Lameck and Another v President of Republic of Namibia and Others (54 of 2011) [2012] NAHC 31 (20 February 2012)

Key Facts

Issues

• Challenge to the constitutionality of sections 1(5), 4, 6, 7, 8, 11, 22, and 23 of POCA, alleging retrospective criminalization of conduct lawful at the time of its commission and unconstitutionally broad definitions of 'unlawful activity' and 'proceeds of unlawful activities' under Article 12(3) and other constitutional protections.
• Constitutionality of the broad definitions of 'corruptly' and 'gratification' in the Anti-Corruption Act, and their application in sections 33, 36, 42(2), and 46. The applicants argued these definitions violate the principle of legality and are impermissibly vague, while the court considered their severability and constitutional compliance.
• Whether the dual appointment of Ms. Pendukeni Iivula-Ithana as Minister of Justice and Attorney-General under Articles 32(3)(i) and 87 of the Namibian Constitution is valid, given constitutional provisions that distinguish the Attorney-General's role from Cabinet membership and potential conflicts with institutional integrity.

Holdings

• The court declared the definition of 'corruptly' in the Anti-Corruption Act unconstitutional due to its vagueness and impermissibly wide scope, but upheld the remainder of the Act's provisions as valid.
• The court upheld the constitutionality of the dual appointment of the Attorney-General as a Minister of Justice, stating that the Constitution does not prohibit such an appointment and that the President has discretion to make it.
• The court ruled that the money laundering and asset forfeiture provisions in POCA do not operate retrospectively, as they criminalize current conduct related to proceeds of unlawful activities after the Act's commencement, not the original unlawful activities themselves.

Remedies

Legal Principles

• The court declared sections of POCA and ACA invalid as ultra vires the Constitution, particularly the definition of 'corruptly' in ACA for violating the principle of legality and rule of law. Other provisions were upheld as constitutional.
• The judgment emphasized a purposive constitutional interpretation, referencing the 'spirit of the Constitution', 'ethos of the people', and 'cardinal values' to determine the validity of legislative provisions and appointments.
• The court examined whether the dual appointment of the Attorney-General as a Minister of Justice violated constitutional separation of powers principles. The applicants argued this diluted institutional integrity, while the court concluded the Constitution does not prohibit such dual appointments.
• The court applied the rule of law through the principle of legality (constitutional requirement for laws to be clear and not arbitrary) and addressed retrospective criminalization claims under Article 12(3) of the Constitution.

Precedent Name

• Mohunram v NDPP
• Ex Parte Attorney-General: In re corporal punishment by organs of State
• S v Amalovu
• Ex Parte Attorney-General, in re: The constitutional relationship between the Attorney-General and the Prosecutor-General
• NDPP v Basson
• NDPP v R.O. Cook Properties (Pty) Ltd
• S v Myburgh
• National Director of Public Prosecutions v Phillips
• NDPP v Mohamed
• Government of the Republic of Namibia v Cultura 2000
• Prophet v NDPP
• Africa Personnel Services v Government of Namibia

Cited Statute

• Prevention of Organized Crime Act, 2004
• Anti-Corruption Act, 2003

Judge Name

• MILLER
• HOFF
• SMUTS

Passage Text

• The primary purpose of Chapter 5 of POCA is not punitive, but to ensure that no person benefits from his or her wrongdoing. Its secondary purpose is to promote general crime deterrence and prevention by depriving people of 'ill-gotten gains'.
• What is thus criminalised is the current possession, acquisition and use of the proceeds of unlawful activities and not the original conduct which rendered those proceeds as unlawful. That conduct could have occurred before POCA came into force. But it is the subsequent possession, use or acquisition after POCA came into operation which is criminalised by POCA.
• The definition of 'corruptly' contained in s 32 of the Anti-Corruption Act 8 of 2003 is declared unconstitutional and struck down.