A Critical Assessment Of The Effectiveness Of The Legal Framework On Drug Offences In Namibia

Abstract

The purpose of the study was to critically assess drug offences (created by the Abuse of Dependence-producing Substances and Rehabilitation Centres Act, Act 41 of 1971) in Namibia. What the study set out to do was to determine if the current law dealing with drug offences was effective. The study primarily made use of qualitative, rather than a quantitative, research method. A documentary study was done by way of desktop review of relevant Namibian legislation, relevant academic publications, media reports as well as case law. Research material was also sourced from the Internet. The researcher undertook empirical field research comprised of personal and group interviews conducted with identified stakeholders.

The main issue queried was the issue of drug trafficking, that is, whether the drug legislation criminalises drug related offences, such as drug trafficking. It was established that drug trafficking is not criminalised by the Namibian Drugs Legislation. The study further assessed the constitutionality of the presumptions contained in Section 10 of the Namibian Drug Legislation that basically assumes that an accused has committed a certain drug related offence, such as when the accused is found in possession of dagga exceeding 115 grams in mass or any prohibited dependence producing drug the accused is deemed to have dealt in that dagga or drug, unless such an accused proves the contrary. A comparison was drawn between the Namibian and South African legal position with regard to that issue. The case law studied showed that the presumptions that are still part of the Namibian Drug Legislation have already been declared as being unconstitutional in South Africa. It was concluded that indeed the Section 10 presumptions were unconstitutional in Namibia insofar as they were in conflict with the constitutional right to be presumed innocent until proven guilty in a court of law.

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The study also investigated how the Namibian drug law deals with the issue of the instrumentalities and proceeds of drug related offences. At the end of this investigation it was established that the Namibian drug law does not sufficiently deal with this particular issue