Regional perspective: Eastern and Southern Africa

Case study 2 (Interpretation of domestic law guided by UNTOC- Namibia)

In State v Henock and Others (2019), the High Court of Namibia described the circumstances that gave rise to the birth of the Prevention of Organised Crime Act 29 of 2004 (POCA) in the Namibian context. The Court stated:

[6] The existence of international organised syndicates is real and their activities are primarily aimed at the accumulation of wealth through illegal means, such as human trafficking, drugs, poaching, fraud etc. In order to benefit from their illegal activities and avoid prosecution, syndicates would endeavor to hide the illicit origin of their assets, being the proceeds of crime. These assets may then be used to finance further criminal operations. If left unchecked money-laundering could facilitate illegal activities at the expense of countries’ development. Furthermore, because of the result of technological advancements and globalisation, syndicates have discovered ways and means to transfer assets from one place to another and across borders. The crime of money-laundering is thus an international problem which called for an international solution.

The Court elaborated on the interpretation of domestic statutes derived from international agreements like the Organized Crime Convention, signed by Namibia on December 23, 2000, and ratified on August 16, 2002.

In the view of the Court:

[...] courts, when interpreting statutes, should endeavor to interpret those statutes in conformity with international law. Furthermore, […] there is a presumption that Parliament, in enacting a statute, intended it to be in agreement with international law. To this end, the Legislative Guides drafted by the United Nations office on Drugs and Crime Division for Treaty Affairs assist in the interpretation of those provisions. When interpreting domesticated laws, it is imperative to look at the legislative guides, especially where the domesticated law is silent on a certain aspect.

In the Henock judgment, the Court reviewed nine cases to clarify the issue of duplication of convictions under POCA. In each of those cases, people had been convicted and sentenced for offences having the nature of theft (predicate offence), except for one where the predicate offence was receiving stolen property, and for contravening either sections 4 (i.e. disguising unlawful origin of property) or 6 of POCA (i.e. acquisition, possession or use of proceeds of unlawful activities). 

The Court looked at the definition of ‘serious crime’ included in the Organized Crime Convention to conclude that POCA’s severity of punishment implies that the Namibian legislature intended to criminalize the offence of money-laundering also for serious predicate offences, as opposed to offences that are of less serious nature. However, in the absence of legislation establishing which predicate offences are serious, the Court highlighted that prosecution under POCA lies within the discretion of the Prosecutor-General. This discretion must be exercised judiciously and should be guided by POCA’s provisions and binding international agreements.

The judgment further clarified the application of sections 4 and 6 of POCA. It held that the author of the predicate offence can equally commit money-laundering when he/she commits any further act in connection with property being the proceeds of unlawful activities (section 4). On the other hand, section 6 only applies to a person other than the author of the predicate offence. Also, since the elements of the offence created under section 6 are similar to the elements of theft, the Court held that convicting for both theft and the contravention of section 6 would amount to a duplication of convictions.

Case-related files

• State v Henock and Others (CR 86/2019) [2019] NAHCMD 466 (11 November 2019). 

Significant features

• POCA interpretation guided by the Organized Crime Convention and its Legislative Guide
• Duplication of convictions 

Discussion questions

• What legal principle is violated by the duplication of conviction?
• According to the Court, what should guide the interpretation of domestic law enacted on the basis of international agreements? What principles of legal interpretation can you extract from the judgment? 
• Research the status of adherence of the Organized Crime Convention and its Protocols in countries of your region. 

Exercise 1

Read the scenarios drafted below (based on the cases reviewed by the High Court of Namibia in State v Henock and Others). For this exercise, divide the students in groups and assign a case and a role to each group: taking into consideration the High Court’s judgment, they should either argue in favor or against the ruling from the perspective of a prosecutor and a defendant’s lawyer in each scenario.

• Mr. Doe broke into the home of the Patricks and stole two laptops and a TV set. Afterward, he sold the laptops to Mr. Nogood and bought food and drinks with the proceedings. 

Mr. Doe was charged and convicted with the offences of housebreaking, theft, and money-laundering (section 6, POCA).

• Ms. Tilly invited her friend Ms. Terius to spend the summer at an ocean village. A few weeks after arrival, Ms. Terious found $4,000 in a drawer, took the money, told Ms. Tilly she had to go back home urgently and left. From the stolen money, she used $3,500 to settle her debts and $500 to buy shoes. 

Ms. Terius was charged with theft and money laundering (section 6, POCA).

• Mr. Woolf and two friends had a heated discussion with Mr. Woolf’s neighbor about the abilities of football player Messi. At night, the three entered surreptitiously into Mr. Woolf neighbor’s farm and stole nine sheep. Then, they walked down the road with the sheep. At dawn, tired of walking, one of the friends sold a sheep in exchange for transportation to the closest village, where police caught them. 

The three were charged with theft and money laundering (section 4, POCA).