Stock Theft Act under attack

By: WERNER MENGES

REPEATEDLY convicted cattle thief Willem Peter, who received a 30-year jail term in the High Court last month for stealing one cow, has filed a case to question the constitutionality of the severe sentences prescribed by the Stock Theft Act.

Peter wants the High Court to declare the section of the Stock Theft Act that caused him to be sent to prison for 30 years as unconstitutional – and he is using an affidavit by acting Attorney General Albert Kawana to back up his claim on this score.
In an affidavit filed with the High Court in another case in which the constitutionality of the sentences prescribed in the Stock Theft Act is being attacked, Kawana concedes that the section of the Act being questioned in that case is in conflict with the Constitution.
Kawana made the concession in connection with the section of the Stock Theft Act that prescribes a minimum sentence of 20 years’ imprisonment for a first offender convicted of stealing livestock valued at more than N$500.
The acting Attorney General further conceded that the prescribed sentence in that case is also inconsistent with the International Covenant on Civil and Political Rights and with the African Charter on Human and People’s Rights, which have both been ratified by Namibia.
In the affidavit, which was made on November 24 last year, Kawana admits that the minimum prison sentence of 20 years that the Stock Theft Act prescribes for any first-time offender convicted of stealing livestock valued at more than N$500 is in conflict with the right not to be subjected to cruel, inhuman or degrading treatment or punishment.

WORSE THAN MURDER?

Kawana deposed to the affidavit in his capacity as acting Attorney General. He states that he was also making the affidavit on behalf of the Prosecutor General and Government.
The Attorney General, the Prosecutor General and Government are cited by convicted goat thief Protasius Daniel as the respondents in a case in which Daniel is trying to get the law under which he was sentenced to 20 years in jail for the theft of nine goats declared unconstitutional.
As a second offender, Peter was sentenced under a different section of the Stock Theft Act than Daniel.
Peter was convicted of stock theft for a first time in 1997, when he was found guilty on a charge that he had stolen eight head of cattle.
Having again been convicted of stock theft – this time for the theft of a cow that was shot during a poaching excursion between Outjo and Kamanjab on the evening of December 6 2006 – Peter fell under the Stock Theft Act’s section that prescribes a minimum jail term of 30 years for someone convicted of stock theft for a second or subsequent time.
The Stock Theft Act allows a court to impose a sentence that is less than the prescribed prison term if the court finds “substantial and compelling circumstances” that would warrant such a deviation from the prescribed sentence. The courts that sentenced Daniel and Peter both did not find such circumstances to be present in their respective cases.
The same opinion that Kawana expressed in his affidavit on Daniel’s constitutional challenge should apply to the section of the Stock Theft Act under which he was sentenced, Peter is stating in the case that he filed with the High Court on December 15.
In almost identical affidavits filed with the High Court, Peter and Daniel are both charging that the fact that stock thieves face severe minimum prescribed jail sentences, while murderers for instance do not, indicates that Parliament has “considered the crime of taking another’s life less serious than taking another’s livestock”.
They state: “This, unfortunately, has the risk of perpetuating an impression with the public that crimes against property are more serious than crimes against persons and their dignity. Quite frankly, the message is: rather commit murder than steal a goat.”
Kawana was the Minister of Justice when the Stock Theft Amendment Act of 2004, which introduced the severe minimum prescribed sentences, was steered through Parliament in 2004. At the time, he was reported as having stated his support for the new law in the National Assembly, where he reportedly made a remark that stock theft was tantamount to economic sabotage.
In the affidavit filed with the High Court, Kawana is now stating that the 20-year prison sentence that the Stock Theft Act prescribes for people convicted of stealing stock worth more than N$500 “is likely to be grossly disproportionate to the offence committed in many instances as it does not differentiate between different kinds of stock”.
Because of its failure to differentiate between different kinds of livestock or the value of the stock involved in a case and also because of the prevalence of stock theft in Namibia, this prescribed sentence will be shocking with respect to hypothetical cases which can be expected to occur, Kawana states.
“The word ‘shocking’ in this sense refers to a sentence ‘so excessive that no reasonable man would have imposed it’ or a sentence that is grossly disproportionate to the wrongdoing or the offence,” Kawana states, adding that as a result he is conceding that the part of the law in question is in conflict with the Constitution’s prohibition of cruel, inhuman or degrading treatment or punishment.
A mandatory term of imprisonment for stock theft is not in itself unconstitutional, Kawana states. He is suggesting that the court only strikes out the part of the law where it provides for imprisonment “for a period not less than 20 years” – which would still leave first-time stock thieves to at least face a prison term without the option of a fine.
A date for the hearing of the constitutional challenges to the Stock Theft Act is expected to be allocated by the Registrar of the High Court on February 3, Legal Assistance Centre Director Norman Tjombe, who is representing both Daniel and Peter in the two cases, said on Monday.

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