The face of people smugglers might not be the one you had imagined. Congolese woman, Abigail Bashala, 53, convicted on three counts related to smuggling people into Namibia, has just been sentenced for her crime. Photographs in the media make her seem like someone’s granny. And she told the high court in Windhoek about her diabetes and her pacemaker, about trying to raise fees for her university student son, about her unemployed husband who has cancer, the two grandchildren with whom she lives, and the property in Congo that she rents out to sustain herself and her family.
Bashala was charged under the Organised Crime Act for smuggling immigrants. Initially she faced 15 counts of migrant smuggling, but the end of her trial, the court convicted her on just three. They all related to incidents in which she had helped smuggle three Congolese nationals into Namibia.
Evidence heard by the high court judge who presided in the matter, Dinnah Usiku, came from a number of people who had met Bashala in the course of trying to get into Namibia. Some of them said they were given to believe that she was a ‘genuine agent’ of the UN High Commission for Refugees. They were even shown a photograph of her wearing a gown like that used in court by lawyers, grouped with some police officers in uniform, who were said to have been her bodyguards. The court also heard that she worked with someone the immigrants knew as ‘Pastor David’.
According to some of the evidence, Bashala asked for money from immigrants to help them get to Canada, but that nothing ever came of it.
Much of the evidence heard in the case related to people from African countries where they had experienced war or other forms of violence and wanted to escape to start a new, safer life.
Judge Usiku said that according to evidence by the state, Bashala demanded payments from a family of three would-be immigrants after an agreement was reached between them that she would facilitate their travel to Canada. Though Bashala denied receiving money from the complainants, the state had established that she constantly received funds through Money Gram at Standard Bank, Otjiwarongo. It was always for differing amounts and was in US dollars. The judge found that the money was clearly not rental from Bashala’s houses in Congo as she claimed.
The judge commented that crimes of immigrant smuggling involved syndicates who worked in a manner that ensured people were not easily traceable. ‘It is therefore usually very difficult to detect.’
She said that Bashala’s defence was ‘a mere denial’ which couldn’t be reasonably true, and thus was to be rejected. Bashala was therefore convicted of three counts of migrant smuggling.
When the court considered sentence a month later, it heard evidence in aggravation of sentence from an employee of the home affairs ministry who said entry and exit to Namibia had to be controlled to ensure public safety and security and to ‘prevent unwanted diseases amongst travellers’.
The witness said offences related to smuggling of immigrants were serious because this undermined national security and could ‘expose the country to diseases’. Namibia was struggling with the issue of illegal immigrants at border posts. Some illegal immigrants were motivated by economic considerations. Others were ‘running away from conflicts to obtain better living conditions.’ Yet others were looking for asylum ‘due to political persecution, such as those from the Democratic Republic of Congo.’
Yet others ‘could be criminals’, using ungazetted border posts, he said.
Bashala testified in mitigation for herself, saying she acknowledged her guilt, despite having originally denied smuggling anyone, and that she now pleaded for forgiveness. She said she was the mother of seven children, five of whom had died. The last two were living in Namibia and were adults.
She said she received money from Congo for property she rented out, and she and her family depended on this income.
Bashala expanded on her several illnesses and asked the court to give her a second chance, saying that if the three victims had been at court, ‘she would have personally asked them for forgiveness’.
Judge Usiku said the UN Convention against transnational organised crime and the Protocol against the smuggling of migrants by land, sea and air, to which Namibia was a party, had as their main purpose ‘to prevent and combat the smuggling of migrants’.
It was now agreed by all parties to the case that the victims in this matter were running away from their country because of war. ‘They were vulnerable and desperate to find safety and security. That to my mind is a fact which aggravates and contributes towards the seriousness of the crimes and the consequent punishment thereof.’
The court accepted that Bashala suffered from ill health and needed medical care.
‘However, ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health.’
It was generally accepted that illness would be a factor that could mitigate punishment, but this only happened where there was a serious risk that imprisonment would gravely affect the offender’s health.
The victims in this case had been exposed to danger when they had to travel by canoe across the Zambezi River to reach Namibia. ‘The whole process was planned by the accused through her associates who to date have not been traced…. This was a clear syndicate involving different persons among different countries.’
Bashala, though having been a refugee herself, ‘took advantage of her victims who were desperate to find peace after leaving their war-stricken country.’
Despite her ill-health, Basha had engaged in these criminal activities, not just once but on several occasions. ‘As a result, her victims suffered financial loss due to [her] conduct, and to date she has made no effort whatsoever to compensate them for their losses.’
She had urged a suspended sentence, but it would not be appropriate in this case, said Judge Usiku, who imposed three years in relation to each of the three convictions, with all three to run concurrently.