(Entery into force on 4, August 2003)
To establish the Anti-Corruption Commission and provide for its functions; to provide for the prevention and punishment of corruption; and to make provision for matters connected therewith.
Chapter 1 Preliminary
1. In this Act, unless the context indicates otherwise –
“authorised officer” means –
(a) the Director;
(b) the Deputy Director;
(c) an investigating officer appointed under section 13: or
(d) a special investigator appointed under section 14;
“Commission” means the Anti-Corruption Commission established by section 2;
“corrupt practice” means any conduct contemplated in Chapter 4;
“Director” means the Director of the Commission appointed under section 4, and includes a person temporarily acting as Director under this Act;
“Deputy Director” means the Deputy Director of the Commission appointed under section
Chapter 2 Anti-Corruption Commission
2. Establishment of Anti-Corruption Commission
2. (1) There is established an independent and impartial body known as the Anti-Corruption Commission with such powers, functions and duties as are provided for in this Act or any other law.
(2) The Commission consists of –
(a) a Director;
(b) a Deputy Director; and
(c) other staff members.
(3) The Commission is an agency in the Public Service as contemplated in the Public Service Act, 1995 (Act No. 13 of 1995).
(4) The Public Service Act, 1995 applies to the Commission, the Director, the Deputy Director and the other staff members of the Commission, except to the extent as provided otherwise by this Act or as is inconsistent with this Act.
3. Functions of the Commission
3. The functions of the Commission are –
(a) to receive or initiate and investigate allegations of corrupt practices;
(b) to consider whether investigation is needed in relation to an allegation and, if so, whether the investigation must be carried out by the Commission or whether the matter should be referred to any other appropriate authority for investigation or action;
(c) to consult, co-operate and exchange information with appropriate bodies or authorities, including authorities or bodies of other countries that are authorised to conduct inquiries or investigations in relation to corrupt practices;
(d) to assemble evidence obtained in the course of its functions and to furnish –
(i) to any appropriate authority contemplated in paragraph (c); or
(ii) to the prosecuting authority or any other suitable authority of another country, upon a formal request, evidence which may be admissible in the prosecution of a person for a criminal offence or which may otherwise be relevant to the functions of that authority;
(e) to investigate any conduct of a person employed by a public body or private body which in the opinion of the Commission may be connected with or conducive to corrupt practices, and to report thereon to an appropriate authority within the public body or private body;
(f) to take measures for the prevention of corruption in public bodies and private bodies, including measures for –
(i) examining the practices, systems and procedures of public bodies and private bodies to facilitate the discovery of corrupt practices and securing the revision of practices, systems or procedures which may be prone or conducive to corrupt practices;
(ii) advising public bodies and private bodies on ways of preventing corrupt practices and on changes of practices, systems and procedures compatible with the effective performance of their duties and which are necessary to reduce the likelihood of the occurrence of corrupt practices;
(iii) educating the public and disseminating information on the evil and dangers of corruption, including through the publication and distribution of brochures and pamphlets or the holding of public conferences;
(iv) enlisting and fostering public confidence and support in combating corruption;
(g) to disseminate information to the public about the functions of the Commission;
(h) to do anything else that the Commission is required or authorised to do under this Act or any other law or which is necessary or expedient to do for achieving the purpose of this Act.
4. Appointment of Director and Deputy Director
4. (1) The National Assembly appoints the Director and Deputy Director upon nomination by the President.
(2) Notwithstanding the provisions of the Public Service Act, 1995 (Act No. 13 of 1995), the President may nominate for appointment as Director or Deputy Director any person whom the President considers suitable and who –
(a) is of good character and of high integrity; and
(b) possesses knowledge or experience relevant to the functions of the Commission.
5. Disqualified persons
5. A person is not eligible to be appointed as Director or Deputy Director who –
(a) is not a Namibian citizen;
(b) is a member of the National Assembly or National Council;
(c) is a member of a regional council or a local authority council;
(d) is an unrehabilitated insolvent; or
(e) has been convicted of –
(i) theft, fraud, forgery or uttering a forged document, perjury or any other offence involving dishonesty; or
(ii) any other offence for which a sentence of imprisonment without the option of a fine has been imposed, excluding an offence of a political nature committed before the date of Namibia’s independence.
6. Authority card
6. (1) Upon their appointment the Director and the Deputy Director must each be issued with an authority card, signed by the President.
(2) An authority card issued under subsection (1) is prima facie evidence of the appointment of the person concerned.
(3) The Director and Deputy Director must display the authority card to any person in relation to whom they seek to exercise any power or perform any function or duty under this Act.
7. Term of office and conditions of service of Director and Deputy Director
7. (1) The Director and Deputy Director are appointed on a full-time basis for five years and may be reappointed upon expiry of their term of office.
(2) The conditions of service of the Director and Deputy Director are determined by the President with the confirmation of the National Assembly.
(3) The Director and Deputy Director may not –
(a) engage in the day to day management of any business or occupation;
(b) take part in the management of the affairs of any political party; or
(c) be a salaried employee of any person or organisation.
(4) The provisions of the Public Service Act, 1995 (Act No. 13 of 1995) in relation to requirements for appointment, tenure of office, conditions of service suspension and dismissal from office do not apply to the Director and Deputy Director in so far as they are inconsistent with the provisions of this Act.
(5) As soon as practicable after their appointment, and thereafter at such times as the Prime Minister may require, the Director and Deputy Director must each furnish to the Prime Minister a statement setting forth particulars of their assets and liabilities, including the nature and extent of any interest which they may have in any business or occupation or in any company or close corporation.
8. Vacation of office of Director or Deputy Director
8. The office of the Director or Deputy Director becomes vacant if –
(a) he or she resigns from office by written notice to the President;
(b) he or she becomes subject to a disqualification referred to in section 5; or
(c) his or her appointment is terminated under section 9.
9. Termination of appointment of Director or Deputy Director
9. (1) The appointment of the Director or Deputy Director may be terminated if he or she –
(a) has failed to comply with a condition of his or her appointment;
(b) is unable to perform the functions of his or her office by reason of mental or physical infirmity;
(c) fails to perform efficiently the duties of his or her office; or
(d) has been guilty of misconduct.
(2) If the question of termination of the appointment of the Director or the Deputy Director arises, the President must notify the Chief Justice who, after consultation with the Judicial Service Commission established under Article 85 of the Namibian Constitution, must within 30 days appoint a board to inquire into the matter and submit a report and recommendations to the President.
(3) The board must consist of –
(a) a chairperson, being a person who –
(i) held office as judge of the Supreme Court or the High Court of Namibia; or
(ii) is qualified to be appointed as judge of the Supreme Court or the High Court of Namibia; and
(b) two other members who are of good character and integrity.
(4) If the question of termination of the appointment of the Director or Deputy Director is referred to the board, the President may suspend the Director or Deputy Director, as the case may be, from exercising the functions of his or her office pending inquiry by the board, but the suspension lapses if the board recommends to the President that the appointment should not be terminated.
(5) The board must inquire into the matter in accordance with such rules as the board may make conforming to the rules of natural justice.
(6) The board must within 30 days after conclusion of the inquiry submit its report and recommendations to the President.
(7) If the President, on receipt of the board’s report and recommendations, finds that the Director or Deputy Director, as the case may be, should be removed from office, the President must communicate that finding and the reasons therefor by message to the National Assembly within 14 days after the finding if the National Assembly is then in session or, if the National Assembly is not then in session, within 14 days after its next session starts.
(8) The President must remove the Director or Deputy Director from office upon adoption by the National Assembly of a resolution calling for that person’s removal from office.
10. Acting Director
10. (1) If the office of the Director is vacant or the Director is absent from duty or unable for any reason to perform the functions of his or her office the Deputy Director must act as Director, but the President may appoint another person to act temporarily as Director.
(2) If the offices of both the Director and Deputy Director are vacant or if both the Director and Deputy Director are absent or unable for any reason to perform the functions of their offices, the President must appoint another person with appropriate knowledge or experience to act as Director during such vacancy or temporary absence.
(3) A person acting as Director in terms of subsection (1) or (2) may not act for a period of more than six months.
(4) A person appointed as acting Director while the office of the Director is vacant is entitled to the salary attached to that office for the period that he or she so acts.
11. Duties of Director and Deputy Director
11. (1) The Director is the head of the Commission and is responsible for the direction, control and management of the Commission.
(2) The Deputy Director performs the functions conferred by this Act on the Deputy Director or as may be assigned to him or her by the Director.
12. Appointment of other staff members of the Commission
12. The other staff members of the Commission referred to in section 2(2)(c) as may be required for the proper performance of the functions of the Commission are appointed subject to the Public Service Act, 1995 (Act No. 13 of 1995).
13. Investigating officers
13. (1) Among the staff members referred to in section 12 the Director must appoint persons to be investigating officers for the purposes of this Act.
(2) An investigating officer –
(a) has such powers, functions and duties as may be provided for by this Act or as may be delegated or assigned to the investigating officer by the Director; and
(b) must exercise such powers, perform such functions and discharge such duties in compliance with the directions or instructions as may be specified orally or in writing by the Director, the Deputy Director or any other staff member of the Commission superior to him or her in rank.
(3) An authority card must be issued to every staff member appointed as investigating officer in terms of subsection (1), which –
(a) must be signed by the Director; and
(b) is prima facie evidence of the appointment of the person concerned.
(4) An investigating officer must display his or her authority card to any person in relation to whom he or she may seek to exercise any power or perform any function or duty under this Act.
14. Special investigators
14. (1) The Director, with the concurrence of the Prime Minister, may appoint a person who has expert knowledge in a particular field to be a special investigator to investigate an allegation of corrupt practice, or any aspect thereof, specified –
(a) in the instrument appointing the special investigator; or
(b) in a written notice given to the special investigator by the Director.
(2) A special investigator is appointed on a temporary basis as agreed between the Director and the person and must perform his or her functions –
(a) subject to the control and direction of the Director; and
(b) on the terms and conditions as the Director and the special investigator may agree.
(3) An authority card must be issued to a person appointed as special investigator in terms of subsection (1), which –
(a) must be signed by the Director; and
(b) is prima facie evidence of the appointment of the person concerned.
(4) A special investigator must display his or her authority card to any person in relation to whom he or she may seek to exercise any power or perform any function or duty under this Act.
15. Administrative orders
15. The Director may issue administrative orders, not inconsistent with this Act or the Public Service Act, 1995 (Act No. 13 of 1995), on the general control, training, duties and responsibilities of staff members of the Commission, and for such other matters as may be necessary or expedient for the good administration of the Commission or the prevention of the abuse of power or neglect of duty, and generally for ensuring the efficient and effective functioning of the Commission.
16. Annual report
16. (1) The Director must submit to the Prime Minister, not later than 31 March of each year, a report on the activities of the Commission during the previous year.
(2) The Prime Minister must submit the report of the Director to the National Assembly within 30 days after receipt thereof or, if the National Assembly is not then in session, within 30 days after commencement of its first ensuing session.
Chapter 3 Investigation of Corrupt Practices
17. Notification to Commission of corrupt practice
17. (1) Any person may furnish to the Commission information in connection with any matter which that person suspects on reasonable grounds concerns or may concern a corrupt practice.
(2) Information referred to in subsection (1) may be furnished to the Commission orally or in writing, and if orally the informant’s statement must be reduced to writing and signed by the informant.
(3) The Director may require from an informant to furnish, in such form as the Director thinks fit, any further information as may be required for purposes of the functions of the Commission.
18. Receipt and examination of allegations
18. (1) The Commission must –
(a) receive information furnished to it by any person who alleges that another person has or is engaged, or is about to engage, in a corrupt practice; and
(b) examine each alleged corrupt practice and decide whether or not an investigation in relation to the allegation is warranted on reasonable grounds.
(2) When deciding whether an investigation into an alleged corrupt practice is warranted, the Commission may consider –
(a) the seriousness of the conduct or involvement to which the allegation relates;
(b) whether or not the allegation is frivolous or vexatious or is made in good faith;
(c) whether or not the conduct or involvement to which the allegation relates is or has been the subject of investigation or other action by any other appropriate authority for the purposes of any other law;
(d) whether or not, in all the circumstances, the carrying out of an investigation for the purposes of this Act in relation to the allegation is justified and in the public interest.
(3) If the Commission decides that an investigation in relation to the allegation is warranted on reasonable grounds, it must decide whether the investigation should be carried out by the Commission or whether the allegation should be referred to another appropriate authority for investigation or action.
(4) For the purposes of performing the functions under this section the Commission may –
(a) make such preliminary inquiry as it considers necessary; and
(b) consult any other appropriate authority.
19. Notification of decision to informant
19. The Commission must in writing inform a person who has made an allegation in terms of section 17 of any decision made by the Commission under section 18 that further action in relation to the allegation for the purposes of this Act is not warranted on reasonable grounds, and if the matter is referred to another appropriate authority for further action, inform that person accordingly.
20. Initiating or assuming investigation of a complaint
20. (1) Investigation of a complaint or allegation of a corrupt practice may be initiated by the Commission of its own motion or on information furnished to the Commission in terms of section 17.
(2) The Commission may –
(a) assume the responsibility for any investigation into an alleged corrupt practice commenced or to be commenced by the police, and the police must comply with any requirement of the Commission in that regard;
(b) carry out an investigation into an alleged corrupt practice notwithstanding that any other authority, other than the police, is entrusted with a corresponding power or duty of investigation under, and for the purposes of, any other law.
21. Investigation by Commission
21. (1) For the performance of the functions of the Commission under this Act an authorised officer may conduct any investigation which the Commission is empowered to undertake in terms of this Act or any other law.
(2) Upon initiating or receiving a complaint which in the opinion of the Director warrants investigation on reasonable grounds, the Director must cause the complaint to be investigated as quickly as practicable.
(3) At any time during an investigation, the Director may designate one or more other authorised officers to assist the authorised officer conducting the investigation.
(4) A person questioned by an authorised officer conducting an investigation must answer each question truthfully and to the best of that person’s ability, but a person is not obliged to answer any question if the answer is self-incriminating.
(5) At any time during an investigation the Director may summon any person who is believed to be able to furnish any information on the subject of the investigation, or to have possession or control of any book, document or article that has a bearing on that subject to appear before the Director, or any other authorised officer designated by the Director, at a specified time and place in order –
(a) to be questioned; or
(b) to deliver or produce such book, document or article.
(6) The Director or other authorised officer before whom a person appears in terms of subsection (5) may –
(a) require that person to furnish the information under oath or on affirmation; and
(b) administer an oath to, or accept an affirmation from, that person.
(7) No self-incriminating answer given or statement made by any person to the Director or other authorised officer in terms of this section is admissible as evidence against that person in criminal proceedings against that person instituted in any court, except in criminal proceedings –
(a) for perjury; or
(b) for an offence referred to in section 29, and then only to the extent that the answer or statement is relevant to prove the offence charged.
22. Authority to enter and search under warrant
22. (1) An authorised officer may enter any premises and there –
(a) make such investigation or inquiry; and
(b) seize anything;
which in the opinion of the authorised officer has a bearing on the investigation.
(2) Subject to section 23, premises may be entered in terms of subsection (1) only by virtue of a warrant issued by a judge of the High Court or by a magistrate in whose area of jurisdiction the building or premises are situated.
(3) A warrant referred to in subsection (2) must be applied for by the Director, the Deputy Director or any other authorised officer and must be supported by an affidavit or a solemn declaration by the person making the application, or any other person having knowledge of the facts, stating –
(a) the nature of the investigation being conducted;
(b) the suspicion which gave rise to the investigation; and
(c) the need for a search and seizure in terms of this section for purposes of the investigation.
(4) A judge or a magistrate to whom an application for a warrant is made in terms of subsection (3) may issue a warrant authorising entry and search of the premises concerned if it appears to the judge or magistrate from the information furnished that there are reasonable grounds for believing that –
(a) a corrupt practice has taken place, is taking place or is likely to take place; and
(b) that anything connected with the investigation into that corrupt practice is on or in those premises.
(5) A warrant to enter and search premises may be issued on any day and must specifically –
(a) identify the premises that may be entered and searched; and
(b) authorise an authorised officer mentioned in the warrant to conduct the entry and search of the premises.
(6) A warrant to enter and search premises is valid until one of the following events occurs –
(a) the warrant is executed;
(b) the warrant is cancelled by the authority who issued it or, in that person’s absence, by a person with similar authority;
(c) the purpose for issuing it has lapsed; or
(d) the expiry of one month after the date it was issued.
(7) A warrant to enter and search may be executed only between 6:00 and 18:00, unless the judge or magistrate who issued it on good cause shown authorises that it may be executed at a different time.
(8) Before commencing with the execution of a warrant to enter and search premises, the person authorised by the warrant must –
(a) if the person in control of the premises is present-
(i) identify himself or herself to that person;
(ii) hand a copy of the warrant to that person; and
(iii) supply that person, at his or her request, with particulars regarding his or her authority to execute the warrant in accordance with the powers conferred by section 24.
(b) if no person is present, affix a copy of the warrant to a prominent and visible place on the premises.
23. Authority to enter and search without a warrant
23. (1) Notwithstanding section 22, an authorised officer may without a warrant of entry and search referred to in that section enter and search premises, other than a private dwelling, except if the dwelling is used also for business purposes, for the purpose of attaching and removing, if necessary, any book, document or article, if –
(a) the occupier of the premises or any other person in control of the premises consents to the entry, search, seizure and removal of the book, document or article concerned; or
(b) the authorised officer on reasonable grounds believes –
(i) that a warrant of entry and search will be issued if application therefore were made under section 22; and
(ii) that the delay in obtaining a warrant would defeat the object of the entry and search.
(2) Immediately before entering and searching premises in terms of this section, the person exercising the power must, if the person in control of the premises is present –
(a) identify himself or herself to that person; and
(b) supply that person, at his or her request, with particulars regarding –
(i) his or her authority to enter and search the premises without a warrant; and
(ii) the powers conferred by section 24.
(3) An entry and search without a warrant may be carried out between 6:00 and 18:00, unless doing it at another time is justifiable and necessary in the circumstances.
24. Powers to enter and search
24. (1) A person who is authorised under section 22 or 23 to enter and search premises may –
(a) enter the premises;
(b) search the premises;
(c) search any person on the premises if there are reasonable grounds for believing that the person has personal possession of any book, document or article that has a bearing on the investigation;
(d) examine any book, document or article that is on or in those premises that has a bearing on the investigation;
(e) request information about any book, document or article from the owner or other person in control of the premises or from any person who has control of the book, document or article, or from any other person who may have the information;
(f) take extracts from, or make copies of, any book or document that is on or in the premises that has a bearing on the investigation;
(g) in the presence of a person in charge of, or employed at, the premises, use any computer system on the premises, or require the assistance of any such person to use that computer system, to –
(i) search any data contained in or available to that computer system;
(ii) reproduce any record from that data; and
(iii) seize any output from that computer for examination and copying; and
(h) attach and, if necessary, remove from the premises for examination and safekeeping anything that has a bearing on the investigation.
(2) Notwithstanding paragraph (g) of subsection (1), if a person contemplated in that paragraph is not present or not able to give the assistance required by the authorized officer, the authorised officer may proceed to use the computer system if in the circumstances of the case any delay may prejudice the purpose for which the search is carried out.
(3) A person conducting an entry and search of premises under this Act may be accompanied and assisted by any other authorised officer or a police officer, or by any other person authorised by the Director for that purpose.
25. Conduct of entry and search
25. (1) A person who enters and searches any premises under section 22 or 23 must exercise those powers with strict regard for decency and order, and with regard for each person’s right to dignity, freedom, security and privacy.
(2) The search of a person under section 24(1)(c) may be conducted only by a person of the same gender as the person to be searched.
(3) A person who enters and searches premises under section 22 or 23 must, before questioning any person –
(a) advise that person of the right to be assisted by a legal practitioner; and
(b) allow that person to exercise that right.
(4) A person who removes anything from premises being searched must –
(a) issue a receipt for it to the owner or other person in control of the premises; and
(b) return it as soon as practicable after achieving the purpose for which it was removed.
(5) If the owner or person in control of any book, document or article refuses to allow the authorised officer conducting a search to inspect that book, document or article on the ground that it contains privileged information, the authorised officer may request the registrar or sheriff of the High Court, or the messenger of the magistrate’s court of the area of jurisdiction where the premises are situated, to attach and remove the article or document for safe custody until a competent court determines whether or not the information is privileged.
(6) An authorised officer or a police officer who accompanies and assists an authorised officer who conducts an entry and search of premises under section 22 or 23, may overcome resistance to the entry and search by using such force as is reasonably required, including breaking out a door or a window of the premises or any container or receptacle on the premises.
(7) Before using force as contemplated in subsection (6) to gain access to any premises, the authorised officer or police officer must audibly demand admission and must announce the purpose of the entry, except if the circumstances are such that immediate entry must be gained to prevent concealment, loss or destruction of anything on or in the premises.
26. Power to obtain information concerning assets
26. (1) If, in the course of an investigation into an alleged corrupt practice, the Director is satisfied that it could assist or expedite the investigation, the Director may, by notice in writing, require –
(a) any suspected person to furnish a statement in writing –
(i) enumerating all movable or immovable property belonging to or possessed by him or her in Namibia or elsewhere or held in trust for him or her in Namibia or elsewhere, and –
(aa) specifying the date on which every such property was acquired;
(bb) explaining whether it was acquired by way of purchase, exchange, gift, bequest, inheritance or by any other cause; and
(cc) specifying the consideration paid or given there for and the amount or value of the consideration;
(ii) specifying any moneys or other property acquired in Namibia or elsewhere, or held in or sent out of Namibia, in trust for him or her or on his or her behalf during such period as may be specified in the notice;
(b) any other person with whom the Director believes the suspected person had any financial transaction or other business dealing relating to an alleged corrupt practice to furnish a statement in writing enumerating all movable or immovable property acquired by that person in Namibia and elsewhere at the material time;
(c) any person to furnish, notwithstanding the provisions of any other law to the contrary, any information in that person’s possession relating to the affairs of any suspected person and to produce any document or certified true copy of any document relating to such suspected person which is in the possession or under the control of the person required to furnish the information;
(d) the manager or other person in charge of any bank, building society or other financial institution, in addition to furnishing any information specified in paragraph (c) to furnish any information or the originals, or certified true copies of the accounts or the statements of account at the bank, building society or financial institution of any suspected person notwithstanding the provisions of any other law to the contrary.
(2) Notwithstanding any oath or other obligation of secrecy imposed by law or otherwise, a person on whom a notice referred to in subsection (1) is served must, comply with the requirements of that notice within the time specified therein.
(3) A person who without reasonable excuse fails to comply with any requirement of a notice referred to in subsection (1), commits an offence and is liable on conviction to a fine not exceeding N$50 000 or to imprisonment for a term not exceeding three years or to both such fine and