17 January 2013

Namibia: Ret Gen Shalli's Challenge of POCA Dismissed

Windhoek — The High Court yesterday dismissed the application in which the former chief of the Namibian Defence Force (NDF) Ret. Lieutenant-General Martin Shalli challenged the constitutionality of the Prevention of Organised Crime Act (POCA).

Judge Dave Smuts and Judge Harald Geier heard the application on October 19 last year. However, Judge Smuts only delivered the judgment yesterday.

Judge Smuts said Shalli has not established in his application that the provisions of chapter 6 of POCA violate his constitutional rights. The application was dismissed with costs.

Shalli wanted the court to declare POCA, one of the chief legal weapons in combating corruption, unconstitutional. He also wanted the court to rule that parts of POCA dealing with the preservation and forfeiture of property used in the commission of an offence, or which are the proceeds of unlawful activities, were unconstitutional.

In October 2011, the Prosecutor-General obtained a court order to freeze the equivalent of N$2.8 million in a Zambian bank account in the name of the former NDF chief. The money was allegedly paid to the popular army general by a Chinese company that had a contract to supply the Namibian Defence Force with military equipment valued at close to 1 billion Namibian dollars.

Shalli allegedly informed the police that the money he received from the Chinese company was for the lease of his house in Windhoek by the company, the court was told in 2011. Prosecutor-General Martha Imalwa obtained a property preservation order in respect of the Zambian bank account in Shalli's name on September 30, 2011. As a result of that order, an amount of US$359 526 (about N$2.8 million) held in a Standard Chartered Bank account was frozen.

Through an affidavit filed with the court, Imalwa stated that evidence at her disposal showed that a Chinese company, Poly Technologies Incorporated, from whom Government bought military equipment to the value of US$126.4 million, made payments totalling US$500 000 into Shalli's Zambian bank account in October 2008 and February 2009. Those payments were allegedly reflected as being a 'commission'.

Senior counsel Jeremy Gauntlett from South Africa represented Shalli, on instructions from Lorentz Angula Inc. Wim Trengove, SC represented the Attorney-General and the Prosecutor-General, on the instructions from the Government Attorney's office.

Gauntlett, SC, argued that both forms of forfeiture in POCA are constitutionally problematic in that they violate the right to property in the sense that property is rendered liable to forfeiture, despite the fact that no crime has been proven in accordance with the standard applicable to crimes. He also argued that the Act violates an accused person's fair trial rights in the parallel criminal proceedings by requiring an accused to provide a defence or prove an exception to the preservation or forfeiture provisions.

He said Shalli's right to fair procedure in POCA proceedings are violated by truncating the proper procedural safeguards applicable to civil proceedings in peremptory terms; and violates his right to dignity by subjecting him or her to legal proceedings for the perceived greater public interest allegedly served by POCA.

Trengrove, SC, however, argued that POCA gives effect to the international obligations of the Namibian State under various international treaties. He referred to the United Nations Convention against Transnational Organised Crime, which obliges state parties to take wide-ranging measures to combat organised crime and specifically to adopt measures to enable the confiscation of the proceeds of crime and property or equipment or other instrumentalities used in or destined for use in the commission of crimes.

He also referred to the United Nations Convention against Corruption, which obliges member states to adopt measures to combat corruption, including those which enable the confiscation of the proceeds of and instrumentalities of various forms of corruption by the freezing or seizure of items for the purpose of their eventual confiscation. Shalli was retired close to two years ago with full military honours.

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