Namibia’s watchdog Anti-Corruption Commission (ACC) is in a great deal of trouble: a major bribery and fraud case, begun in 2009, appears to be imploding. Ten years after the scandal first broke that a member of the Public Service Commission, guardian of ethical conduct in the civil service, had been arrested and charged with two others in connection with massive corruption, the High Court has dealt what might be a crippling blow to the prosecution. Judge Christie Liebenberg has found that because the ACC did not follow correct procedures its summonses issued to several banks were invalid. All the evidence against the accused from the banks was thus unlawfully obtained and inadmissible in court. Though an appeal has since been noted, the prospects of a successful prosecution seem increasingly bleak at this stage, particularly since this is not the first time the courts have knocked out evidence due to be heard in the trial on the grounds that it was improperly obtained.
For a country with a dedicated Anti-Corruption Commission (ACC) as well as legislation and regulations to go along with it, Namibia is having a singularly difficult time prosecuting major corruption.
Take the matter of Teckla Lameck and her two co-accused, out on bail in connection with what is alleged to be massive fraud, bribery and corruption activities. I have counted at least 10 full court judgments in relation to this matter, starting in 2009. That does not include court decisions relating to attempted bank action on loans made to Lameck and her husband. But despite all this judicial effort the criminal case against Lameck and her two co-accused seems to be going nowhere fast – an impression shored up by the latest court decision and the appeal filed immediately afterwards by the prosecution.
That decision, delivered late January, was on an issue raised during a trial-within-a-trial. The presiding judge, Christie Liebenberg, found that the commission acted beyond its powers when it issued summonses to facilitate access to bank statements of the accused.
As a consequence, all the evidence obtained via those summonses has been disallowed. Since 2009, the prosecution has been waiting for the opportunity to present the evidence it obtained from those bank statements, and it obviously regards that evidence as crucial to any successful trial.
In his decision Liebenberg pointed to fatal flaws: the ACC was only allowed to issue a summons when an investigation had first pointed to the need to obtain information this way. Yet in the Lameck case, the summonses had been issued a long time before the confirmatory affidavit that an existing investigation warranted the summonses.
There were other problems. The summonses had been issued under the wrong section, for example. They should have been issued under the section that allowed access to accounts at financial institutions but this section was not used. Thus, the ACC official who approached the banks with the summonses had no mandate to access the bank accounts and acted beyond his powers in doing so.
‘The net effect of the ACC’s initiation of procedure not prescribed by law (was that it) exceeded its jurisdiction’ and thus ‘unlawfully came into possession of evidential material it now seeks to produce against the very same persons whose fundamental rights have been infringed’.
The judge laid it on the line: Proper procedures were not followed and the evidence obtained was thus ‘unlawful’.
‘To allow evidence that was unlawfully obtained … would result in a gross violation of the accused persons’ fundamental rights to privacy and a fair trial, guaranteed under the Constitution.’
Castigating the ACC further, he said such conduct by the commission ‘must be discouraged in the strongest of terms as the courts cannot allow persons or institutions to be subjected to an abuse of power’.
‘Although the ACC fulfils an important function in society with its main purpose to fight the seemingly unending scourge of corruption …, the commission must be reminded that it is also subject to the Constitution and the law’.
This is not the first blow to evidence the ACC intended to lead at the trial. In 2018, the High Court found that search warrants issued by the commission were also invalid and evidence obtained in terms of these warrants would be inadmissible. It is thus not surprising that, almost immediately after the latest judgment, the prosecution gave notice of appeal.
The implosion of the ACC’s case must be a serious set-back for the prosecution of such crimes in Namibia generally. It had been expected to produce important evidence of corruption and fraud in high places, allegedly involving ranking politicians as well as civil servants and business people.
Accused No 1, Teckla Lameck, for example, was a member of the Public Service Commission from 1997. One of the tasks of the PSC, ironically enough, was to ‘ensure ethical standards within the public service’ and to act as a check on possible abuse by way of corruption and nepotism. The charges faced by Lameck and her two co-accused relate to sophisticated scanning machines that would have been used at the airport and elsewhere.
Specially ordered from China, the machines appear to have earned Lameck ‘commission’ of more than R42m. Among those about whom questions are being asked are the personal assistant of former Namibian President, Sam Nujoma: why and how did some of the ‘commission’ end up in his account?
Of considerable international interest would have been the role played by Hu Haifeng, the son of the former President of China, Hu Jintao. At the start of the ACC investigation, Hu Haifeng was the president of Nuctech, the Chinese company from which Namibia had ordered the scanning machines. The Telegraph quoted the director of the ACC, Paulus Noah, as saying he would like to question Hu Haifeng and that the trial had the potential to be a huge embarrassment for Hu Jintao. This was because corruption had become an explosive issue in China and some officials had even been executed after conviction. Until that point, however, ‘publicised cases have tended to involve local and provincial figures, rather than national ones’.
After the latest judicial decision, however, these questions may never be asked in court, let alone answered.
- Appeared in Legalbrief, 5 February 2019