NAMIBIA. The Law of the Gun REPORT. An audit of firearms control legislation in the SADC region. SaferAfrica and Saferworld

Transcription

1 REPORT Small arms and security in Southern Africa SaferAfrica and Saferworld The Law of the Gun Namibia Arms and Ammunition Act, 1996 arm means any firearm other than a cannon or, except for the purposes of Chapter 2 and sections 34, 35, 36, 38(1) and 44(1), other than a machine gun or machine rifle, and includes (a) subject to subsections (2) and (3) (i) a gas pistol or revolver; (ii) an air pistol other than a toy pistol; (iii) an alarm pistol or revolver; (iv) a gas rifle or an air rifle of,177 of an inch or larger calibre; (b) any barrel of an arm; (c) any other instrument declared as an arm under subsection (2); An audit of firearms control legislation in the SADC region NAMIBIA Peter Cross, Rick de Caris, Ettienne Hennop and Angus Urquhart June 2003

2 The Law of the Gun: NAMIBIA An audit of firearms control legislation in the SADC region Peter Cross, Rick de Caris, Ettienne Hennop and Angus Urquhart SAFERAFRICA AND SAFERWORLD JUNE 2003

3

4 Contents Foreword 5 Overview of firearms situation 8 Overview of legislation 8 General information 9 Definitions in Namibia s firearms control legislation 10 Breakdown of Namibia s firearms control legislation 12 Controls on civilian possession and use 12 Record keeping and tracing 22 Import, export and transit 25 Brokering 29 Manufacture 29 Trade 33 Seizure, disposal and enforcement 38 Arms embargoes 41 State-owned firearms 41

5 Acknowledgements Saferworld is grateful to the UK Government for funding this project. SaferAfrica is grateful to the governments of the UK, the Netherlands, Ireland and Norway for funding this project. In the research and writing of this report valuable assistance was provided by government and civil society representatives in all the countries included in the study. Special thanks to Gabriël Oosthuizen for his valuable input in checking the numerous tables in the full study and providing advice on the international legal perspective.

6 Foreword THIS COUNTRY STUDY forms one chapter of a comprehensive study on firearms legislation in Southern Africa, conducted by Saferworld and SaferAfrica which aims to assess the strengths and weaknesses of the firearms control legislation in Southern African Development Community (SADC) member states. The full study contains an introductory chapter providing an overview of the firearms legislation in 12 of the SADC member states and the regional perspective. Each of the following 12 chapters covers one SADC member state. The chapter provides an in-depth analysis of each state s firearms legislation against the commitments contained in the four key international and regional small arms agreements for the SADC member states: Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organised Crime ( UN Firearms Protocol ); United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light weapons in All Its Aspects ( UN Programme of Action ); Bamako Declaration on an African Common Position on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons ( Bamako Declaration ); and SADC Protocol on The Control of Firearms, Ammunition and Other Related Materials ( SADC Firearms Protocol ). The study is intended as a reference document to assist law-makers and others involved in reviewing national legislation. For every country, the existing national firearms laws are unpacked and their provisions detailed, by issue, alongside the requirements of the international and regional small arms agreements. This analysis is presented in an individual table for each country, in which it is possible to adjudge the level of conformity with the requirements of the international and regional agreements.

7 6 THE LAW OF THE GUN: AN AUDIT OF FIREARMS CONTROL LEGISLATION Sources The information contained in this report was collected through field research. During the research visits to each country the research team consulted a wide range of government departments, including: The Ministry of the Interior/Home Affairs The Ministry of Justice The Ministry of Defence The Attorney General s Office The Police The Army / Defence Forces Customs and Immigration Wildlife and Parks Local civil society actors were also consulted. Using this document The country-study reports contain four sections: Overview of the firearms situation and legislation in the country. The information in this overview was collected during research trips to the country. General Information about the country is contained in a table following the overview of the firearms situation in the country. This includes information relating to the international and regional agreements that the country has signed up to, information on the current firearms control legislation and information on the number of firearms in the country. Definitions are contained in a table which presents the definitions contained in the country s national legislation, presenting them alongside the definitions contained in the SADC Firearms Protocol and the UN Firearms Protocol. Legislation Breakdown is contained in a table which forms the main body of the country study. The breakdown of the legislation is done against 9 analytic categories. The following broad categories were identified in order to facilitate a uniform approach to the analysis of very different pieces of legislation: Controls on civilian possession and use Record keeping and tracing Import, export and transit Brokering Manufacture Trade Seizure, disposal, and enforcement Arms embargoes State-owned firearms This breakdown of the national legislation is presented alongside the commitments contained in the four key regional and international agreements. A comment on conformity, to these agreements has been included. Throughout this report, where we talk of conformity, commitments, requirements or similar terms, we do so with regard to the importance of fully implementing the provisions of these agreements and the need to ratify them and hasten their entry into force. By noting the conformity or otherwise of existing national legislation we are not indicating a legal commitment to the SADC Firearms Protocol and UN Firearms Protocol, before these are ratified and have entered into force. Full conformity with the provisions of these regional and international small arms agreements is, nonetheless, important in laying the foundations for the effective control of firearms across the SADC region. The presentation of the analysis is intended to

8 NAMIBIA 7 facilitate cross-referencing between the national legislation and the international and regional commitments as well as cross referencing between the various pieces of legislation in the SADC region. The tables contain the articles specifically relevant to the analytical category and the requirements of the international and regional agreements, however, both in terms of accessibility and due to constraints of space certain articles and/or subsections have been omitted. We have tried, where possible, to limit this to articles containing procedural guidelines. Also, where articles crossreference other articles within the act, these cross-referenced articles have often not been immediately reproduced, again because of constraints of space. In most cases, however, these cross-referenced articles appear under different sections of the table. This country study should be used in conjunction with the narrative section of the study which contains a comprehensive overview of the aims and objectives of the study as well as the methodology used. The narrative section includes a table containing the key international and regional agreements broken down against the analytical categories outlined above. The narrative report and the 12 country studies are available online at Saferworld s website: while hard copies are available on request.

9 Namibia Overview of firearms situation THE NUMBER OF REGISTERED FIREARMS IN NAMIBIA is relatively high, currently there are approximately 90,000 registered civilian-owned firearms. Indications from the police and from civil society point towards a rise in insecurity and crime related to greater suspected illicit firearm possession and use, especially of military type firearms. Most of the 90,000 registered civilianowned firearms relate to the hunting and security industries. The availability of illegal firearms, ammunition and explosives in Namibia originates from more than one source, the war involving South Africa and South West African Peoples Organisation (SWAPO) and the war and subsequent peace in Angola. It is believed that the South African forces left behind huge amounts of military equipment, including explosives, ammunition and firearms during their withdrawal from Namibia. During the truce in Angola in 1994, illegal firearms moved from Angola through Namibia to South Africa and there is concern that if measures are not put in place now this situation will be repeated with the newly-signed peace agreement between UNITA and the Angolan government. The Central Firearm Registry (CFR) of Namibia is administered by the police under the Department of Home Affairs. The database is electronic but is limited in both its capacity and the assistance it can provide to the police in the tracing and identification of firearms. The CFR operates only during office hours and is the only place where computers are available for the tracing and checking of information on legal firearms or firearm owners. No data is available on police or military firearms and this hampers investigations when these firearms are used in crime. Police stations in Namibia do not have a direct computer link to the central database and this further hampers any quick checking of firearm or owners details. All import and export permits are forwarded to the CFR after being issued by the local police station where the application has taken place. However, no background checks are done on applicants for firearm licences nor is there any limit on the number of firearms a person may possess. The CFR is outdated and the existing records have not been updated to reflect changed circumstances of firearm owners. No reprogramming or expansion of the CFR has taken place and none is expected in the near future. This will hamper future control, tracing and investigations by the police over illegal and legal firearms in Namibia. Given this situation there is a pressing need to ensure that stringent and comprehensive legislative controls are in place. Overview of legislation The bulk of controls on firearms are currently contained within the Arms and Ammunition of The Attorney General s Office believes that the Act fulfils its mandate in controlling firearms in Namibia. However, it does not adequately cover the range and extent of the contemporary firearms problem nor the existing regional and international agreements to which Namibia is party.

10 NAMIBIA 9 For instance, critical issues such as the control of brokering activities and the competency testing of applicants for firearms licenses are not currently addressed in Namibia s legislation. On the other hand the Act does make adequate provision for penalties, which are severe, for example 25 years imprisonment for the unlawful possession of a military-type firearm. General information Namibia International agreements SADC Firearms Protocol Signed Ratified UN Firearms Protocol UN Programme of Action Bamako Declaration Party to Party to Primary legislation (Act 7 of 1996) Last amendment / revisions 1998 Regulations Yes Year of implementation 26 June 1996 Other legislation containing Explosives Act, Act 26 of firearms controls Central Firearms Registry Yes, electronic. Managed by the Namibian Police. Only access to data at Central Firearm Registry. Number of registered Approximately 90,000 civilian firearms Review None

11 Definitions in Namibia s firearms control legislation Definitions Analytical category SADC Firearms Protocol UN Firearms Protocol National legislation Firearms Article 1 firearm means: (a) any portable lethal weapon that expels, or is designed to expel, a shot, bullet or projectile by the action of burning propellant, excluding antique firearms or their replicas that are not subject to authorisation in the respective State Parties; (b) any device which may be readily converted into a weapon referred to in paragraph a); (c) any small arm as defined in this Article; or (d) any light weapon as defined in this Article Article 3 (a) Firearm shall mean any portable barrelled weapon that expels, is designed to expel or may be readily converted to expel a shot, bullet or projectile by the action of an explosive, excluding antique firearms or their replicas. Antique firearms and their replicas shall be defined in accordance with domestic law. In no case, however, shall antique firearms include firearms manufactured after 1899; Arms and Ammunition Act, 1996 "arm" means any firearm other than a cannon or, except for the purposes of Chapter 2 and sections 34, 35, 36, 38(1) and 44(1), other than a machine gun or machine rifle, and includes (a) subject to subsections (2) and (3) (i) a gas pistol or revolver; (ii) an air pistol other than a toy pistol; (iii) an alarm pistol or revolver; (iv) a gas rifle or an air rifle of,177 of an inch or larger calibre; (b) any barrel of an arm; (c) any other instrument declared as an arm under subsection (2); Ammunition Article 1 ammunition means the complete cartridge including the cartridge case, unfired primer, propellant, bullets and projectiles that are used in a firearm, provided those components are themselves subject to authorisation in the respective State Parties; Article 3 (c) Ammunition shall mean the complete round or its components, including cartridge cases, primers, propellant powder, bullets or projectiles, that are used in a firearm, provided that those components are themselves subject to authorization in the respective State Party; Arms and Ammunition Act, 1996 "ammunition" means any cartridge or percussion cap intended for use in the discharge of an arm; Light weapons / arms of war Article 1 light weapons include the following portable weapons

12 NAMIBIA 11 Definitions Analytical category SADC Firearms Protocol UN Firearms Protocol National legislation designed for use by several persons serving as a crew: heavy machine guns, automatic cannons, howitzers, mortars of less than 100 mm calibre, grenade launchers, anti-tank weapons and launchers, recoilless guns, shoulder fired rockets, antiaircraft weapons and launchers, and air defence weapons. Small arms Article 1 small arms include light machine guns, sub-machine guns, including machine pistols, fully automatic rifles and assault rifles and semiautomatic rifles; Other related materials / parts and components Article 1 other related materials means any components, parts or replacement parts of a firearm that are essential to the operation of the firearm; Article 3 (b) Parts and components shall mean any element or replacement element specifically designed for a firearm and essential to its operation, including a barrel, frame or receiver, slide or cylinder, bolt or breech block, and any device designed or adapted to diminish the sound caused by firing a firearm;

13 Breakdown of Namibia s firearms control legislation Controls on civilian possession and use Licensing Description of licensing process how firearms licence is obtained SADC Firearms Protocol Art. 5 (3) (a) (j) Requires the prohibition of unrestricted possession of small arms by civilians. Requires the monitoring and auditing of licences held in a person s possession. Bamako Declaration Art. 3 A (iii) Recommends establishing as a criminal offence the illegal possession of small arms and light weapons. UN Programme of Action II Art. 3 Recommends establishing as a criminal offence the illegal possession of small arms and light weapons. Art. 2 Subject to sections 1(4), 3(6), 4, 8, 24, 34(2) and 44, no person shall have any arm in his or her possession unless he or she holds a licence to possess such arm. Art. 3 (1) On application in the prescribed manner and payment of the prescribed application fee by any person other than a person younger than 18 years or a disqualified person, the Inspector- General may, on payment of the prescribed licence fee, but subject to the provisions of this section and sections 7 and 30(2), issue to such person a licence to possess the arm described in such licence These and related national provisions relevant international and regional agreements, except that the monitoring and auditing of licenses held in a person s possession appears to be inadequately provided for. Controls on civilian possession and use Restrictions and conditions Personal suitability to possess arms Art. 10 (1) If a member of the Police is, on the ground of information contained in a statement made under oath or affirmation, of the opinion that

14 NAMIBIA 13 Controls on civilian possession and use Restrictions and conditions there is reason to believe that any person is a person (a) who has threatened or expressed the intention to kill or injure himself or herself or any other person by means of an arm; (b) whose possession of an arm is not in the interest of that person or any other person as a result of his or her mental conditions, his or her inclination to violence, whether an arm was used in the violence or not, or his or her dependence on intoxicating liquor or a drug which has a narcotic effect; or (c) who handles an arm in a reckless manner, the member concerned shall forthwith report the matter to the magistrate of the district in which such person is. Art. 2 (b) A member of the Police may, if he or she has reason to believe that a person contemplated in subsection (1) has an arm in his or her possession, mutatis mutandis in accordance with Chapter 2 of the Criminal Procedure Act, 1977 (Act 51 of 1977), without prior notice, enter any premises, vehicle or vessel and search and seize any such arm as if such arm were concerned in the commission of an offence. (3) The magistrate referred to in subsection (1) or any other magistrate designated by him or her may, on receipt of a report contemplated in that subsection, direct the Inspector-General to (a) serve a notice in writing upon (i) the person concerned, calling upon such person to appear before that magistrate at such time and date as may be specified in the notice, in order to answer such alleged grounds of unfitness to possess an arm as may be specified in the notice; (ii) any person who made a statement in connection with the matter, also to appear before that magistrate; (b) instruct the member of the Police contemplated in subsection (1), or any other such member acting in his or her stead, to attend the proceedings. (5) Upon proof that every notice referred to in paragraph (a) of subsection (3) was duly served upon the person to whom it was addressed, the magistrate may at any time subsequent to the time specified in the notice, whether or not such person complies with the notice, declare the person contemplated in subparagraph (i) of that paragraph to be unfit to possess an arm if the magistrate having regard to (a) any reasons, submissions or evidence advanced under oath by or on behalf of such persons; and (b) any other sworn or affirmed information or evidence at his or her disposal, is satisfied that such person is a person contemplated in paragraph (a), (b) or (c) of subsection (1). (6) Subject to subsection (7), a person who is convicted by a court of (a) a contravention of a provision of this Act relating to the unlawful possession of an arm without the required licence, permit or other authorization, or of section 38(1)(i), (j), (k), (l) or (m), or of any other offence in the commission of which an arm was used (excluding any such conviction following upon the payment of an

15 14 THE LAW OF THE GUN: AN AUDIT OF FIREARMS CONTROL LEGISLATION Controls on civilian possession and use Restrictions and conditions admission of guilt fine in terms of section 57 of the said Criminal Procedure Act, 1977), is deemed to be declared unfit to possess an arm, unless the court determines otherwise; (b) an offence referred to in Schedule 1 of this Act in the commission of which an arm was not used, may except in the case where such a conviction follows upon the payment of an admission of a guilt fine referred to in paragraph (a), be declared unfit to possess an arm in the discretion of the court concerned. (7) The court shall upon convicting any person referred to in paragraph (a) of subsection (6) of where the court exercises a discretion as referred to in paragraph (b) of that subsection, bring the provisions of the paragraph concerned to the notice of such person and afford him or her an opportunity to advance reasons and present evidence why he or she should not be declared or deemed to be declared unfit to possess an arm. (8) A person declared or deemed to be declared unfit to possess an arm in terms of subsection (5) or (6), shall be so unfit for such period of not less than two years as may be fixed by the court concerned. Art. 11 (1) All licences, authorizations or permits to possess arms and ammunition referred to in paragraphs (a) and (b) of section 12(1), issued to any person declared under section 10 to be unfit or who is deemed in terms of that section to have been declared unfit to possess an arm, shall cease to be valid as from the date of the declaration concerned. (2) Subject to sections 29 and 44, no person declared or deemed to be declared under this Chapter to be unfit to possess an arm, shall have an arm in his or her possession at any time while the declaration is of force. Age restrictions Art. 3 (1) On application in the prescribed manner and payment of the prescribed application fee by any person other than a person younger than 18 years or a disqualified person, the Inspector- General may, on payment of the prescribed licence fee, but subject to the provisions of this section and sections 7 and 30(2), issue to such person a licence to possess the arm described in such licence. Art. 34 (1) No person shall permit or enable a person younger than 18 years to be in possession of any arm or ammunition. (2) Whenever any such juvenile is in possession of any arm or ammunition, it may be seized by any member of the Police or by any person who has attained the age of 18 years who or whose employer is the owner or lawful occupier of the land on which the juvenile is in possession of the arm or ammunition. Art. 44 (3) Notwithstanding anything to the contrary contained in this Act, it shall be permissible for any person who has attained the age of 21 years who is in lawful possession of an arm, to allow a person under the age of 18 years to use such arm under his or her immediate supervision.

16 NAMIBIA 15 Controls on civilian possession and use Restrictions and conditions Competency test SADC Firearms Protocol Art. 5 (3) (i) Requires competency testing regional and international agreements. Quantity of weapons SADC Firearms Protocol Art. 5 (3) (j) Requires restrictions on quantities of weapons held Art. 3 (7) No person, other than a person referred to in paragraph (l) or (m) of section 42(1), shall in terms of subsection (1) be issued with a licence or licences entitling such person to possess more than four arms, or such greater number as the Minister upon application and on good cause shown may approve. Art. 42 (1) Subject to subsection (2), the Minister may make regulations relating to (l) the declaration of persons or categories of persons as security officers, bona fide collectors of arms and ammunition, bona fide sportsmen or bona fide hunters, subject to such terms, conditions, restrictions, directions or exemptions as may be determined, including the particulars or information to be furnished by such persons in an application to possess arms and ammunition, any documents which shall accompany such application, the registration of such persons and the acquisition and disposal of arms or ammunition by such persons; (m) the persons who acquire arms and ammunition by way of inheritance, subject to such terms, conditions, restrictions, directions or exemptions as may be specified; These national provisions broadly relevant international and regional agreements. Licence required for each arm Art. 3 (1) On application in the prescribed manner and payment of the prescribed application fee by any person other than a person younger than 18 years or a disqualified person, the Inspector- General may, on payment of the prescribed licence fee, but subject to the provisions of this section and sections 7 and 30(2), issue to such person a licence to possess the arm described in such licence. Quantity of ammunition Type of weapon SADC Firearms Protocol Art. 5 (3) (b) Requires the total prohibition of civilian possession and use of light weapons. Miscellaneous Provisions Art. 29 (1) Subject to subsection (4), no person shall, except on behalf of the State or under the authority of and in accordance with a permit issued by the Minister in his or her discretion, import into Namibia, supply to any other person or have in his or her possession any armament, including (a) any cannon, recoilless gun or mortar, rocket launcher, machine gun or machine rifle or any similar armament, or any part including a magazine, frame or body, thereof; (b) any projectile or rocket intended to be discharged from a cannon, recoilless gun or mortar, or rocket launcher, or any substance legislation conforms to the relevant international and regional agreements, except that it is unclear whether and under what circumstances a civilian may be issued with a permit to possess light weapons.

17 16 THE LAW OF THE GUN: AN AUDIT OF FIREARMS CONTROL LEGISLATION Controls on civilian possession and use Restrictions and conditions intended to propel or to assist in propelling any such projectile or rocket so discharged, or any grenade, bomb or similar missile, or any frame or body or any such projectile, rocket, grenade, bomb or missile; (c) any explosive or incendiary device or any part thereof; (d) an imitation of any armament referred to in paragraph (b) or (c); (e) ammunition intended to be fired from a machine gun or machine rifle or any similar armament or ammunition designed or adopted to explode on or immediately before impact. Duration of licence and renewal procedure Art. 5 Any licence to possess an arm shall remain valid until (a) the possession of the arm is permanently transferred by the holder thereof to any other person; (b) the licence ceases to be a valid licence in terms of the provisions of section 11(1); (c) the arm is forfeited to the State by order of a competent court or is expropriated in terms of any law. Withholding information or misrepresentation SADC Firearms Protocol Art. 5 (3) (l) Requires provisions that prohibit the misrepresentation or withholding of any information given with a view to obtain a licence or permit. Offences and penalties Art. 38 (1) Any person who (f) for the purpose of obtaining, whether for himself or herself or for any other person, any licence, permit or authority under this Act, makes any statement or representation knowing it to be false or not knowing or believing it to be true; shall be guilty of an offence. This national provision conforms to the relevant international and regional agreements. Exemptions Art. 24 A permit issued under section 23 for the importation of an arm by any person having such arm in his or her possession on entering Namibia, shall for such period as the staff member contemplated in that section may, in accordance with the directions of the Minister, endorse on the permit, be deemed to be a licence to possess an arm. Art. 44 (1) The provisions of this Act, other than the provisions of Chapter 2 or section 42, shall not apply to the possession or supply of arms or ammunition by (a) any person on behalf of the State; (b) any person in his or her capacity as a person in the service of the State; (c) any person for the purpose of the Defence Act, 1957 (Act 44 of 1946). (2) The provisions of sections 2, 31 and 32 shall not apply to (a) the possession or supply of any arm or ammunition by any person in his or her capacity as a person in the service of such State-aided body or institution as the Minister may determine from time to time; (b) the possession of arms or ammunition by (i) any person in the ordinary course of his or her business or the business of his or her employer as licensed dealer, authorized manufacturer or

18 NAMIBIA 17 Controls on civilian possession and use Restrictions and conditions gunsmith, carrier or storage contractor; (ii) any person or persons who convey or store arms under the written consent of the Inspector- General and in the manner which he or she may determine; (iii) any person in his or her capacity as executor, administrator, trustee or liquidator of the estate of the former owner thereof; (iv) the seller for the purposes of any sale contemplated in section 14(3); (v) any person under the authority of a permit issued by the Minister; (c) the supply of arms or ammunition to any person who may by virtue of paragraph (b) have such arms or ammunition in his or her possession. (3) Notwithstanding anything to the contrary contained in this Act, it shall be permissible for any person who has attained the age of 21 years who is in lawful possession of an arm, to allow a person under the age of 18 years to use such arm under his or her immediate supervision. Controls on civilian possession and use Possession and use Restrictions on application/ use of firearm when, where, how? (potential cases include: resisting arrest, injure / endanger person or property, handle firearm under influence of drugs/alcohol, negligent discharge, point gun without good cause, restrictions on carriage of firearm (when, where (public place)), how (holster, concealed etc)) SADC Firearms Protocol Art. 5 (3) (e) Requires measures ensuring that proper controls are exercised over the possession and use of firearms, ammunition and other related materials. Bamako Declaration Art. 3 A (iii) Recommends establishing as a criminal offence the illegal possession and use of small arms and light weapons. UN Programme of Action II Art. 3 Recommends establishing as a criminal offence the illegal possession of small arms and light weapons. Arms and Ammunition, 1996 Art. 38 Any Person who (l) discharges an arm and thereby negligently kills, injures, endangers the life or limb of another person or damages property or any other person, or who handles an arm in a negligent manner, whether that arm discharges or not; (m) handles an arm while he or she is under the influence of liquor or a drug which has a narcotic effect, or supplies an arm to a person whom he or she knows or should reasonably suspect to be under the influence of liquor or a drug which has a narcotic effect; (o) other than in the exercise of any power or the performance of any duty granted to or imposed upon him or her under or by virtue of the provisions of any law, or under circumstances where such action is justified under the common law, discharges an arm in or on any public place or on any public road, or any other place or road to which the public or a part thereof has access, shall be guilty of an offence. These and related national provisions relevant international and regional agreements. Storage and safekeeping SADC Firearms Protocol Art. 5 (3) (i) Requires effective controls over firearms, including storage. Art. 3 (8) A licence in terms of subsection (1) and an authorization in terms of subsection (4) shall only be issued to a person if he or she is, or will be, on the date that it is so issued to him or her, in possession of or has access to such strong-room or other place of safety or safe, device, apparatus legislation conforms to the relevant international and regional agreements.

19 18 THE LAW OF THE GUN: AN AUDIT OF FIREARMS CONTROL LEGISLATION Controls on civilian possession and use Possession and use or instrument for the safe-keeping of an arm as may be prescribed. Art. 38 (1) Any person who (j) fails to lock away an arm in his or her lawful possession in a strong-room or other place of safety or safe, device, apparatus or instrument for the safe-keeping of an arm referred to in section 3(8) when such arm is not carried on his or her person or is not under his or her direct control; shall be guilty of an offence. Restrictions on / conditions of relinquishing firearms: to whom (authorised person, dealer, licence holder, relations etc) SADC Firearms Protocol Art. 5 (3) (i) Requires restrictions on the owner s rights to relinquish control, use and possession of firearms, ammunitions and other related materials. Art. 8 (1) Any person other than a person under the age of 18 years or a disqualified person may, with the prior consent of the holder of a licence to possess an arm, whether or not such consent was granted in pursuance of an agreement of lease, and for such period as such holder may permit, have such arm in his or her possession for his or her lawful personal protection or benefit, including the hunting of game, or for the purpose of keeping custody of the arm, without holding any licence, provided (a) (i) the permission of the licence holder is contained in a statement in writing signed by him or her and setting forth the period for which permission has been granted and particulars sufficient for identifying the arm; and (ii) if such person is not the spouse of such holder and the said period exceeds 21 days, the said statement has been endorsed by a person acting under the authority of the Inspector-General; or (b) such person has the arm in his or her possession in the immediate vicinity of the licence holder or while on any land belonging to or lawfully occupied by the licence holder. (2) Any person other than a person under the age of 18 years or a disqualified person may, with the consent of the holder of a licence to possess an arm, and under the authority and subject to the conditions of a permit in writing issued by a person acting under the authority of the Inspector- General, have such arm in his or her possession for any purpose other than a purpose mentioned in subsection (1), including the rendering of services on behalf of another person, without holding a licence. Art. 38 (1) Any person who (k) while in lawful possession of an arm, loses such arm, or from whom it is stolen owing to that person's failure (ii) to take reasonable steps to prevent the loss or theft of the arm while the arm was on his or her person or under his or her direct control; shall be guilty of an offence. Art. 44 (3) Notwithstanding anything to the contrary contained in this Act, it shall be permissible for any person who has attained the age of 21 years who is in lawful possession of an arm, to allow a person under the age of 18 years to use such arm under his or her immediate supervision. (4) For the purposes of subsection (1), "spouse" includes a person who is, in terms of traditional laws and customs, a partner in a customary union. provisions conform to the relevant international and regional agreements.

20 NAMIBIA 19 Controls on civilian possession and use Possession and use leasing / lending Art. 8 (1) Any person other than a person under the age of 18 years or a disqualified person may, with the prior consent of the holder of a licence to possess an arm, whether or not such consent was granted in pursuance of an agreement of lease, and for such period as such holder may permit, have such arm in his or her possession for his or her lawful personal protection or benefit, including the hunting of game, or for the purpose of keeping custody of the arm, without holding any licence, provided (a) (i) the permission of the licence holder is contained in a statement in writing signed by him or her and setting forth the period for which permission has been granted and particulars sufficient for identifying the arm; and (ii) if such person is not the spouse of such holder and the said period exceeds 21 days, the said statement has been endorsed by a person acting under the authority of the Inspector-General; or (b) such person has the arm in his or her possession in the immediate vicinity of the licence holder or while on any land belonging to or lawfully occupied by the licence holder. (2) Any person other than a person under the age of 18 years or a disqualified person may, with the consent of the holder of a licence to possess an arm, and under the authority and subject to the conditions of a permit in writing issued by a person acting under the authority of the Inspector- General, have such arm in his or her possession for any purpose other than a purpose mentioned in subsection (1), including the rendering of services on behalf of another person, without holding a licence. pawning / pledging SADC Firearms Protocol Art 5 (3) (k) Requires controls over pawning and pledging of firearms, ammunition and other related materials. international and regional agreements as there are no specific provisions specifically prohibiting the pawning or pledging of firearms. inheritance / death Art. 42 (1) Subject to subsection (2), the Minister may make regulations relating to - (m) the persons who acquire arms and ammunition by way of inheritance, subject to such terms, conditions, restrictions, directions or exemptions as may be specified; (n) the reporting by any person in his or her capacity as executor, administrator, trustee or liquidator of the estate of the former owner of arms and ammunition, of such arms and ammunition; Art. 44 (2) The provisions of sections 2, 31 and 32 shall not apply to (b) the possession of arms or ammunition by (iii) any person in his or her capacity as executor, administrator, trustee or liquidator of the estate of

21 20 THE LAW OF THE GUN: AN AUDIT OF FIREARMS CONTROL LEGISLATION Controls on civilian possession and use Possession and use the former owner thereof; others Notifying authorities of altered circumstances (death, loss, theft, change of address, weapon to gunsmith, disposal, destruction etc) Art. 35 Whenever any arm in the possession of any person is lost, stolen or destroyed, he or she shall within 7 days after having become aware of the loss, theft or destruction of the arm, report such loss, theft or destruction in person or through a person authorized thereto by him or her, to a member of the Police on duty at a police station, and shall, at the request of such member, furnish him or her with such particulars relating to the arm, the place where and the time when it was lost, stolen or destroyed as such member may require. Art. 42 (1) Subject to subsection (2), the Minister may make regulations relating to (h) the notification of a permanent change in the ordinary place of residence or the postal address of the holder of a licence to possess an arm; Others carry licence while in possession, civilian maintenance, repair, loading Art. 9 (2) Any person having an arm in his or her possession shall at all times have in his or her actual possession the licence or other authority to possess the arm and shall produce the licence or other authority immediately at the request of a member of the Police. Controls on civilian possession and use Offences / penalties Art. 38 (1) Any person who (a) forges or utters, knowing it to be forged or makes any unauthorized alteration in any licence, permit, certificate, authority or other document issued under or provided for in this Act; (b) makes any false entry in any register to be kept under section 20 or furnishes any false information in any return to be rendered under that section; (c) obstructs or hinders any person in the performance of any duty under this Act; (d) contravenes or fails to comply with any provision, direction or requirement of any notice issued under this Act; (e) fails to comply with or performs any act contrary to the terms, conditions, restrictions or directions subject to which any licence, permit or authority has been issued or granted to him or her under this Act; (f) for the purpose of obtaining, whether for himself or herself or for any other person, any licence,

22 NAMIBIA 21 Controls on civilian possession and use Offences / penalties permit or authority under this Act, makes any statement or representation knowing it to be false or not knowing or believing it to be true; (g) fails to comply with a request made under section 9, 21 or 35; (h) contravenes or fails to comply with any provision of this Act; (i) wilfully points any arm or air rifle which is not an arm at any person; (j) fails to lock away an arm in his or her lawful possession in a strong-room or other place of safety or safe, device, apparatus or instrument for the safe-keeping of an arm referred to in section 3(8) when such arm is not carried on his or her person or is not under his or her direct control; (k) while in lawful possession of an arm, loses such arm, or from whom it is stolen owing to that person's failure (i) to lock the arm away as contemplated in paragraph (j); or (ii) to take reasonable steps to prevent the loss or theft of the arm while the arm was on his or her person or under his or her direct control; (l) discharges an arm and thereby negligently kills, injures, endangers the life or limb of another person or damages property or any other person, or who handles an arm in a negligent manner, whether that arm discharges or not; (m) handles an arm while he or she is under the influence of liquor or a drug which has a narcotic effect, or supplies an arm to a person whom he or she knows or should reasonably suspect to be under the influence of liquor or a drug which has a narcotic effect; (n) adapts a shotgun in such a manner that the arm, as so adapted, has a barrel that is less than 457mm in length or is less than 660mm in overall length; (o) other than in the exercise of any power or the performance of any duty granted to or imposed upon him or her under or by virtue of the provisions of any law, or under circumstances where such action is justified under the common law, discharges an arm in or on any public place or on any public road, or any other place or road to which the public or a part thereof has access, shall be guilty of an offence. (2) Subject to the provisions of this section, any person convicted of an offence under this Act shall be liable (a) in the case of a contravention of section 29(1)(a), (b) or (c), to imprisonment for a period of not less than 10 years, but not exceeding 25 years; (b) in the case of (i) the possession of an arm in contravention of section 2: (ii) a contravention of section 29(1)(d) or (e); (iii) a contravention of section 33, on account of being in possession of more than one hundred rounds of ammunition intended for firing in an arm contemplated in subparagraph (i); to a fine not exceeding N$ or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment; (c) in the case of

23 22 THE LAW OF THE GUN: AN AUDIT OF FIREARMS CONTROL LEGISLATION Controls on civilian possession and use Offences / penalties (i) a contravention of or failure to comply with any provisions of section 14, 22, 25, 26, 32 or 33 (not being a contravention referred to in paragraph (b)(iii) of this subsection); (ii) a contravention or failure to comply with any provision, direction or requirement of a notice issued under section 30; (iii) an offence referred to in subsection (1)(a), (b), (e), (f), (j) or (k), to a fine not exceeding N$ or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment, or, in the case of a second or subsequent conviction for an offence referred to in this paragraph, to imprisonment for a period not exceeding five years; (d) in the case of a contravention of any other provision of this Act, to a fine not exceeding N$4 000 or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment. (3) Notwithstanding anything to the contrary in any law contained, a magistrate's court shall have jurisdiction to impose any penalty provided for in this section. (4) Notwithstanding anything to the contrary in any law contained, no person shall on a conviction in terms of subsection (2)(a) be dealt with in accordance with section 297 of the Criminal Procedure Act, 1977 (Act 51 of 1977), if such person was at the time of commission of the offence in question 18 years of age or older. (5) The court convicting any person of an offence under this Act may, in addition to any punishment imposed for such offence (a) declare the convicted person's rights to any article in respect of which the offence has been committed, to be forfeited to the State; (b) if the convicted person is the holder or joint holder of a dealer's licence, cancel such licence. Record keeping and tracing Marking When? (import / export / transit / manufacture etc) SADC Firearms Protocol Art. 5 (3) (g), 9 (1) and (2) Requires provisions for the standardised marking and identification of firearms at the time of manufacture, import or export. Bamako Declaration Art. 3 A (iv) Recommends establishing at the national level the responsible management of licit arms. UN Firearms Protocol Art 6 (2) Requires the marking of firearms prior to their disposal. Art. 7 (1) No licence to possess an arm shall be issued unless the arm has the manufacturer's serial number or any other number by which it may be identified, stamped or engraved on the metal of the arm, excluding the barrel in the case of a pistol: Provided that the Inspector-General may, subject to any conditions imposed by him or her, direct that a licence to possess an arm be issued to a person without such serial number or other number stamped or engraved on the arm. (2) The Inspector-General may require any person who applied for a licence to possess an arm, to stamp or engrave on the arm in the manner contemplated in subsection (1), in addition to the legislation conforms to the regional and international agreements.

24 NAMIBIA 23 Record keeping and tracing Marking UN Programme of Action Art. 7 Recommends manufacturers apply an appropriate and reliable marking to each small arm and light weapon as an integral part of the production process. This marking should be unique and should identify the country of manufacture and also provide information that enables the national authorities of that country to identify the manufacturer and serial number so that the authorities concerned can identify and trace each weapon. Art 8 Recommends states adopt and enforce all the necessary measures to prevent the manufacture, stockpiling, transfer and possession of any unmarked or inadequately marked small arms and light weapons. Art 16 Recommends that confiscated, seized and collected small arms and light weapons are destroyed, provided that such weapons have been duly marked and registered. manufacturer's serial number or any other number referred to in that subsection, such identification number as the Inspector-General may determine. How? stamping / engraving? where on weapon? with what? (unique alphanumeric symbol / identifying country and manufacturer) SADC Firearms Protocol Art. 9 (1) and (2) UN Firearms Protocol Art. 8 UN Programme of Action Section II Art. 7 The agreements require specific provisions for a unique number to be marked on the barrel, frame or slide at the time of manufacture or import. Such information must permit identification of country of manufacture and manufacturer. regional and international agreements as there is not specification regarding the marking needs. Record keeping and tracing Record keeping Description of record keeping specifications SADC Firearms Protocol Art. 5 (3) (d) Requires state parties to Art. 1 "register" includes a register kept by means of a computer as defined in section 1 of the

25 24 THE LAW OF THE GUN: AN AUDIT OF FIREARMS CONTROL LEGISLATION Record keeping and tracing Record keeping (what? where? how? by whom? for how long? when must authorities be provided with information?) incorporate into their national laws as a matter of priority the regulation and centralised registration of all civilian owned firearms in their territories. SADC Firearms Protocol Art. 8 (d) State owned firearms requires state parties to establish systems to verify the validity and authenticity of documents issued by licensing authorities in the Region. UN Firearms Protocol Art. 7 and 9 Requires the maintenance of records of markings and other information for not less than 10 years of firearms, ammunition and components that are necessary to trace illicitly manufactured or trafficked arms. Recommends records be kept of all de-activated firearms. UN Programme of Action Section II Art. 9 Recommends ensuring comprehensive and accurate records are kept for as long as possible on the manufacture, holding and transfer of small arms and light weapons. Records should be maintained and organised to facilitate accurate and prompt information retrieval. Bamako Declaration Art. 3 A (iv) Recommends establishing at the national level the responsible management of licit arms. Computer Evidence Act, 1985 (Act 32 of 1985); Art. 41 (1) The Inspector-General shall keep a register in which he or she shall cause to be recorded such particulars as may be prescribed or as may from time to time be determined by the Minister, in respect of such matter to which this Act applies or relating to the forfeiture or disposal of arms or ammunition under any other law or relating to arms or ammunition in general as may be prescribed or as may be so determined. relevant international and regional agreements, as there are inadequate record-keeping provisions with respect to all civilianheld firearms. Record keeping and tracing Offences / penalties UN Firearms Protocol Art. 5 (1) (a-c) (2) (a + b) Requires the criminalisation of illicit manufacturing of and trafficking in firearms, their parts and components, and of falsifying or illicitly obliterating, removing or altering markings. Art. 38 Any person who (b) makes any false entry in any register to be kept under section 20 or furnishes any false information in any return to be rendered under that section; (d) contravenes or fails to comply with any provision, direction or requirement of any notice issued under this Act; international and regional agreements as it does not explicitly make it an offence to tamper with markings.