17 January 2013

Namibia: Shalli Shoots Blanks Against POCA

THE Prevention of Organised Crime Act has emerged unscathed from an attempt by former Namibian Defence Force Chief Martin Shalli to have the law declared unconstitutional.

An application by Shalli to have the Act declared unconstitutional was dismissed with costs in the High Court in Windhoek yesterday. Shalli did not manage to prove his claims that his constitutional rights are being violated by the part of the law dealing with the preservation and forfeiture of property used in the commission of an offence, or which is the proceeds of unlawful activities, the court ruled in its judgement.

Specifically, Shalli has not shown that his right to be presumed innocent until alleged criminal conduct has been proven against him, his right to a fair trial, his right to property, and his right to dignity are being violated by the parts of the law he was attacking, Judges Dave Smuts and Harald Geier agreed.

Shalli lodged an application to have the law declared unconstitutional in early May last year, after the prosecutor general had obtained a preservation order which in effect froze the equivalent of about N$2,8 million which was being kept in a Zambian bank account in Shalli's name.

The order was granted in terms of the Prevention of Organised Crime Act (POCA).

Prosecutor General Martha Imalwa is alleging in an affidavit filed with the court that the money in Shalli's Zambian account is the proceeds of unlawful activities, namely corruption, tax evasion, and money laundering.

Imalwa has informed the court that evidence at her disposal shows that a Chinese company, Poly Technologies Incorporated, from whom Government bought military equipment to the value of US$126,4 million while Shalli was in command of the Namibian Defence Force, made payments totalling US$500 000 into Shalli's Zambian bank account in October 2008 and February 2009.

These payments were reflected as being a "commission".

According to Imalwa, Shalli has told the police that the Chinese company paid him US$$500 000 for the rent of his house in Windhoek for a period of ten years.

Shalli has stated in an affidavit of his own that he is confident that he will be acquitted of possible future criminal charges.

Shalli initially asked the court to declare POCA as a while unconstitutional. With the hearing of arguments before the two judges in October, Shalli's legal counsel, Jeremy Gauntlett, SC, however limited his attack to the part of POCA dealing with the preservation and forfeiture of property which is the proceeds of unlawful activities or has been involved in the commission of an offence or suspected offence.

It is now widely accepted in the international community that criminals should be stripped of the proceeds of their crimes, and that the purpose of this is to remove the incentive for crime, rather than to punish them, Judge Smuts noted in the judgement, which he wrote.

Senior counsel Wim Trengove, who represented the prosecutor general and the attorney general, argued that the preservation and forfeiture of property under POCA is directed at the property and proceeds and instrumentalities of crime, and not against wrongdoers.

With asset forfeiture proceedings being civil, rather than criminal, in nature, and not being related to a criminal prosecution and punishment of offenders, the constitutional right to be presumed innocent would not arise in such proceedings under POCA, Judge Smuts reasoned.

The part of POCA which requires the High Court to grant an initial property preservation order without prior notice of such legal proceedings having been given to parties concerned can be criticised with some justification, but because such an initial order would only be an interim order, it would not infringe a person's right to a fair trial, the judge further found.

On Shalli's complaint about his right to property being violated, Judge Smuts stated that the Constitution does not protect the ownership or possession of the proceeds of crime. Even if POCA were to infringe on the right to property, it would in his view be a proportionate response to a fundamental problem which is being addressed, namely that no one should be allowed to benefit from their wrongdoing, Judge Smuts stated.

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