Hatuikulipi v Prosecutor-General NAHCMD (17 October 2023)
Flynote
Constitutional law – Challenge to provisions of the Prevention of Organised Crime Act 29 of 2004 – The provision ‘or it appears to the court that there are reasonable grounds for believing that a confiscation order may be made against the defendant’ not violating Article 12(1)(d) and Article 16 of the Namibian Constitution.
Facts
The applicant, James Hatuikulipi, is facing charges under the Prevention of Organised Crime Act 29 of 2004 (POCA) and is awaiting trial. A restraint order was issued against him in terms of sections 24(1)(a) and 25(2) of POCA which permits the court to issue a restraint order against a defendant who is being prosecuted if there are reasonable grounds to believe that a confiscation order might be made in the future.
Issue for determination
The core issue at hand revolved around the constitutionality of the aforementioned sections of POCA. The applicant contended that the ‘reasonable grounds’ test in these sections violated his rights under articles 12(1)(d) and 16 of the Constitution. Specifically, the applicant sought to have certain phrases within these sections declared unconstitutional and struck down.
Discussion
Civil and not criminal proceedings and remedies
The proceedings under POCA are civil, as opposed to criminal proceedings and the remedies thereunder are civil remedies (Lameck v President of the Republic of Namibia 2012 (1) NR 255 (HC) paras 62-69). Once an accused has been convicted, the court determines the value of the benefit the accused derived from the offence of which he has been convicted and from such other criminal activities as it finds to be sufficiently related to that offence. It may then in terms of s 32(6)(b) make a confiscation order against the accused ‘for the payment to the State of any amount it considers appropriate’ up to the value of the benefits he or she derived from his or her crimes. Although the order is called a ‘confiscation order’, it is according to s 32(2), read with s 37, in fact, a civil judgment against the accused for the payment of an amount of money to the State. The overall effect of Chapter 5 is to allow a court, which convicts an accused, to grant a civil judgment against him in favour of the State for the payment of an amount up to the value of the benefits he derived from the crime for which he has been convicted and such other criminal activity which, the court finds, to be sufficiently related to it.
‘[6] It is neither insignificant nor aleatory that the title of s 18 of POCA is: Proceedings are civil, not criminal’. Subsection (1) of s 18 provides:
‘For the purposes of this Chapter (i.e., Chapter 5, titled “Confiscation of Benefits of Crime”), proceedings on application for a confiscation order, a restraint order or an anti-disposal order are civil proceedings, and are not criminal proceedings.’
[7] The essence of those words is that they mean what they say, namely, that proceedings in respect of an application for a restraint order or confiscation order under POCA are civil proceedings and not criminal proceedings.’
Justification for and purpose of POCA
‘[8] The justification for and purpose of POCA lies in both international law and Namibia’s domestic law, including the Namibian Constitution (the Constitution).
[9] International law requires Namibia to provide for the freezing and confiscation of the proceeds of crime. The purpose of international legal instruments or treaties is to combat crime generally, particularly transnational organized crime and corruption of the kind of which the applicant stands accused. Namibia is a State party to the United Nations Convention against Transnational Organised Crime. Article 12(1) provides that State parties must, to the greatest extent possible, adopt such measures as may be necessary to enable the confiscation of the proceeds of crime or property to the value of such proceeds. Article 12(2) provides that they must adopt such measures as may be necessary to enable the freezing or seizure of such property for the purpose of eventual confiscation.
[10] Namibia is a State party to the United Nations Convention against Corruption. Article 31 rehearses Article 12 of the aforementioned Convention against Transnational Organised Crime.
[11] Moreover, Namibia is a State party to the African Union Convention on Preventing and Combating Corruption. It, too, requires member States, in article 16(1), to adopt such legislative measures as may be necessary to enable its authorities to freeze and seize the proceeds of corruption pending a final judgment for their confiscation.
[12] These treaties are significant for a variety of reasons. They impose an obligation on Namibia as a member of the comity of States under international law to enact and implement laws for the seizure, freezing, and ultimate confiscation of the proceeds of crime generally and transnational corruption in particular. Moreover, these treaties form part of the domestic law of Namibia in terms of Article 144 of the Constitution. Indeed, in Government of the Republic of Namibia and Others v Mwilimaand All Other Accused in the Caprivi Treason Trial2002 NR 235 (SC) at 259H, the Supreme Court laid down those international agreements being part of the law of Namibia in terms of Article 144 ‘must be given effect to’. Furthermore, the treaties are significant because they make it clear that measures for the seizure, freezing, and ultimate confiscation of the proceeds of crime are regarded internationally as permissible and, indeed, necessary means of combating crime, and they are compatible with international human rights norms.’
In Shalli v Attorney-General2013 (3) NR 613 (HC) the court described the purpose of asset forfeiture under POCA and in the earlier case of Lameck v President of the Republic of Namibia, the court emphasized that the primary purpose of asset forfeiture under POCA is not to punish criminals but to ensure that nobody benefits from their wrongdoing. The court had in 2012 stated that-
‘From this primary purpose, two secondary purposes flow. The first is general deterrence: to ensure that people are deterred in general from joining the ranks of criminals by the realization that they will be prevented from enjoying the proceeds of the crimes they may commit. And the second is prevention: the scheme seeks to remove from the hands of criminals the financial wherewithal to commit further crimes. These purposes are entirely legitimate in our constitutional order.’
‘[15] The holding by the court in Lameck concerns asset forfeiture. I see no good reason why it should not apply with equal force to asset preservation which are all dealt with under Chapter 6 of POCA. More importantly, the holding by the court is in tune with the objects of the aforementioned international treaties.
Applicable principles and approaches
[16] In considering the applicant’s constitutional challenge based on Article 12(1)(d) and Article 16 of the Constitution, I keep in my mental spectacle the following trite principles of our law concerning (1) constitutional challenge in general and (2) constitutional challenge of a provision of a statute in particular. Under item (1), it has been said that the person complaining that a human right guaranteed to him or her by Chapter 3 of the Constitution has been breached must prove such breach. Before it can be held that an infringement has, indeed, taken place, it is necessary for the applicant to define the exact boundaries and content of the particular human right, and prove that the human right claimed to have been infringed falls within that definition. Under item (2), the inquiry must be directed only at the words used in formulating the legislative provision that the applicant seeks to impugn and the correct interpretation thereof to see whether the legislative provision has in truth been violated in relation to the applicant.
[17] In that regard and crucially, where a statutory provision is sought to be impugned on the basis that it is inconsistent with the Constitution, the court must concern itself with only that statutory provision; the court must not concern itself with an ensuing act of the public authority that administers the statute concerned.’
Conclusion
After applying the foregoing principles, approaches, and authorities to the application, the court concluded that:
‘[28] Accordingly, I find that the applicant’s attack on the reasonable grounds test in relation to Article 16 of the Constitution is plainly based on the applicant’s erroneous interpretation of the concerned provisions in POCA. The attack is, therefore, rejected as having no merit.’
The Prosecutor-General does not have untrammeled discretion in the exercise of her discretional powers under POCA in respect of applications for restraint orders. The discretion she exercises is not absolute discretion: It is guided discretion.
Article 22 applies to those fundamental rights and freedoms that are derogable, but Article 12 is not derogable. As to Article 16, the Constitution does not, in Article 22(b), prescribe the manner in which the constitutional instructions in Article 22(b) must be formulated. In my view, the long title of POCA sets out sufficiently and satisfactorily the extent of the limitation and that it concerns Article 16 of the Constitution.
The provisions of a statute must be read globally and intertextually with other provisions of the statute in question to arrive at the correct interpretation. Therefore, section 24 should be read intertextually with section 25 in order to arrive at a correct interpretation of the two connected sections of POCA.
‘[40] I have found previously that a restraint order under POCA is essentially a hold-over order, serving in the interim a reasonable purpose. It preserves the applicant’s realizable assets to cater for the possibility, not likelihood, of a confiscation order at the end of the applicant’s criminal trial. Nothing prevents the applicant from persuading the court seized with a restraint order proceeding to invoke its power under s 25(2) and (3) to find that an open-ended restraint order, covering all the realizable assets of the applicant, would occasion hardship to the applicant and, accordingly, pray to the court to exclude some assets from the purview of the restraint order it might grant.
[42] In our law, the word ‘must’ in a statutory provision does not lead to only one conclusion, without more, that the provision is peremptory, as opposed to directory. Regard must be had to the intention of the Legislature. Besides, the scheme of the provision is that the court is vested with discretion and a duty to act. It is only when the court has exercised its discretion that ‘prescribed objectively determinable facts’ in s 24(1)(a)(ii) existed that its duty to issue a restraint order would arise…
[43] The conclusion is inescapable that, pace Mr Soni, the use of ‘must’ in the chapeau of s 25(2) does not take away the court’s judicial obligation under article 5 of the Constitution. Any argument that it does is, with respect, fallacious and self-serving, and must be rejected, as I do.
[45] Based on these reasons, I come to the ineluctable conclusion that the applicant has failed to make out a case for the relief sought.’
Therefore, it was held that:
Since the right to presumption of innocence is under article 12 of the Constitution, which is not derogable, Article 25(2) did not apply.
Held, further that where the court is seized with a constitutional challenge of a provision of a statute, the court must concern itself with only the formulation of the said provisions and not any act taken to implement the said provisions to see whether the formulation as it stands is Constitution compliant.
As a result, the application was dismissed, with no order as to costs.
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