(Aug. 9, 2010) The constitutionality of the Namibian Livestock Theft Law, which was amended in 2004 to impose a harsh penalty for livestock theft, is being challenged before the Namibian High Court (High Court Reserves Judgment, NEW ERA (July 27, 2010), http://www.newera.com.na/article.php?articleid=12175). Protasius Daniel and Willem Peter, individuals challenging the Law, were convicted and sentenced to 20 years in prison (for stealing nine goats) and 30 years in prison (for stealing a cow), respectively (Werner Menges, Stock Theft Act Under Attack, THE NAMIBIAN (Jan. 7, 2010), http://www.namibian.com.na/index.php?id=28&tx_ttnews[tt_news]=63263&
A first time offense of livestock theft in Namibia, other than theft of poultry worth less than NAD$500 (about US$69), carries a mandatory minimum sentence of two years of imprisonment (Stock Theft Amendment Act No. 19 of 2004, §2, GOVERNMENT GAZETTE OF THE REPUBLIC OF NAMIBIA, No. 3351 (Dec. 20, 2004), http://www.parliament.gov.na/acts_documents/219_act_19_of_2004.pdf). If the livestock is worth more than that amount, the minimum penalty goes up dramatically to 20 years (id.). If the offender has a previous conviction for a similar offense, the minimum penalty increases to 30 years (id.). The Law does, however, allow courts to impose lesser sentences when “substantial and compelling circumstances” exist (id.).
By way of comparison, an offense of the most serious form of rape carries a mandatory minimum penalty of 15 years of imprisonment (Combating of Rape Act, No. 8 of 2000, §3, Namibia Legal Assistance Centre website, http://www.lac.org.na/laws/pdf/comrape.pdf). For the offense of corruption, the relevant law sets a cap on the maximum prison term that may be imposed as a penalty of 25 years and creates an option for the imposition of a fine in lieu of a prison term (Anti-Corruption Act No. 8 of 2003, §49, GOVERNMENT GAZETTE OF THE REPUBLIC OF NAMIBIA, No. 3037 (Aug. 4, 2003), http://www.parliament.gov.na/acts_documents/42_act_8anticorrup.pdf).
The position of the Namibian government on the constitutionality of the Livestock Theft Law appears to be inconsistent. While the Attorney General formally recognized the unconstitutionality of the law, the Office of Prosecutor General insists on its validity (Werner Menges, Government Concedes Defeat on Stock Theft Act Sentences, THE NAMIBIAN (July 27, 2010), http://allafrica.com/stories/201007270011.html). George Coleman, the attorney representing the Prosecutor General, pointing to the fact that the Law gives judges latitude in sentencing under the “substantial and compelling circumstances” clause, argued that the law is constitutional and that the court should respect the legislative jurisdiction of the Namibian Parliament (id.).
Livestock are the primary source of income in Namibia, especially in the rural areas, and livestock theft, which has become common in the country, deprives farmers of one of their most important sources of income (Fighting Livestock Theft — And Winning (Aug. 17, 2009), US-AID website, http://www.usaid.gov/stories/namibia/cs_nm_stocktheft.html).