Corruption crackdown must ensure suspects’ basic rights – judge
Publish date: 13 March 2018
Issue Number: 96
Diary: A Matter of Justice
Category: A Matter of Justice
However strongly you are opposed to corruption and the unlawful harvesting of a country’s timber, you can hardly fail to be convinced that Namibia’s High Court Judge Thomas Masuku made the right call in a recent case: he found that the country’s anti-corruption commission acted unlawfully and violated fundamental rights in confiscating trucks and their timber loads and had to give them back.
On the face of it, and judging from the nature of the application, you might anticipate a dry, even boring, decision. But this is Masuku we are talking about, and you would be wrong. The case was brought by New Force Logistics, a transport and logistics outfit, against Namibia’s anti-corruption commission. New Force may or may not have been acting corruptly – the court makes no finding on this – but readers from SA, where we have long been desperate for tough anti-corruption action, might be inclined to make assumptions about the commission and the propriety of its work. And again, we would be wrong.
In a nutshell, commission officials seized the New Force property ‘at the turn of the New Year’ as Masuku puts it in his distinctive, quirky style. Claiming officials had reasonable suspicion that acts of corruption were involved, the commission conceded that the seizures were carried out without a warrant.
A month later, in the High Court, Windhoek, New Force argued an application for the immediate return of the trucks and timber consignment, saying they were unlawfully impounded. The company had about 150 outstanding deliveries that it could not service, and it could not afford to hire alternative transport while its own trucks were out of action, said New Force.
In response the commission denied any unlawfulness. The law said the commission could carry out a search and seizure operation without a warrant if the authorised officer had reasonable grounds to believe that a warrant would normally be issued in the case, and that it would defeat the object of the search if they had to wait for a warrant to be issued.
The commission’s head of investigations filed an affidavit opposing the New Force application and spelling out the background to the search and seizure operation. He said in the commission’s view, New Force was contravening sections of the Forestry Act and the timber seized was part of an investigation into corruption allegations.
But the judge was concerned about the fact that the person who authorised and justified the warrantless search was not at the scene. He said it was ‘crucial and critical’ that the state of mind of the person who actually searched, seized and attached property without a warrant ‘is laid bare for the court to assess’.
‘I say so (because the acts of search and seizure) negate certain fundamental rights.’ The commission’s officers are required by law to ‘disclose to the court what considerations led them to conclude that there was indeed a reasonable suspicion of (an offence being committed) and the reasons why, in their peculiar circumstances, they did not find it necessary or feasible to obtain a warrant.’
If that was not done, it was the end of the matter. No-one, not even the commissioner, could properly depose to the state of mind of an officer on the ground who has taken steps that effectively violated some constitutionally protected rights. As to what considerations that person took into account, and the peculiar circumstances that informed the decision to search, arrest, seize and attach, it must come directly from the mouth of the officer involved, and not some other person ‘writing from the serenity and comfort of his office’. Not even a confirmatory affidavit from the officer on the ground could cure this defect especially where, as in this case, the affidavit simply confirms another affidavit without giving the particular information that caused him to act without a warrant. ‘Only one person can do so and it is the one at the coalface of the illegal activity alleged.’
The judge added that the commission had to show that it acted ‘in full conformity with the law’, since their actions infringed the rights of the other party. In addition, the anti-corruption law stipulated that commission officials involved in a search and seizure operation had to advise the people they were searching that they had the right to legal assistance, and then they had to allow the exercise of that right. In the New Force search, no-one was advised of this right, and no-one was allowed to exercise it. No receipts were given for the documents seized nor were they returned as soon as possible, as the law required.
He said it would be a sad day if the courts, because of the ‘undeniable need to arrest the ubiquitous incidence of serious crime, including corruption, (closed) their eyes to constitutional safeguards, thus sacrificing the rule of law and individual rights and freedoms guaranteed in the constitution … on the altar of bringing suspects to book, by hook or by crook.’ The court had to ‘hold the middle ground’, he said, and should not be ‘party to a law-breaking enterprise’, even if it is perceived, ‘in religious, political or social circles’, to be for the common good.
The judge ordered that the seized property of New Force had to be returned immediately, and that the commission pay costs.
Among Masuku’s distinctive, quirky comments in this judgment, there were many stand-outs, but consider this one, in response to the commission’s claim that there had been no ‘search’ when they impounded the property of New Force.
Timber was found in the containers, the judge pointed out, timber allegedly obtained in contravention of the forestry and anti-corruption laws. ‘The million-dollar question is: how did the (commission) find this property that was otherwise securely kept in the containers if they did not conduct a search of the contents of the bowels of the containers…? Did these items … miraculously fall out of the vehicles due to an Act of God, the (commission’s) delight and simultaneously to the chagrin (of New Force)? I think not! As they normally say, if it walks like a duck, quacks like a duck, then it is indeed a duck! From all indications, the procedure followed had all the hallmarks of a search and so a search it was.’