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Stock theft sentences ruled unconstitutional

11 March 2011
By: Werner Menges

THE heavy prison terms that the Stock Theft Act prescribed for people convicted of stealing livestock after the law was changed in 2004 were declared unconstitutional in a judgement of the High Court yesterday.

Six years and close to three months after the Stock Theft Amendment Act of 2004 introduced severe prescribed prison sentences into Namibia’s Stock Theft Act of 1990, most of these sentences have now been found unconstitutional and invalid.
The judgement in which the two heaviest sentences that are prescribed in the Stock Theft Act were ordered to be struck from the Act was handed down in the High Court in Windhoek yesterday afternoon.
“The conclusion is inescapable that the minimum sentencing regime created by section 14 of the Stock Theft Act has simply set the levels of deterrence beyond what is fair and just to those caught up in it,” Acting Judge Harald Geier, who wrote the court’s decision, remarked in the judgement.
Judge Kato van Niekerk agreed with the judgement.
The court ordered that the minimum sentence of 20 years’ imprisonment that the law prescribes for stock thieves convicted of stealing livestock valued at more than N$500, and also the minimum prescribed jail term of 30 years stipulated for stock thieves who had also been convicted of stock theft previously, are struck from the Stock Theft Act.
This however leaves intact the Act’s prescription of a mandatory prison sentence for both anyone convicted of stealing livestock valued at more than N$500 and a stock thief who is a repeat offender. As a result, courts dealing with livestock thieves will from now on still have to send the offenders to prison, but can now decide for themselves what an appropriate jail term would be in each case.
In appropriate cases “very lengthy periods of imprisonment” may still be imposed for stock theft, Acting Judge Geier commented in his judgement.
The judgement also does not affect the penalty of a minimum prison term of two years for any first-time livestock thief convicted of stealing stock valued at less than N$500 that is also included in the law.
The constitutionality of the Act was challenged by two men who were sent to prison for a combined 50 years over the theft of one head of cattle and nine goats.
A resident of northern Namibia, Protasius Daniel, was a first-time offender when he was sentenced to the prescribed term of 20 years’ imprisonment in November 2007, after he had admitted that he was guilty of stealing nine goats, valued at N$4 450, in the Ondangwa district earlier that month.
A resident of Outjo, Willem Peter, was a repeat offender when he was again found guilty on a stock theft charge in the High Court in 2009. He was convicted of stealing one cow, valued at N$3 200, which had been shot during a poaching excursion at a farm between Outjo and Kamanjab in December 2006.
On December 8 2009, Peter was given the minimum sentence of 30 years’ imprisonment that the Stock Theft Act prescribed for repeat offenders, after the court found there were no substantial and compelling circumstances present that would warrant a deviation form the prescribed sentence.
In their challenge to the constitutionality of the Act Daniel and Peter argued that the prescribed minimum sentences violate the Constitution’s prohibition of cruel, inhuman or degrading punishment and their right to equality.
They sued the Attorney General, Government and the Prosecutor General in their bid to get the sentences declared unconstitutional.
In his response to the challenge, Attorney General Albert Kawana conceded that the prescribed sentences violate the Constitution’s prohibition of cruel, inhuman or degrading punishment. He also conceded that the prescribed sentences, which do not differentiate between different kinds of livestock or the value of it once it is valued at more than N$500, are “likely to be grossly disproportionate to the offence committed in many instances”.
The Prosecutor General however maintained that the attacked sections of the Act were constitutional.
The court ruled in favour of the argument of senior counsel Wim Trengove, who represented Daniel and Peter, that the prescribed sentences are “grossly disproportionate”, as they unfairly and unjustly punish people who are caught and convicted not because they necessarily deserve the sentences meted out to them but to deter others from committing the same crime.
Trengove and Norman Tjombe represented Daniel and Peter on instructions from the Legal Assistance Centre. The Prosecutor General was represented by George Coleman, while Nixon Marcus represented the Attorney General and Government.

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