenge, George Coleman, emphasised that escape clause in the Act when he argued the matter before Judge Kato van Niekerk and Acting Judge Harald Geier yesterday.
What the minimum sentences set in the Act convey to a court is that Parliament sees stock theft as a particularly serious offence, and it wants the courts to keep that in mind when they sentence people convicted of that crime, Coleman said.
The reasons why Parliament decided to create these minimum sentences should be respected and there should be deference towards Parliament over this decision that it took, Coleman argued. He added that the Act's provision on "substantial and compelling circumstances" that would allow courts to impose lighter sentences than those being prescribed by the Act saves the law from being unconstitutional.
Wim Trengove, SC, representing Daniel and Peter, told the court it is striking that the Act jumps from a lowest prescribed minimum jail term of two years for a first offender to a much higher sentence of 20 years, also for a first offender, and then to a minimum sentence of 30 years for a repeat offender. This means that two relatively trivial offences, even if they took place many years apart, would trigger the 30-year sentence, he said.
When a court finds "substantial and compelling circumstances" to be present, it cannot altogether ignore the minimum sentences prescribed in the Act, since they should still serve as a benchmark for the lesser sentence the court decides to impose, he reasoned.
Trengove told the two judges that prescribed minimum sentences are not unconstitutional as a matter of principle. With the Stock Theft Act, though, the prescribed sentences are unconstitutionally severe, he argued.
The prescribed sentences are out of balance with the way different sorts of crimes - from the most serious, like murder, high treason and rape, to the least serious, such as loitering - are regarded by the law, Trengove argued.
Repeating concessions that Attorney General Albert Kawana already made in an affidavit that was filed in the case late last year, Nixon Marcus, who represented Government and the Attorney General, told the court that it is conceded that the prescribed minimum sentences of 20 years and 30 years are unconstitutional.
Marcus said the Attorney General is conceding that the shortcomings in the Act are that it fails to distinguish between different kinds of livestock and the fact that it prescribes the same sort of sentence for different offenders, irrespective of the number and value of animals they had stolen, when the value of the stolen livestock exceeds N$500.
Marcus added that the Attorney General is conceding that instances can arise where the sentences imposed in terms of the Act would be disproportionate to the offence committed.
The court reserved its judgement after it had heard the three lawyers' arguments.
Trengove was assisted by Norman Tjombe, on instructions from the Legal Assistance Centre.