To some people "the law is an ass".
This phrase, taken from a play in the 1600s and later made popular by Charles Dickens in 'Oliver Twist', originally mirrored the mythical stupidity attributed to some animals, in particular donkeys.
It is now frequently used when vexatious legal questions are debated. It is used by those who question the law because of what they consider to be its rigidity.
The phrase "the law is an ass" is now also used by some who feel the law is an ass because it is not good enough to suit their political narratives.
A few days ago, we woke up to a newspaper article suggesting the provision of food at political parties' rallies is a bribery offence in terms of the Electoral Act (2014).
This suggestion is a deep fallacy.
Chapter 6 of the act created a number of statutory offences.
It is only section 181 of the act which created the offence of bribery. But it has nothing to do with supplying food at rallies as suggested by the media and some politicians.
Section 181 simply provides that a person who corruptly renders, procures or gives money, or any other thing, to or for any voter for purposes of corruptly influencing a voter to record or abstain from recording their vote, commits an offence.
'Treating
Section 181 does not refer to food as an element of this bribery offence.
Rather, under section 184, the act creates another statutory offence - not bribery, but "treating".
In terms of section 184, a person may commit "treating" (not bribery) if they corruptly give or provide or pay, in full or in part, an expense, or give any provisions to any other person for purposes of "corruptly" influencing them to record or abstain from recording a vote.
Section 184 also creates an offence if a "voter" (not just anyone) corruptly accepts or takes payment, food, drink or entertainment.
But this voter only commits an offence if they corruptly accept food to record or abstain from recording a vote.
Only the corrupt acceptance of food by a voter is prohibited by law, not acceptance of food in an ordinary and usual manner - either because a voter is hungry or that food is being served ordinarily as part of refreshments at a political rally.
It is thus plain from the scheme of Chapter 6 of the act that an electoral bribery offence does not exist concerning provision or availability of food before, during or after an election as some suggest.
'MISCHIEVOUS MEDIA'
What is clear is that the media, convinced that the offence "treating" is not morally wicked enough, mischievously sought to create a non-existent crime of "bribery" in relation to food at rallies.
I fear that for a long time some media houses in Namibia have developed a dangerous habit of rendering some elements of statutory offences nugatory (of no value) by wishing them away, or reading in new elements, to suit a particular narrative.
A good example is that the media has been misstating the offence of being found in possession of suspected stolen property without providing a reasonable explanation for the possession thereof.
It has been implied that simply possessing suspected stolen property is an offence in Namibia.
There is no such offence in Namibia.
The only offence is where someone found in possession of suspected stolen property is unable to furnish a reasonable explanation for possessing such stolen property.
MONEY LAUNDERING
More disconcertingly, some media have been misstating money laundering offences, in particular those under section 6 of the Prevention of Organised Crime Act.
It has been suggested that one can commit a money laundering offence by merely possessing, or receiving, proceeds of unlawful activities.
This is patently wrong: this offence can only be committed if one possesses property (including money) if such a person knew or ought reasonably to have known that such possession of money formed part of unlawful activities.
Therefore, conduct can only qualify as a money laundering offence under section 6 of the Prevention of Organised Crime Act if it is established that a person knew, or ought reasonably to have known, that such property was part of unlawful proceeds.
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CONSEQUENCES
It is time for the media to heed the caution sounded by a South African court in 1939 - it stated that allegations that carry serious consequences, in this instance a political party being accused of food bribery, must be made on the basis of the clearest, satisfactory and convincing evidence.
Under Article 16 of the Constitution, political parties also have a constitutional right to dispose of their property.
The fact that such property was food or drinks does not derogate from the fact that a political party is simply exercising its constitutional right to dispose of its property.
The only prohibition is the offence of treating, but it can only be committed if such distribution to voters is made "corruptly" for purposes of "corruptly" influencing them to record or abstain from recording a vote.
- * Sisa Namandje is a legal practitioner of both the Supreme Court and High Court of Namibia. He is also the author of six law books.
