Monograph 56: Organised Crime in Southern Africa Assessing Legislation, Edited by Charles Goredema

Most of the countries in Southern Africa share the concern about the problem of organised crime. Consequently, 11 of the 14 member states comprising the Southern African Development Community (SADC) signed the Convention at Palermo. More than six months after its signature, it is clear that not every signatory state is ready to ratify the Convention. Harmonisation of institutional arrangements and the updating of legislation must precede ratification, since these actions signify competence to implement the prescribed obligations. Implementing the Convention can only occur if suitable domestic laws have been introduced, and the necessary administrative mechanisms have been activated. Those measures that have been adopted must then be submitted to the Secretary-General of the UN.

The required reforms are bound to have certain policy and legislative implications across the region. This monograph is an attempt to contribute to the assessment of the prevailing legislative infrastructure in some of the signatory countries. The various contributions provide a comparative overview of the relevant statutes in Angola, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Tanzania and Zimbabwe. Contributors assembled at a seminar in Pretoria at the end of February 2001 to deliberate on the legal implications of the Palermo Convention for Southern Africa.

The South African Minister for Safety and Security, Mr Steve Tshwete, opened the seminar, cautioning against complacency in the face of the threat of organised crime (see chapter 1). He expressed his government’s readiness to play a role in cementing a regional response to organised crime in all its forms, and outlined what South Africa had already achieved at a local level. Contrary to the misconception that crime syndicates operate outside or parallel to the formal sectors of society, Minister Tshwete advised that organised crime is constantly trying to penetrate them.

Frank Msutu, who straddles Interpol’s subregional bureau and the Southern Africa Regional Police Chiefs Co-operation Organisation (SARPCCO) portrays the nature and magnitude of the threat that organised crime represents to the region (see chapter 2). He also outlines the trends in its growth, and the operational responses that it has provoked.

In chapter 3, Charles Goredema surveys the legislation in South Africa, Swaziland and Zimbabwe from the standpoint of the Palermo Convention. He evaluates the adequacy of the legislation, in terms of substantive content and enforcement mechanisms, and highlights changes needed if these countries are to comply with the Convention. He also argues for a co-ordinated approach towards the issues of corruption, money-laundering and witness protection.

Jai Banda, who practices law in Malawi, considers the legislative responses to organised crime in the country (see chapter 4). Criminal syndicates in Malawi do not conform to the traditional Mafia model, with their reputed hierarchies of governance and enterprise management. Rather, a multiplicity of loose, less formal units, whose membership is often fluid or transient, are active in the country. He examines the laws in place to deal with their activities, and argues that more can be enacted and penalties in the existing statutes should be raised. He also contends that the investigative capacity of law enforcement agencies leaves a lot to be desired.

Of all the SADC countries, Tanzania has the longest enduring laws dedicated to combating organised crime. The flagship Economic and Organised Crime Act dates back to 1984. The Proceeds of Crime Act, which deals with money-laundering, was passed in 1991. Professor Chris Maina Peter undertakes a comprehensive analysis of these laws in chapter 5. He highlights several deficiencies, especially in relation to the monitoring of suspicious transactions often associated with money-laundering. While the text of the law might be sound, the auxiliary infrastructure, some of which should be part of the law itself, is non-existent.

Namibia may not have a statute dedicated to combating organised crime in general, or money-laundering by syndicates, but it has a range of legislative instruments that give the authorities the necessary capacity. Ray Goba assesses the laws in Namibia against the background of the incidence of organised crime in the country (see chapter 6). It is evident that much transnational organised crime involving Namibians and nationals from neighbouring countries has occurred in Namibia in recent times. Goba laments the absence of simplified extradition arrangements with neighbouring countries, particularly with South Africa. Ironically, Namibia has the most liberal extradition regime of all SADC countries. In the sphere of money-laundering control, Namibia has put in place an administrative system centred on the Bank of Namibia, in terms of which transactions raising suspicion of illegal activity have to be reported. Goba notes that the system seems to work erratically.

In chapter 7, Sakoane Peter Sakoane undertakes an interesting, thematic analysis of the existing and impending legislation in Lesotho. He identifies various objectives and assumptions that influence this country’s laws. The belief that organised crime has a strong financial motivation underlies virtually all these laws. In consequence, emphasis is placed on the identification, seizure and forfeiture of illicitly acquired assets. Recent legislation against corruption seeks to impose a duty to explain wealth obtained in ‘unorthodox’ ways, in the hope of catching the corrupt. Theft of stock and motor vehicles are two of the most problematic crimes in Lesotho. Both tend to be linked, or to lead to other organised crimes like murder and the smuggling of firearms. Sakoane outlines the strategy adopted in respect of both, which is to put pressure on the receivers of stolen stock or vehicles to verify the authenticity of the transferor’s title, presumably on the understanding that it is easier to locate the receivers than the thieves. Finally Sakoane highlights a challenge that is common to the entire region — the scarcity of resources. On account of it, Lesotho’s Prevention of Corruption and Economic Offences Act (1999) has yet to be implemented. The Anti-Money Laundering Bill, which is under consideration by government, is likely to face a similar predicament.

The assassination of well-known investigative journalist, Carlos Cardoso in Maputo, virtually on the eve of the signing of the Palermo Convention, illustrated the lengths to which crime syndicates in Mozambique were prepared to go to evade the law. For the region, it underscored the urgency of acting against crime syndicates before they grow more powerful. Ã…ngelo Matusse outlines Mozambique’s law relating to serious crime (see chapter 8). His contribution shows that there is no lack of applicable legislation to deal with criminal activities, but that the structures for its enforcement are vulnerable to corruption.

Angola does not have laws dedicated to organised crime. Astrigildo Culolo identifies what laws could be passed for this purpose, but argues that the prospects of this happening while the civil war rages in the country are dim (see chapter 9). There can be no doubt that the country needs such laws. Much corruption, associated with the diamond, arms and oil industries, has been reported.

In the concluding chapter, Charles Goredema considers the prospects of harmonising the laws of Southern African countries, in view of the realities that might intervene. The challenges arise from the economic and political context in which reforms have to occur. He derives hope that SADC countries will ratify the Palermo Convention from the fact that so many of them signed in December, as well as the relatively small disparities between their laws and the requirements of the Convention in many areas. In addition, there is likely to be much pressure from financially influential regional groupings, such as the Financial Action Task Force.