By SIFISO DLAMINI | 2020-07-21
The House of Assembly has ordered the ministry of justice and constitutional affairs to suspend any arrests of persons found to have contravened the controversial Prevention of Organised Crime Act (POCA), No 11 of 2018.
Following the recent alarming increase of arrests and asset seizures owned by persons found to have breached the provisions of the act, members of Parliament have come to the defence of the so-called offenders as they argued that the act was unconstitutional and was adversely affecting the livelihoods of innocent citizens, being beneficiaries of the suspects.
After a lengthy debate, the House voted for the motion to be adopted with amendments, directing the Minister of Justice and Constitutional Affairs Pholile Shakantu and other stakeholders to direct the police and relevant institutions to halt the process of continued arrests for those found to be in breach of the Act, while the ministry implements contents of the motion. Unfortunately, as stated by the MPs, it was outlined that those who had already been arrested and have had their assets seized would not be protected, as their cases were already being deliberated on, with investigations and judgements still to be pronounced or have already been finalised.
This followed a motion without notice moved by the vibrant Hosea MP Mduduzi Mabuza, who moved for Minister Shakantu to prepare within seven days, which was later amended to 60 days, a Bill that sought to amend certain sections of the POCA that would address an array of concerns. The motion was seconded by Maphalaleni MP Mabulala Maseko.
According to the original motion, the concerns included the retroactive effect of the Act, which is against Section 119 of the Constitution of the Kingdom of Eswatini. Also, the ministry was requested to address the unwarranted seizure of property based on suspicions without ascertaining clearly the source of income of the individual in question. Another concern was the selective application of the law, which seemingly targets a certain group of citizens without any thorough investigations and not giving suspects the right to be heard.
The motion also stipulated that the law should spell out clearly the extent of forfeiture of proceeds in terms of contributions or purchases that proceeds were expended. Also, the clear case of conflict of interest that arose as a result of politicians being members of the Criminal Asset recovery committee, such as the prime minister, minister of finance and the minister of justice and constitutional affairs, as well as any other matter incidental and related to the above matter.
Before the debate commenced, the Attorney General Sifiso Khumalo indicated that he felt duty bound to clarify that the POCA was not unconstitutional as proceeds attained through criminal activity were not protected as outlined in the constitution.
Minister of Finance Neal Rijkenberg outlined that while addressing the concerns, the parliamentarians should be mindful of the fact that the country was signatory to a number of international conventions and agreements, particularly with regards to proceeds of crime which could be counterproductive as the country could be blacklisted. “As the finance minister, I plead that we be careful in discussing these issues to avoid ending up being on the wrong side of international agreements,” he said.
While motivating the motion, MP Mabuza indicated that he retained his belief that the Act was unconstitutional, and the concerns were raised by members of the public as they felt victimised by the law. He stated that the act was initially enacted to prevent the embezzlement of government funds, yet now it was being used to target certain individuals, while the main culprits busy helping themselves to public funds were roaming the streets without a care in the world.
He insisted that he was not condoning crime but instead he was against the treatment of certain individuals by government. He also said the targeting of certain individuals was tantamount to starting a civil war.
The seconder of the motion MP Maseko also stated that the law was no longer serving its intended purpose of preventing the misuse of government funds by politicians and civil servants alike. He mentioned that the former minister of Finance Majozi Sithole once revealed that there was about E40 million of public funds that disappeared on a monthly basis, yet government turned a blind eye and instead targeted Emaswati who were trying to make a living through farming cannabis.
He also indicated that the prime minister should not be included in the asset recovery committee, as it resulted in a conflict of interest.
Siphofaneni MP Mduduzi ‘Magawugawu’ Simelane, who is also a gospel singer and pastor said what was concerning was that the spike in the number of arrests came as soon as Parliament voted to defer the Cannabis Bill. “It does not take a rocket scientist to see that this was just government exercising its powers because they are grieving due to the deferment of the Cannabis Act,” he said.
On that note, Manzini North MP Macford Sibandze also supported the amendment of the Act while outlining that not all enacted laws were good, as some such as the apartheid regime laws in South Africa were bad. “As politicians, we have enacted bad as well as good laws, and this is not about the law but the abuse of the law. It does not mean that once it is enacted as a law, then it becomes good,” he said.
Nkhaba MP Zakhele Magongo said what was concerning was that the law was only enforced to target people involved in the illegal dealing of dagga, while a third of the country’s population was dependent on this illicit trade for their livelihoods. He said if they were targeting such activities, government should also question the schools where parents paid for their children’s fees, as well as post police offices in all hardware stores to turn back all customers who could not provide valid sources of income. He said the country’s economy was dependent on the illegal trade of dagga.
Minister Shakantu acknowledged the submissions made by the MPs and stated that the ministry was committed to address the matter soon. She, however said the motion was not clear as to which specific sections of the Act needed to be amended. She indicated that the number of days provided to provide the report were not enough as the motion was broad and not specific.
Minister Shakantu insisted that the Constitution does not protect proceeds acquired through criminal activities. She requested the House to elect a select committee to look into the law in detail instead of concentrating on specific sections that were not even indicated in the motion.
In closing, MP Mabuza moved for the motion to be adopted with amendments, including the halting of more arrests while the matter was being addressed by the ministry. He also indicated that the ministry should be given 60 days instead of the originally stipulated seven days to address the matter. The House adopted the motion with the stipulated amendments, meaning there will be no more arrests and asset forfeitures in the meantime while the matter is being attended to by the ministry and feedback presented to the House.
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