Shebeens and the Liquor Act No.6 of 1998

THE implementation of the Liquor Act 6 of 1998 in Namibia is currently in limbo.

Recently, the country has been shaken by shebeen owners’ demonstrations, supported by prominent institutions such as the Namibian Chamber of Commerce and Industry, the National Union of Namibian Workers and the Namibia Shebeens Association (Nasa). At present, shebeen traders countrywide have shown non-compliance with the implementation of the Act.The people continue demonstrating against the implementation of the Act and the Government action is received with conflicting feelings in the society.Some sections of society support the Government while the shebeen traders believe that the law has deprived them of their rights.To them the shebeens are their major source of income.There were also some clashes between the Police and the demonstrators in various places countrywide.Many people question the implementation of the Liquor Act, which according to them would send the majority of people into poverty and a hopeless life.Some people, especially spiritual communities, hailed the implementation, which they believe would rid the nation of the chronic misuse of liquor which often results in committing crimes in society.Now the judgment is uncertain: Who is right and who is wrong in this situation? Some people went to the extent to blame the President, the Parliament and big business as being the agitators behind this Act to push the poor shebeen owners out of business.It is understood that the problem concerning implementation of this Act started some time ago.Although the Act was passed in 1998, it was implemented in 2002 with certain reservations from various stakeholders.Seemingly, the recent demonstrations were not the first of this kind in the history of the implementation of this Act.In 2004 The Namibian reported that close to 110 shebeen owners in Karasburg’s Westerkim residential area were set to lock horns with the town council.In 2005, the Namibian Economist also reported defiance of the shebeen owners to the Windhoek Municipal ordinances geared to regulate the shebeen trade in the City.In 2001 Nepru also warned that the Government’s Liquor Act which seeks to regulate the sale of liquor would not be implemented effectively, owing to some of the conditions set for bar and shebeen owners.”It will not be practical for most of these entrepreneurs to adhere to all the conditions, as their income may not be sufficient to accommodate the additional expenses required to erect the structures required,” Nepru says.Given these implications, it is imperative to analyse the objectives and requirements vis-à-vis the actual life of communities.Objectives of the Act In 1998, the Namibian Parliament passed the Liquor Act (Act No 6 of 1998) based on the following objectives: “Replace the three previous Liquor Licensing regimes (Ordinance 2 of 1969, Proclamation 205 of 1968 and Ovambo Liquor Enactment of 1973) with a single uniform law; eliminate colonial anachronism from the law; decentralise the licensing systems of liquor outlets; reduce and simplify the administrative procedures of the liquor law; ameliorate shebeen problems and to try bring unlicenced ‘cuca shops’ under licence control, in order to curtail the current situation of an illegal sector operating alongside a legal sector; and address the problem of alcoholism, in so far as this problem can be handled or helped by legislation.”Looking at the objectives of the Liquor Act, one would also develop the concern as to whether this Act was meant to enable efforts of small business enterprises or was meant to increase Government revenue only.The general perspective may mean that control of cuca shops by law is not clear here, apart from where it states that: “No person shall be granted an application for, or hold any licence, authority or certificate or act as a manager, if such a person: Is not a Namibian citizen or not lawfully admitted for permanent residence to, and resident in, Namibia.Is an unrehabilitated insolvent.Is under the age of 21 years.Has either in Namibia or elsewhere during the preceding five years under any law been convicted of an offence relating to: The selling or supplying of liquor to any person not entitled to purchase or receive such liquor.The selling, dealing in, or disposing of liquor without the licence required for such sale, dealing in, or disposal.”This indicates that the Act would not be effective in controlling alcoholism as appears in the objectives because it allows that the holder of a shebeen licence may sell liquor: “On any day, excluding a Sunday from 10h00 to 24h00.On Sunday, from 10h00 to 14h30 and from 18h00 to 24h00.”This stipulation may raise another concern that if the shebeens are allowed to open from 10h00 to 24h00 during working days then its effect on alcohol control is questionable.In addition, to issue licences to shebeen owners is in itself not a surety that alcoholism is under control.No argument is convincing that the negative effect of alcohol consumed at a licenced shebeen differs from the one consumed at an unlicenced premises.Given this argument, it would make sense to critique the objectives of the Liquor Act.It implies that the Act was not really meant to control alcoholism but to increase Government revenue.This reality is evident in stern requirements which the applicants could hardly meet.Requirements as serious implication Analytically, the current requirements derived from the Act are critical, and could not be met unless the Act is amended or compromised.It is worthwhile to have a look at some few as follows: “Location and usage of a proposed shebeen shall conform to the planning regulations applicable to the area concerned and to conditions laid down by the Regional Liquor Licencing Committee.”This requirement is questionable because it is not yet clear whether all regions have a Regional Liquor Licencing Committee up to now.Had the regions had these committees, the situation would not have exploded to an extent of current anarchy.At present, it is late to create these committees in the middle of current confrontations, because the angry shebeen owners would not accept them.”If a shebeen is attached to a dwelling or sleeping place.The shebeen must be separated from the dwelling or sleeping place by means of walls.”This requirement is implicated, because most shebeens in informal settlements and rural areas are in the form of shacks constructed in corrugated iron sheets only and in rural areas people use branches of trees or traditional huts as shebeen structures.Therefore, the requirement of walls is already a complication if not an impediment to deter poor shebeen owners who do not have money to make walls.The Act is silent in that scenario.Hence, if the law is silent the implementation thereof by the law enforcement agencies could also be difficult.The people would feel threatened because they have no money to buy cement or bricks for making walls.On the other hand, if the law enforcement agencies and authorities would let the people use branches as an alternative to construction materials, then the law is compromised and taken for granted.”The shebeen licence holder shall provide a sink or hand wash basin with running water that may be used by customers to wash their hands.”This requirement is also above the capacity of the shebeen owners in rural areas where running water is not available or is too scarce.On the other hand, you should not make alternative provision without amending the law, for example, by allowing the shebeen owners to just provide still water to their customers, since that is not what the law says.”The floor of the premises shall be constructed with a smooth finish capable of being properly cleansed.”This requirement is also not easy to tackle if the interpreter thinks of himself in the place of the poor shebeen owners.It is unlikely that a poor shebeen owner whose shebeen roof is a hut and its floor is sand could be a smooth finish at all.”The shebeen licence holder shall also provide servicing counters and seating accommodation for customers.There shall be sufficient suitable refuse receptacles on the premises.”These requirements cannot be practical in informal shebeens found in informal settlements and rural areas.As alluded to earlier, the major problem lies with the shebeen owners in rural areas and informal settlements where the people are too poor to buy material and to provide the facilities as required by this Act.Looking at the requirements above, it appears that the law is not clear in its attempt to define the concept of “shebeen”.It seems that the shebeens constructed in the form of huts and corrugated iron sheets could not fit in the current definition as given in the Liquor Act.The paradox is that the shebeens in rural or informal premises cannot meet the requirements provided in the law and the decision of the Government to close them, results in chaos, as is the case now.From economic perspectives, the implementation of the Act also gives negative signals.Since the requirements and procedures to obtain licences remain stringent, the Government is likely to lose a lot of money in many ways.For example, first, resources would be used in apprehending those shebeen owners who would become illegal dealers as a result of being unable to meet the requirements.Second, revenues levied from the Namibia Brewery products would also drop dramatically because the demand is expected to go down.Third, another fear is that, since the majority of the victims of the implementation of this Act are women, we cannot preempt the possibility of these people to even take sex work as an alternative way of survival.If this happens then the battle against HIV/AIDS is lost and the burden will fall on the shoulders of the Government.Culprits in the public eye It appears that the implementation of the Act reflects differently in the public eye.This could be attributed to different understanding of individuals in communities, vis-à-vis political, social and economic consequences.Laypersons relate the implementation of this law to the reign of the current President.This implies that most people are of the belief that it is the new President’s law and hence he should change it.In similar vein, the political parties, especially the opposition, have also seen it as a viable opportunity to campaign for political gains.However, the truth is that the Liquor Act is not President Pohamba’s Act and he does not have the power to change it either.This is in line with the fact that, “no one in Namibia is above the law”.In Namibia, the procedure to create or amend a law is roughly as follows: First the problematic situation should be identified, second, a white paper should be prepared and submitted to the Cabinet, third, the Cabinet should consider it in order to become a Bill, fourth, it should be tabled in the National Assembly for debate and reviewed in the National Council, fifth, it should be given to the Judiciary for scrutiny.In some instances, the bill is taken to the general public for input.If all these stakeholders are satisfied the bill should be taken to the President for signature and becomes what we call a law.In the case of the Liquor Act, the Parliament passed it in 1998 and the whole procedure was followed except consultation with the general public.The political parties who are currently blaming the Government were all present in the two houses of Parliament when the law was passed and they failed to influence the decision.Therefore, it should be noted that neither the former President, nor the current President should be blamed for flaws in the law, since the law was passed via a legally stipulated process.If this law is to be amended, the same procedure should be followed and no individual person, not even the President, should amend it.This is what the people should have been told.Where does the confusion lie? The reality is that the confusion is between the Ministry of Trade and Industry, the Police, traditional authorities and the shebeen owners.The Police do not accept the licences issued by the traditional authorities, which the shebeen owners have, and the Police demand the compliance with the requirements of the Act.The traditional authorities perceive the implementation of the Act as a threat to their authority because they are now deprived of their power to issue the licences, as was previously the practice.However, this brings us to note that all demands and proposals made by the cuca shop owners, the Police and the Ministry of Trade and Industry will be fruitless if the law is not amended.The shebeen owners, especially, demand proper explanation of the Act, enough local offices where people could apply for licences and the simplification of the process and procedures, which to them are currently too long and complicated.On the other hand, the Police promised to hold information meetings with the communities to discuss the implementation of the Act.Meanwhile, senior officials from Ministry of Trade and Industry promised to implement a certain plan of action in the near future, which includes education and training of the public on procedures of applying for liquor licences and the compliance with the law.They will also strengthen consultations with local, regional and traditional leaders in an attempt to define the roles and responsibilities of each of these authorities involved in the issuance of liquor licences.However, not all of these will ever work unless the whole consultation is meant to effect amendment of the law.It does not make any meaningful effect to consult and give training to various stakeholders while the major causality of the whole issue, which is impassable requirements of the Act and procedures to apply for licences, remains intact.There are two major issues to consider here: First, the shebeens in Namibia are in two major categories: the category of shebeens in rural or informal settlements, and second, the category of shebeens in urban areas or formal structures.The shebeens in rural areas or informal settlements could not be perceived from the profit-making angle only, but they have two main purposes in society: First they are one of the major sources of income, and second, they are one of the important places where members of communities spend time together socially, especially in afternoons.Therefore, it is essential to advise that what the Ministry should do is not to train but to consult on how to amend the Act, with the aim of finding a workable balance between the socio-economic reality of the majority of the shebeen owners, and developmental and public health considerations.Hence, they could identify the areas of development and capacity building by way of training and through holding workshops.*The author of this opinion piece, Andrew Niikondo, is Lecturer and HOD Public Management at the Polytechnic of Namibia (Namibia’s University of Science and Technology)At present, shebeen traders countrywide have shown non-compliance with the implementation of the Act.The people continue demonstrating against the implementation of the Act and the Government action is received with conflicting feelings in the society.Some sections of society support the Government while the shebeen traders believe that the law has deprived them of their rights.To them the shebeens are their major source of income.There were also some clashes between the Police and the demonstrators in various places countrywide.Many people question the implementation of the Liquor Act, which according to them would send the majority of people into poverty and a hopeless life.Some people, especially spiritual communities, hailed the implementation, which they believe would rid the nation of the chronic misuse of liquor which often results in committing crimes in society.Now the judgment is uncertain: Who is right and who is wrong in this situation? Some people went to the extent to blame the President, the Parliament and big business as being the agitators behind this Act to push the poor shebeen owners out of business.It is understood that the problem concerning implementation of this Act started some time ago.Although the Act was passed in 1998, it was implemented in 2002 with certain reservations from various stakeholders.Seemingly, the recent demonstrations were not the first of this kind in the history of the implementation of this Act.In 2004 The Namibian reported that close to 110 shebeen owners in Karasburg’s Westerkim residential area were set to lock horns with the town council.In 2005, the Namibian Economist also reported defiance of the shebeen owners to the Windhoek Municipal ordinances geared to regulate the shebeen trade in the City.In 2001 Nepru also warned that the Government’s Liquor Act which seeks to regulate the sale of liquor would not be implemented effectively, owing to some of the conditions set for bar and shebeen owners.”It will not be practical for most of these entrepreneurs to adhere to all the conditions, as their income may not be sufficient to accommodate the additional expenses required to erect the structures required,” Nepru says.Given these implications, it is imperative to analyse the objectives and requirements vis-à-vis the actual life of communities.Objectives of the Act In 1998, the Namibian Parliament passed the Liquor Act (Act No 6 of 1998) based on the following objectives: “Replace the three previous Liquor Licensing regimes (Ordinance 2 of 1969, Proclamation 205 of 1968 and Ovambo Liquor Enactment of 1973) with a single uniform law; eliminate colonial anachronism from the law; decentralise the licensing systems of liquor outlets; reduce and simplify the administrative procedures of the liquor law; ameliorate shebeen problems and to try bring unlicenced ‘cuca shops’ under licence control, in order to curtail the current situation of an illegal sector operating alongside a legal sector; and address the problem of alcoholism, in so far as this problem can be handled or helped by legislation.”Looking at the objectives of the Liquor Act, one would also develop the concern as to whether this Act was meant to enable efforts of small business enterprises or was meant to increase Government revenue only.The general perspective may mean that control of cuca shops by law is not clear here, apart from where it states that: “No person shall be granted an application for, or hold any licence, authority or certificate or act as a manager, if such a person: Is not a Namibian citizen or not lawfully admitted for permanent residence to, and resident in, Namibia.Is an unrehabilitated insolvent.Is under the age of 21 years.Has either in Namibia or elsewhere during the preceding five years under any law been convicted of an offence relating to: The selling or supplying of liquor to any person not entitled to purchase or receive such liquor.The selling, dealing in, or disposing of liquor without the licence required for such sale, dealing in, or disposal.”This indicates that the Act would not be effective in controlling alcoholism as appears in the objectives because it allows that the holder of a shebeen licence may sell liquor: “On any day, excluding a Sunday from 10h00 to 24h00.On Sunday, from 10h00 to 14h30 and from 18h00 to 24h00.”This stipulation may raise another concern that if the shebeens are allowed to open from 10h00 to 24h00 during working days then its effect on alcohol control is questionable.In addition, to issue licences to shebeen owners is in itself not a surety that alcoholism is under control.No argument is convincing that the negative effect of alcohol consumed at a licenced shebeen differs from the one consumed at an unlicenced premises.Given this argument, it would make sense to critique the objectives of the Liquor Act.It implies that the Act was not really meant to control alcoholism but to increase Government revenue.This reality is evident in stern requirements which the applicants could hardly meet.Requirements as serious implication Analytically, the current requirements derived from the Act are critical, and could not be met unless the Act is amended or compromised.It is worthwhile to have a look at some few as follows: “Location and usage of a proposed shebeen shall conform to the planning regulations applicable to the area concerned and to conditions laid down by the Regional Liquor Licencing Committee.”This requirement is questionable because it is not yet clear whether all regions have a Regional Liquor Licencing Committee up to now.Had the regions had these committees, the situation would not have exploded to an extent of current anarchy.At present, it is late to create these committees in the middle of current confrontations, because the angry shebeen owners would not accept them.”If a shebeen is attached to a dwelling or sleeping place.The shebeen must be separated from the dwelling or sleeping place by means of walls.”This requirement is implicated, because most shebeens in informal settlements and rural areas are in the form of shacks constructed in corrugated iron sheets only and in rural areas people use branches of trees or traditional huts as shebeen structures.Therefore, the requirement of walls is already a complication if not an impediment to deter poor shebeen owners who do not have money to make walls.The Act is silent in that scenario.Hence, if the law is silent the implementation thereof by the law enforcement agencies could also be difficult.The people would feel threatened because they have no money to buy cement or bricks for making walls.On the other hand, if the law enforcement agencies and authorities would let the people use branches as an alternative to construction materials, then the law is compromised and taken for granted.”The shebeen licence holder shall provide a sink or hand wash basin with running water that may be used by customers to wash their hands.”This requirement is also above the capacity of the shebeen owners in rural areas where running water is not available or is too scarce.On the other hand, you should not make alternative provision without amending the law, for example, by allowing the shebeen owners to just provide still water to their customers, since that is not what the law says.”The floor of the premises shall be constructed with a smooth finish capable of being properly cleansed.”This requirement is also not easy to tackle if the interpreter thinks of himself in the place of the poor shebeen owners.It is unlikely that a poor shebeen owner whose shebeen roof is a hut and its floor is sand could be a smooth finish at all.”The shebeen licence holder shall also provide servicing counters and seating accommodation for customers.There shall be sufficient suitable refuse receptacles on the premises.”These requirements cannot be practical in informal shebeens found in informal settlements and rural areas.As alluded to earlier, the major problem lies with the shebeen owners in rural areas and informal settlements where the people are too poor to buy material and to provide the facilities as required by this Act.Looking at the requirements above, it appears that the law is not clear in its attempt to define the concept of “shebeen”.It seems that the shebeens constructed in the form of huts and corrugated iron sheets could not fit in the current definition as given in the Liquor Act.The paradox is that the shebeens in rural or informal premises cannot meet the requirements provided in the law and the decision of the Government to close them, results in chaos, as is the case now.From economic perspectives, the implementation of the Act also gives negative signals.Since the requirements and procedures to obtain licences remain stringent, the Government is likely to lose a lot of money in many ways.For example, first, resources would be used in apprehending those shebeen owners who would become illegal dealers as a result of being unable to meet the requirements.Second, revenues levied from the Namibia Brewery products would also drop dramatically because the demand is expected to go down.Third, another fear is that, since the majority of the victims of the implementation of this Act are women, we cannot preempt the possibility of these people to even take sex work as an alternative way of survival.If this happens then the battle against HIV/AIDS is lost and the burden will fall on the shoulders of the Government. Culprits in the public eye It appears that the implementation of the Act reflects differently in the public eye.This could be attributed to different understanding of individuals in communities, vis-à-vis political, social and economic consequences.Laypersons relate the implementation of this law to the reign of the current President.This implies that most people are of the belief that it is the new President’s law and hence he should change it.In similar vein, the political parties, especially the opposition, have also seen it as a viable opportunity to campaign for political gains.However, the truth is that the Liquor Act is not President Pohamba’s Act and he does not have the power to change it either.This is in line with the fact that, “no one in Namibia is above the law”.In Namibia, the procedure to create or amend a law is roughly as follows: First the problematic situation should be identified, second, a white paper should be prepared and submitted to the Cabinet, third, the Cabinet should consider it in order to become a Bill, fourth, it should be tabled in the National Assembly for debate and reviewed in the National Council, fifth, it should be given to the Judiciary for scrutiny.In some instances, the bill is taken to the general public for input.If all these stakeholders are satisfied the bill should be taken to the President for signature and becomes what we call a law.In the case of the Liquor Act, the Parliament passed it in 1998 and the whole procedure was followed except consultation with the general public.The political parties who are currently blaming the Government were all present in the two houses of Parliament when the law was passed and they failed to influence the decision.Therefore, it should be noted that neither the former President, nor the current President should be blamed for flaws in the law, since the law was passed via a legally stipulated process.If this law is to be amended, the same procedure should be followed and no individual person, not even the President, should amend it.This is what the people should have been told.Where does the confusion lie? The reality is that the confusion is between the Ministry of Trade and Industry, the Police, traditional authorities and the shebeen owners.The Police do not accept the licences issued by the traditional authorities, which the shebeen owners have, and the Police demand the compliance with the requirements of the Act.The traditional authorities perceive the implementation of the Act as a threat to their authority because they are now deprived of their power to issue the licences, as was previously the practice.However, this brings us to note that all demands and proposals made by the cuca shop owners, the Police and the Ministry of Trade and Industry will be fruitless if the law is not amended.The shebeen owners, especially, demand proper explanation of the Act, enough local offices where people could apply for licences and the simplification of the process and procedures, which to them are currently too long and complicated.On the other hand, the Police promised to hold information meetings with the communities to discuss the implementation of the Act.Meanwhile, senior officials from Ministry of Trade and Industry promised to implement a certain plan of action in the near future, which includes education and training of the public on procedures of applying for liquor licences and the compliance with the law.They will also strengthen consultations with local, regional and traditional leaders in an attempt to define the roles and responsibilities of each of these authorities involved in the issuance of liquor licences.However, not all of these will ever work unless the whole consultation is meant to effect amendment of the law.It does not make any meaningful effect to consult and give training to various stakeholders while the major causality of the whole issue, which is impassable requirements of the Act and procedures to apply for licences, remains intact.There are two major issues to consider here: First, the shebeens in Namibia are in two major categories: the category of shebeens in rural or informal settlements, and second, the category of shebeens in urban areas or formal structures.The shebeens in rural areas or informal settlements could not be perceived from the profit-making angle only, but they have two main purposes in society: First they are one of the major sources of income, and second, they are one of the important places where members of communities spend time together socially, especially in afternoons.Therefore, it is essential to advise that what the Ministry should do is not to train but to consult on how to amend the Act, with the aim of finding a workable balance between the socio-economic reality of the majority of the shebeen owners, and developmental and public health considerations.Hence, they could identify the areas of development and capacity building by way of training and through holding workshops.*The author of this opinion piece, Andrew Niikondo, is Lecturer and HOD Public Management at the Polytechnic of Namibia (Namibia’s University of Science and Technology)