Reasonable minimum sentences may be justified, i.e. regarding sexual violence, in particular if in line with international research it is recognized that the underlying psycho-structural factors contributing to acts directed against the (sexual) self-determination, can often not be eliminated without lengthy interventions through cognitive-behavioural programmes.

This line of argument cannot, however, be applied through the bench to just any other criminal act.

If one considers the merits of minimum sentences one finds basically two lines of argument.

The first one is based on retribution, and follows the principle quid pro quo.

The other is built on utilitarian theory, which holds that human beings are rational actors who balance cost and benefits when choosing and enacting their intentions.

This is deterrence theory, or the hope that deterrence will prevent specific unwelcome acts in the future.

The first argument limps often at first sight.

It is for instance not intelligible that the theft of a cow, worth N$1500, warrants the imposition of a minimum imprisonment of twenty years.

This is a case for constitutional review, not only because it violates the principle of proportionality; it should be possible to invoke also a violation of the constitutional right to equality in terms of Article 10 of the Namibian Constitution Although we cannot pre-empt the court's decision, the High Court should find sufficient arguments to declare the minimum sentence imposed by the Grootfontein Magistrates Court, and the relevant provision of the Stock Theft Act on which it is based, unconstitutional.

The construction of our modern constitutional law must match the requirements for reasonableness.

The law does not live by its wording alone, and in particular constitutional law is more than what can be found in the text of our constitution.

In our context it does not contain any express prohibition of minimum sentences.

But modern legal theory, and here in particular the research work done in recent years at the Research Unit for Constitutional and Legal Interpretation (RUCLI; University of Stellenbosch and University of the Western Cape) has put forth that a dynamic, holistic and integrative construction of the constitutional order against the backdrop of social data and the expert interpretation of such data by acknowledged and renowned scholars is required.

As will be argued in the following, such facts and data make a strong case against deterrence theory in general and the minimum sentence in terms of the Stock Theft Act in particular.

When it comes to criminal justice, which is always a mirror of social justice, the state, in this case the courts, imperatively has to take note of the social facts relevant to the construction of values, principles and rules.

In the context of the quest for the merits of deterrence theory social facts and their understanding by scholars of criminology cannot be ignored.

Should research results reveal that deterrence fails, totally or partially, deterrence theory should lose much of its persuasiveness within the Criminal Justice System (CJS).

This should also have a normative consequence, and inform the answer to the constitutional law question whether, and to what extent deterrence may be retained as permissible policy measure.

For any judge adjudicating at constitutional level, it is thus necessary to become aware and truly acquainted with entrenched criminological knowledge.

The point in question is What do we know about deterrence? It is interesting to note that according to longstanding criminological research deterrence works much differently from the layman's perception.

Fact is that it works! But the data are intriguing, because deterrence does not really work on the criminals who are at the receiving end of the law - deterrence works rather on the average law abiding citizen already deterred by previous learning and social sanctions!! How can that be explained? Modern action theory has developed classical utilitarian theory, which assumed that the existence of any item of human behaviour is prima facie evidence that its benefits exceed its costs (Bentham, 1789) towards an expectancy x value/utility model: The largely heuristic model presupposes that among a number of action alternatives in the environment of an actor, the selected action will be the action, which yields the highest utility.

The actor considers the probability of intended consequences/outcomes, thus we talk about expectancy, and the weight of this outcome against the outcome of other alternatives, hence the word utility.

Now, three crucial facts could be established through rigorous testing since the 1970s: First, short-term (pleasures) and long-term (pains) consequences of one's actions are differentially time-discounted depending on the current situation of individuals and personality of the actor; second, the huge majority of criminal acts are governed primarily by short term pleasures and only secondarily - if at all - by the threat of long term pains; third, the capacity of balanced consideration of short-term and long-term consequences depends on adequate socialization during early childhood, i.e., long before the age of 10.

It is more than 30 years ago that the now famous late criminologist Marvin E. Wolfgang could first demonstrate that about 5% of offenders from a birth-cohort account for approximately 60% of all crimes committed.

These findings have been replicated many times since then, and today we know that this small group of offenders usually lacks the capacity to make balanced decisions, due to unfavourable childhood development.

Another much replicated piece of research by Hans-Joerg Albrecht, the director of the Max-Planck Institute for foreign and international Criminal Law (Freiburg i.Br./Germany), proved in the 1980s that the escalation of punitive sanctions imposed on recidivists has no significant preventive effect on the above mentioned offender group.

What these findings tell us, counting one and one together, and with a bearing on our considerations as to minimum sentences for stock theft, is that crude punishment does not work as an additional measure of crime prevention.

The analysis of police dockets on stock theft will most probably show that persons involved are usually originating from a socially and economically disadvantaged layer of society.

Admittedly, organized crime may occasionally be involved.

However, those caught red-handed are usually individuals not living on the sunny side of life, and their typical biographic data and personality traits are most often associated with a here and now orientation, dragging negative short- and long-term consequences out of the action equation.

In conclusion, it can be said that harsher punishment does not prevent the precise criminal act any better, because the majority of tried criminals are not able to consider the harsh consequences in the decision making process leading to the criminal act.

On the other hand, any disproportionate punishment is also not necessary to deter the ordinary citizen, because on average, citizens are already deterred by previous learning and social sanctions, i.e. lesser means.

If our Government introduced the Stock Theft Act under the banner of crime prevention, with an aim to stem the "tide of crime", it has not made its homework.

It has seemingly not understood that good criminal policy is not equal to a threat of "locking them up".

This lesson could have been learned with the otherwise much commendable Combating of Rape Act of 2000.

Although long time lobbied for, and widely published, the adoption and judicial application of the latter has not had any significant impact on the incident of sexual violence - partly for the reasons set out above.

Also the US-American experience with deterrent tools like Megan's law, "three strikes and you are out"-policy, boot camps etc, could have shown that deterrence does not work the way it is hoped for.

"Get tough on crime"-policies have, nowhere on the globe had the desired effects.

When the USA got "tough", with huge opportunity costs for social policy and social welfare budgets, prisons got extremely full, but crime statistics didn't go down; they blew up.

Governments proposing deterrence blindfold their electorate.

They suggest that there are cheap means to get crime under control.

But the intuitive, "instinctive" lay-conception that best and simplest criminal policy has to make criminal behaviour so expensive that a reasonable human actor would refrain from choosing it is grossly wrong.

Strangely enough it is yet more persuasive to our Namibian law-makers than are the results of carefully executed empirical research.

But good criminal policy is good social policy, and this is not shifting the problem to another field.

Despite complex results, research documents the connection between unemployment and crime.

Governments should thus undertake to create decent-paying jobs for the poor.

In line with social disintegration theory governments should undertake more measures to restore the social integration and strengthen the social institutions of neighbourhoods, concentrating on children and adolescents.

Regarding the objectives of the Combating of Rape Act of 2000 society at large should change male socialisation practice so that notions of masculinity move away from violence and other criminogenic attitudes and values.

Yes, this is a Herculean task given that following independence and the growing exposure of the Namibian economy to global competition, the country drifted into a somewhat anomic situation, which could not be remedied yet.

However, deterrence through disproportional punishment doesn't work on those who due to unfavourable childhood development discount the long-term consequences of their acts and thus select themselves into criminogenic situations.

From a sociology-of-law point of view and given the compelling results of criminological research, extreme minimum sentences are senseless, and have to be discarded at constitutional level.

The disciplinary facts around this case against deterrence theory can be obtained through scholarly studies, which should include the following:

1. A General Theory of Crime (Michael R. Gottfredson and Travis Hirschi, 1990);

2. Criminology - A sociological understanding (Steven E. Barkan, 1997).

The first source, though heavily disputed for its confrontational style of presenting the facts, is possibly the most valuable key to further sources.

For its brilliance and sophistication it has become the most widely cited book on criminology of the 1990s.

The aetiology of crime is certainly more complex than could be dealt with here, but no judicial officer dealing with questions of criminological importance should ignore the rich arguments put forth in both works, which are available at the Department of Legal Studies of the Polytechnic - Namibia's University of Science and Technology.

* The author of this opinion piece, Stefan Schulz, is Deputy Director of Criminal Justice Studies at the Polytechnic of Namibia

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