Researcher4103: The disposal of assets in the MoD in not properly defined. For this reason, effective controls over the disposal of assets, and information on these disposals, and the proceeds of their sale are difficult to ascertain. This is because information with regards to disposals is not publicly available. For one disposal it was reported by Defence Web in 2012 that the MOD was going to dispose of an old flagship that used by the Navy by way of auction. The ship was estimated at N$525 000.

On the other hand, the OAG has reported that the MoD does generate a considerable income through the disposal of its assets such as furniture and motor vehicles. However, what is not clearly outlined even by the OAG is the manner in which these assets are disposed. This might be an indication of lack of control in asset disposal although there is no reported evidence to support this.

There is no speculation reported in the media or among civil society organisations about corruption in asset disposals.

Researcher4103: The OAG, the Public Accounts Committee (article 59 of the Namibian Constitution) , Ombudsman and the Parliamentary Committee on Defence and Security (article 59 of the Namibian Constitution) are the legal bodies that are supposed to scrutinize the disposal of assets by the MoD.

The Ombudsman is compelled by the Constitution and the Ombudsman Act (Act 7 of 1990) to receive and investigate complaints. No complaints have been reported to the Ombudsman relating to independent and transparent scrutiny of asset disposals conducted by defence establishments. Yet of all the three bodies it is only the OAG that has been active in scrutinising - though to a very limited extent - the sale of assets by the MoD.

There are no defence establishments that are tasked with this mandate. Therefore, reliance is placed on the over stretched OAG and to a certain extent CSOs to highlight any anomalies in the disposal process. For example in the 2011 Audit Report the OAG reported inter alia that:

&quoute;This year the Ministry did not collect revenue generated from sales of Serviceable Stores and Equipment&quoute;. This is an indication of asset disposal that the OAG was able to ascertain during an audit. Only the reports of the OAG are published as far as this matter is concerned.

In the 2014 State of the Nation Address, President Hifikepunye Pohamba said that Namibia is in the process of advancing and refining the procurement process and introducing e-procurement. However, no mention was made to introduce the e-disposal as a way of fighting corruption not only in the MoD but also in the government as a whole.

Researcher4103: In the 2013/2014 budget a total of N$8 billion (US$ 800 million) was allocated to the defence, security and public order the Minister of Finance. Of the US$800 million there is no information from the NCIS of how much it received. For instance the Namibian reported that:

&quoute;Minister for Presidential Affairs Dr Albert Kawana refused to give any detail on the N$69,43 million allocation to the National Central Intelligence Service (NCIS) in the annual budget, and this does not contribute to transparency or good governance. Kawana said that &quoute;for obvious security reasons, do not expect me to elaborate further&quoute; when motivating the budget vote. His only comment was: &quoute;The NCIS contributes to the enjoyment of life by the Namibian people in a safe and secure environment, where they can pursue their activities without the threat of violence and crime&quoute;. This is clearly not an acceptable explanation&quoute;.

This is an indication that there is lack of transparency and accountability on the spending on secret items relating to national security and the intelligence services. Although this statement was said in 2007, there is no evidence to suggest that this position has changed since then.

Researcher4103: There is no evidence that the Standing Committee on Foreign Affairs, Defence and Security, which is responsible for the affairs of the NCIS, receives information with regard to secret defence or secret security expenditure.

There have been allegations that some secret defence expenditures have been used in the procurement of arms. For instance the opposition parties alleged that some arms were bought secretly from Saudi Arabia and taken to the NCIS. The arms were allegedly meant to be fitted with silencers. Both the government and the NCIS denied these allegations but did not deny or admit that a trip to Saudi Arabia was undertaken.&quoute;

In the 2015/2016 budget the NCIS has been allocated N$180.6 million dollars. According to the Minister of Presidential Affairs Kapofi:

&quoute;Told the National Assembly on Friday that the money being spent on the NCIS is supposed to help the agency detect and identify threats and potential threats to the security of Namibia and to contribute to the maintenance of peace, security and stability in the country.&quoute;

No further details were given to the Parliament or any other organ with regards to the details of the expenditure of N$180.6 million dollars.

Researcher4103: The audit reports for the NDF, Nampol are carried out yearly by the Office of the Auditor General under the umbrella of the Ministry of Defence. These are presented to the legislature and debated in parliament as per the information available. The problem is that these reports are presented one year after the audit is done.

However, what is clearly not submitted to Parliament is the audit report of the secret service, the NCIS. There is no evidence that the NCIS is audited, if it is indeed audited then the audit reports are kept secret and the findings are not publicly available neither are there debated in Parliament. One of the reasons given by the Minister of Presidential affairs on why the NCIS cannot be debated publicly like other departments is the fact that the NCIS deals with issues of greater national security. In the 2014/2015 parliamentary budget a leader of one of the opposition parties called for the slashing of the defence budget. It is reported in the New Era that:

&quoute;Swanu President Usutuaije Maamberua made the remarks during this week's parliamentary debate on the 2014/15 budget. The Ministry of Defence received the second highest allocation for 2014/2015 of N$6.6 billion. &quoute;We must cut from the defence budget and re-allocate it to the health ministry so that they can reintroduce casualty services at the Windhoek Central Hospital&quoute;.

Researcher4103: The status of the off-budget expenditure is unclear in Namibian law.

There is no legal provision against it, however, in practice it seems that the off-budget expenditures are tolerated but only to a limited a extent. The Minister of Finance and Auditor General have alluded to and castigated off-budget expenditure not only for the defence but other ministries was well. What this means that is that there must be a procedure available for off-budget expenditures that is why the Minister of Finance was against those ministries that had embarked on off-budget expenditure.

Researcher4103: There is no evidence of any off-budget military expenditures in the MoD budget, although there is a risk they exist.

Both the Minister of Finance and the Office of the Auditor General have made sweeping general remarks against off-budget expenditures but not directed at the defence sector specifically. Additionally, there is no other evidence from the media or CSOs, which links the off-budget expenditures to illicit economic activity.

Researcher4103: In law, there are provisions regulating mechanisms for classifying information on the grounds of protecting national security. However, there is no evidence that they are subject to effective scrutiny.

These laws are the, Defence Amendment Act (Defence Amendment Act (Act 1 of 2002) , which amended the South African Defence Act (Act 44 of 1957) Namibia Police Act 19 of 1990 and the Namibia Central Intelligence Service Act, 1997 (Act 10 of 1997). In addition there is the Protection of Information Act of 1984.

These are the regulating mechanisms for classifying information on the grounds of protecting national security. They do not, however, provide the process of classifying information on the grounds of protecting national security. There is no evidence of effective scrutiny.

Researcher4103: The MoD in Namibia owns three known and publicly declared business enterprises. These are August 26, Sea Side Hotel Spa and Mile 4 Caravan Park. August 26 Holding Company (PTY) Ltd is a 100 percent government owned company incorporated under the company act, (act 61 of 1973) on the 14th of August 1998. The MoD is the shareholding ministry on behalf of the government of the Republic of Namibia, and Brig.Gen.(rtd) JV Auala is its Chief Executive Officer. August 26 Holding is an umbrella company for the national defence industry. The company is run on pure and sound business principles, with subsidiaries open for joint ventures with other companies or private individuals and it may buy and hold shares in any viable business for the benefit of the shareholder and the country’s economy in general. Mile 4 Caravan Park is also involved in the hospitality industry and it is based in the same city with Sea Side Hotel Spa.

August 26 Holdings subcontracted August 26 Logistics, a company it holds a 51% stake in, alongside two private investors. The ministry and the two individuals have declined to give details about the process followed to set up the contract. Former Windhoek mayor Matheus Shikongo has emerged as the sole Namibian civilian shareholder in the August 26 Logistics military company. August 26 Logistics was sub-contracted by the August 26 Holdings, a 100% government-owned company, to supply the NDF with food

The details of their operations from a business point of view are transparent. However, what is not transparent is the manner in which finances are administered.

According to a report in the Mail and Guardian:

&quoute;The Namibian Defence Force (NDF) is building a shadowy business empire that does not account to the public or Parliament, and is seen in some quarters as a potential threat to the country’s democracy. The secretive conglomerate is August 26 Holdings, formed by the defence ministry in 1998. It initially warehoused rights in a controversial diamond mine in the Democratic Republic of Congo (DRC), but has since spread its wings by launching eight industrial subsidiaries: August 26 Logistics, Windhoeker Maschinenfabrik, August 26 Industries, Sat-Com, August 26 UBM, August 26 Textile and Garment, NamForce and Agri-Tour. Despite landing government contracts worth billions of rands, August 26 has never produced an annual report, is not publicly audited by the auditor general and has never appeared before a parliamentary committee to account for its activities&quoute;.

As explained earlier on this may lead to the conclusion that there is no transparency in the operations of these companies.

Researcher4103: Military owned businesses are not subject to transparent independent scrutiny at a recognised international standard. This is supported by the report published in the Mail and Guardian in December 2014 when the Minister of Defence refused to answer questions regarded the commercial activities of military owned businesses . According to the Mail and Guardian:

&quoute;The Namibian Defence Force (NDF) is building a shadowy business empire that does not account to the public or Parliament, and is seen in some quarters as a potential threat to the country’s democracy....The acting chief executive of August 26, Josiah Kasheeta, also refused to give information about the company, citing security reasons. “Since we deal with defence and security of the country, we do not want to expose ourselves.”...Last year, August 26 Logistics found it itself at the centre of a storm over procurement irregularities that allegedly benefited the cronies of military top brass&quoute;.

Military owned businesses are not subject to domestic transparent scrutiny. It follows that they are not subject to transparent independent scrutiny at a recognised international standard.

Researcher4103: There is some evidence of unauthorised private enterprise by military or other defence ministry employees. Such activities are punishable in terms of Public Service Act 13 of 1995: Section 25(1)(k), which states that:

&quoute;It constitutes misconduct whenever any member of the public service “without having first obtained the permission of the permanent secretary concerned, discloses otherwise than in the performance of his or her official duties any information gained by or conveyed to him or her by virtue of his or her employment in the public service, or uses such information for any purpose other than the performance of his or her official duties, whether or not he or she discloses such information.”

The government has put in place legal mechanisms and institutions that are capable of dealing with matters of unauthorised private enterprise by military or other defence ministry employees. These mechanisms include but are not limited to the ACC, Ombudsman, the PG, OAG and the Judiciary. Furthermore, legislation such as the POCA, FICA, MoD, Act, ACC Act and relevant international instruments such UNCAC also come into play.

Since there have not been such reports one cannot measure or comment on the government's reaction. There are no media or CSO reports to this effect either.

Researcher4103: The Minister, Chiefs of Defence and single Service Chiefs have made strong public commitments to weed out corruption in the NDF and build a military that is ethical in conduct and affairs.

In a very recent show of that commitment, there were allegations of corruption amongst senior top defence officials who were promoting their relatives at the expense of other worthy military personnel. According to the Namibian Sun &quoute;A group of junior and mid-level NDF officers, [are] alleging rampant irregularities and corruption in the country's armed forces. Tribalism, favouritism and regionalism in the NDF are the causes of death of some hardworking members whose efforts are not given due recognition.

&quoute;We are calling on President Hifikepunye Pohamba to intervene to root out this disease before it destroys the whole force&quoute;, they said before listing examples of alleged nepotism, corruption and favouritism. They alleged that NDF members are promoted based on their relations either with senior NDF officers or high-ranking politicians. Some of those promoted do not even know anything about the military, they said. They further alleged that this trend has mostly affected the army, where there seems to be no clear criteria for selecting candidates for promotional courses. It is alleged that nepotism affects even the selection of officers to be sent on UN observer and peacekeeping missions. Only those who are related to senior officers or their good friends are selected, it is alleged&quoute;.

The reaction of the MoD was a statement released by the Permanent Secretary of the Ministry of Defence who said these allegations were serious and a thorough investigation would be instituted. The findings of the investigations or its set up seem not to have been made public, however. Therefore, it is not clear whether the investigations have begun or not.

Researcher4103: Personnel found to have taken part in forms of bribery and corruption could face suspension, demotion and criminal prosecution,but these sanctions are either selectively applied or not fully implemented especially when it involves the top brass of the military.

The most testing case was that Martin Shalli the former head of the NDF who alleged to have been involved in a corrupt deal. Instead of being suspended or dismissed or prosecuted, he was allowed to resign with full military honours. Despite the overwhelming evidence, the NDF did not invoke any of these measures. This is a clear demonstration that the measures are not being implemented.

Another case involving bribery and corruption of the top level of the military which indicated the lack of serious implementation of these measures is the US$ 500 million tender for the supply of food to the NDF for the next 10 years. According to the Namibian &quoute;The ministry, this year, scraped the conventional way of awarding tenders for the supply of food to its military bases in the country to various companies after allegations that top military officers had set up businesses to compete for the contracts. The government instead gave the entire contract to its parastatal, August 26 Holdings, for 10 years. August 26 Holdings then subcontracted August 26 Logistics, a company it holds a 51% stake in, while the remaining 49% is held by Shikongo and a South African businessman Sarel Oberholzer (hold 24% and 25% respectively). The ministry and the two individuals have declined to give details about the process followed to set up the contract. Former Windhoek mayor Matheus Shikongo has emerged as the sole Namibian civilian shareholder in the August 26 Logistics military company, though some documents have stated that he will be fronting for several of his South African business partners. August 26 Logistics was sub-contracted by the August 26 Holdings, a 100% government-owned company, to supply the NDF with food.&quoute;

It is reported that in return for this transaction senior staff were allegedly paid US$ 200 000 and additional US$10 000 was promised. Despite these allegations the government and the MoD have not made a commitment to deal with this case in such a manner as to bring the public into the know-how. Furthermore, it has been reported the ACC is reluctant to probe this transaction. The basis for this reluctance is not known.

According to the Namibian Sun &quoute;The Anti-Corruption Commission (ACC) will not be investigating the awarding of a N$5 billion tender to August 26 Holdings to supply military bases with food rations. However, the commission says it is continuing with its investigations into allegations that some army generals awarded themselves a N$1.5 million tender, also to supply food rations to the army, as was reported earlier this year&quoute;. The reason for the refusal to investigate is now known and the ACC has not pronounced its official position in this matter.

Researcher4103: There are no legal mechanisms for whistle blower protection in the country.

&quoute;There is an urgent need for Namibia to put in place a law to protect whistleblowers&quoute;, according to Paulus Noa, Director of the Anti- Corruption Commission (ACC), speaking at the launch of the Institute for Public Policy Research (IPPR)’s 10th research paper titled Protected Disclosure: Informing the Whistle-blowing debate in Namibia. Noa has on numerous occasions and platforms over the years stated that the anti-graft legislative environment is in need of whistleblower protection provisions.

According to the 2011 Namibia National Urban Corruption Perception Survey conducted by the ACC, 67,5% of the respondents who were aware of an act of corruption did not report it. When asked why they had not reported an act of corruption they knew of or had come across nearly 43% of the respondents answered that they feared victimisation&quoute;.

It is against this background that there is no whistleblowing protection for those in the military and defence ministries. This has been exacerbated by the fact that &quoute;In terms of the Public Service Act, a public servant commits an offence if they disclose information to any person without first obtaining permission from the Permanent Secretary of a particular ministry.

This provision does not encourage whistleblowers to report on wrongdoings in the public service for fear of victimisation and harassment&quoute;.

Researcher4103: Namibia does not have a precise definition of sensitive positions.

However, it is not arguable that heads of the defence forces, navy and the security are key sensitive positions. There is special attention paid to the selection, time in post, and oversight of personnel in sensitive positions in the army. The promotions in the army are the most widely reported. For example, Namibia has a new Army Commander Tomas Hamunyela.

According to the Namibia Sun:
&quoute;Hamunyela, who is the fifth commander of the Namibian Army, has 37 years of military experience and at the time of his latest promotion was Namibia’s Defence Attache to Zimbabwe. He had occupied that post since 2010. Before that he was a Deputy Army Commander from 2001 to 2011 and served as acting Army Commander from 2009 to 2010&quoute;.

According to Negonga, over sight is provided by the following:
&quoute;• The President is the commander-in-chief of the NDF and directs the Chief of the Defence Force during the state of national defence.
• The Parliament has legislative powers, approves the defence budget and reviews the President’s decisions to deploy defence forces in critical functions.
• The Minister of Defence directs the Chief of the Defence Force in executing his duty in times of peace.
• The Chief of the Defence Force enjoys executive military command of the armed forces&quoute;.

However, there is no information on officials and personnel in defence procurement, contracting, financial management, and commercial management.

Researcher4103: The number of military personnel is not known publicly. It has been estimated to be between 8000-9000. The Defence Web a leading defence news portal has put the figure of military personnel at 8000, Navy 500 and the paramilitary at 6000. The World Bank puts the combined number at 15 200. Non-military staff are employed in areas such as the legal department, health, telecommunications and other strategic areas that require expertise. However, the number of civilians employed in the army is also not accurately known in public.

However, these numbers are available at MOD, therefore, any of the above scores do not do justice to the question and the answers that the research revealed.

Researcher4103: The pay rates for civilian and military personnel are openly published.

Publications are made through circulars that are released by the Office of the Prime Minister. The most recent was released on 1 April 2013 which is circular no 6 of 2013 – Implementation of JEG, featuring a range of salaries comprising a variety of pay grades. For instance it details that Grade 2 N$432 181 – 458 634, Grade 3 N$399 269 – 423 707, Grade 4 N$368 863 – 391 440, Grade 6 N$248 234 – 296 663, Grade 7 N$203 638 – 243 367, Grade 8 N$167 054 – 199 645,Grade 9 N$136 550 – 163 779, Grade 10 N$111 571 – 133 819 and Grade 12 N$74 486 – 89 339.

Allowances are also published, including Management allowances (Housing and Motor Vehicle); Special Duty allowances; Professional allowances; Danger and Risk allowance (please see the link above).

The are published by the Office of the Prime Minister.

Researcher4103: MoD always pays its personnel on time, with the system of payment being well established. Salaries are paid directly into the bank accounts of the personnel unless there is a prior arrangement with regards to the payment of the salary. Other than that there is no reported evidence to contradict the timely payment of the salaries.

The is supported by the fact the OAG conducts annual audits and no such report has been published. Besides the military is part of the civil service of Namibia, and the government has always paid the civil servants on time.

There are no reports in the media or by the civil society organizations or even numerous trade unions which suggests otherwise. In addition no report to late payment of salaries has been reported by human rights organisations or even the international community.

Researcher4103: There is an established system for the selection of military personnel at middle and top management level.

The following is an extract of promotions that was published in 2013:
&quoute;Training level: Officer Cadet/Midshipman Grade 12 (or equivalent) Certificate on NQF L3 Entry post:
2nd Lieutenant/Ensign Grade 12 (or equivalent) Certificate on NQF L3 Successful completion of Officer Cadet training course

1st Promotion post: Lieutenant/Lieutenant JG (N) Grade 12 (or equivalent) Certificate on NQF L3
2 years service as Second Lieutenant Passing of the Platoon Commanders’ or equivalent course

2nd Promotion post: Captain/Lieutenant (N) A National Diploma on NQF L6 4 years service as Lieutenant/Lieutenant JG (N) Passing of the appropriate training course

3rd Promotion post: Major/Lieutenant Commander A B Degree or equivalent qualification on NQF 7 Namibian Defence Force - Officers 4 5 years service as Captain Passing of the appropriate training course

4th Promotion post: Lieutenant Colonel/Commander A B Degree or equivalent qualification on NQF 7 4 years service as Major/Lieutenant Commander Passing of the appropriate training course

5th Promotion post: Colonel/Captain (N) A B Degree or equivalent qualification on NQF 7 4 years service Lieutenant Colonel/Commander Passing of the appropriate advanced courses.

Despite these laid down promotion there have been allegation that the above mentioned process is being violated with the effect of rendering the above process worthless. For instance it has been reported that &quoute;Unhappiness among security force members due to alleged favouritism, nepotism and tribalism is not a new trend and even in 2007 these allegations were made after certain promotions in the NDF. At that stage the then Chief of the Defence Force, Lieutenant General Martin Shalli, denied the allegations but several long-serving members of the NDF expressed unhappiness over the promotions, feeling their commanders have once again unfairly overlooked them. Their biggest complaint was about alleged favouritism, nepotism and tribalism in the NDF, which they said had become an 'incurable disease' within the force&quoute;.

Following these allegations the President set up a two men committee to investigate these allegations in 2012. It was led by the former War Veterans Minister Tjiriange Ngarikutuke , assisted by retired Police Lieutenant General Raonga Andima. The findings of these committee are yet to be made public.

In a similar report published by the Namibian Sun in 2013 it stated that:
&quoute;The Ministry of Defence has promised a comprehensive investigation into allegations levelled against the Namibian Defence Force (NDF) of corruption and nepotism from within its own ranks...They alleged that NDF members are promoted based on their relations either with senior NDF officers or high-ranking politicians...Some of those promoted do not even know anything about the military, they said.
They further alleged that this trend has mostly affected the army, where there seems to be no clear criteria for selecting candidates for promotional courses&quoute;.

It these allegations that taint the independence, transparency, and objective appointment systems for the selection of military personnel at middle and top management level.

Researcher4103: Promotions in the NDF are done purely on existing military processes as published by the Office of the Prime Minister in 2013.

The current system as espoused by the Office of the Prime Minister promotes its personnel using internal structures. There is no reported evidence to suggest that external bodies are used to determine promotions in the NDF. The details of the process of promotion are not made in public. What the MoD/NDF does is to state the figures of those that were promoted. However, complaints have been raised about favouritism in the promotion of MoD/NDF.

It is reported in the Namibian Sun that:

&quoute;The letter writers allege highly disturbing corrupt practices in the army's human resources department.
It cited as an example that an NDF cadet expelled from China after being caught with drugs last year; sons of high-ranking officers secretly sent to Zimbabwe and Botswana to undergo officer training at the expense of really loyal young soldiers who joined the force willingly, are really committed and hardworking&quoute;.

The fact that these allegations are being raised within the rank and file of the military is an indication of lack of objectivity within the MoD/NDF. There are no promotion boards outside of the command chain. There is no indication of strong formal appraisal processes. Furthermore no independent oversight exists. To conclude, there is indication of formal processes but not of boards and oversight of the promotions process.

Researcher4103: Namibia does not practice compulsory conscription. This is supported by the United Nations who state that &quoute;Namibia does not practice conscription or any form of forced obligatory service.There is no compulsory, forced or coerced recruitment into the Armed Forces&quoute;. According to the MoD recruitment into the NDF is voluntary.

Researcher4103: Namibia does not practice compulsory or voluntary conscription.

According to the ICRC &quoute; The Namibian Defence Force permit voluntary recruitment at the minimum age of 18 years. The Namibian Defence Force have adopted the following safeguards to ensure that recruitment of personnel at the age between 18 and 25 years is not forced or coerced.(a) Advertisements on the availability of military career opportunities in the Namibian Defence Force are placed yearly in the local print and broadcast for the purposes of inviting interested young men and women to apply.(b) As a standpoint the candidate is not obliged to accept the position if the Namibian Defence Force offer a particular position.&quoute;

Researcher4103: At national level it appears as if there is no evidence of &quoute;ghost soldiers&quoute; on the NDF/MoD payroll.

However, it has been reported that ghost soldiers do exist when army personnel is posted for international duties whether as part of an intervening army or as part of a peacekeeping force. In one such reported case Goredema observed that: &quoute;Along with Zimbabwean and Angolan counterparts, the Namibia Defence Force (NDF) intervened in support of then President Laurent Kabila in the civil war in the Democratic Republic of Congo (DRC). During the conflict, the army sustained casualties, in respect of which the Ministry of Defence paid out certain benefits to next of kin. It emerged that some claims were fraudulent. Ghost soldiers had been created, using false identification particulars lodged in the Ministry of Defence. The claims were made on the basis of the “Death of the non-existent soldiers in action in the DRC and Angola”. The Defence Force paid out several hundred thousand Namibian dollars&quoute;.

However, it seems as if no official record makes reference to these findings detailing whether or not any action was established to get to the bottom of these allegations. This took place quite some time ago however, and there is evidence of a robust payment system currently in place.

Researcher4103: Chains of command are separate from chains of payment.

There is no interference of diversion of funds. There is transparency in the manner in which the salary chain is administered. As noted by Mwange, &quoute;the fact that the defence budget is debated in parliament ensures transparency and accountability. This arrangement has created confidence in the operations of the military in Namibia.&quoute;

This acts as one of the checks and balances in order to ensure that the chain of command is separate from the chain of payment. The fact that Namibia's legislature is made of a bicameral system comprising of the National Assembly and the National Council is an added impetus of ensuring that the chain of command and the chain of payment is not infringed upon.

However, this not a published policy.

Researcher4103: Namibia has a Military Disciplinary Code whose purpose is to inter alia inculcate high level of integrity and discipline within the MoD/NDF. The Code is enacted in terms of section 39(1)m of the NDF Act. The Code is applicable to both the military and the civilians who are working under the MoD/NDF and the document is made available to the public.

The Code does not specifically create or target offences such as bribery and corruption but creates general offences which upon proper interpretation encompass the offences of bribery, corruption, gifts, hospitality and conflict of interest. For example section 20 deals with theft of public or other property; section 21 offences in relation to acquisition or disposal of public property. In addition section 34 states that &quoute; Any officer who behaves in a manner unbecoming the character of an officer commits an offence and is liable on conviction to imprisonment for a period not exceeding five years&quoute;. The Code places MoD/NDF employees to observe high standards in their conduct. Furthermore, section 46 of the Code provides that: &quoute;Any person who by act or omission causes actual or potential prejudice to good order and military discipline, commits an offence and is liable on conviction to imprisonment for a period not exceeding one year&quoute;. This provision supplements section 34. It seeks proscribe scandalous behaviour such as bribery, receiving of unauthorised gifts and hospitality, conflicts of interest, and post-separation activities which can be very detrimental to the MoD/NDF.

Oversight bodies are described in the Defence Policy as follows:

&quoute;The Parliamentary Standing Committees on Foreign Affairs, Defence and Security and the Cabinet Committee on Defence, Security and International Relations (CCDSIR) are bodies which were established to oversee the defence and security issues of the country. They also have to advise the Cabinet and the National Assembly on matters pertaining to defence and security. By virtue of their mandate, these bodies have oversight functions over the activities of the NDF&quoute;.

Researcher4103: Breaches of the Code are not effectively addressed.

This is supported by the following two leading examples: in the following two cases that have clearly shown conflict of interest namely, the Shalli case and August 26 Food Tender case. In the case of Shalli (former head of the NDF), after having been exposed in a conflict of interest transaction involving an estimated US$500 000, no action was taken against him by the military in terms of the Code. One who would have expected the President being the Commander in Chief of the NDF to hold him accountable for violating the Code taking into account Shalli's position. This was not done. However, the PG took the matter before court and it is on-going. It is reported as Shalli v The Attorney – General (POCA 9/2011) [2013] NAHCMD 5 (16 January 2013).

In the August 26 Army Food Tender case, it has been reported that the tender to supply food to the army for the next 5-10 years was awarded without going to tender. In the process top high ranking army officials were allegedly given large sums and other related gifts. No action has been taken to date since this was a violation of the Code. It is for this reason that the application of the Code is enforced selectively and it appears as if there is some political interference in its application. Therefore, the Code lacks credibility in the area of corruption, bribery and conflict of interest.

Researcher4103: Regular anti-corruption training does not take place for military and civilian personnel. The ACC which is the main anti-corruption body tasked with this mandate has not indicated this in its annual reports that are available online. For example in its 2012/2013 Annual report the ACC reports that:

&quoute;During the year 2012/13, the ACC held seminars and workshops with various Stakeholders such as the public and private officials, youth groups, traditional Leaders and church leaders as well as various officials from non-governmental Organizations&quoute;.

The ACC does not state specifically whether it conducts regular anti-corruption training for military and civilian personnel.

This is despite the fact that the MoD/NDF is involved in huge procurement deals and also a number of international assignments that are also prone to corruption. For this reason the former Ombudswoman of Namibia noted that &quoute;A lack of a clear strategic approach in combating corruption has been a serious oversight on our part. Therefore, corruption has not been debated as a public concern and therefore no clarity as to what action or practices amount to corruption and how it affects the social, political and economic development of our society&quoute;.

Researcher4103: There is no policy written down to make public outcomes of the prosecution of defence services personnel for corrupt activities. Section 119(2) of the Namibian Constitution states that:

'The Chief of the Defence Force shall make provision for a balanced structuring of the defence force and shall have the power to make suitable appointments to the defence force, to cause charges of indiscipline
among members of the defence force to be investigated and prosecuted and to ensure the efficient administration of the defence force&quoute;.

In a related article the Namibian reported that:

&quoute;A SCAM in which a Namibian Defence Force member used a promise of employment in the military to solicit payment from two people has landed him with a conviction on corruption charges and a fine of N$4 000.

Magistrate John Sindano convicted the soldier, Alfeus Phillipus (32), in the Windhoek Magistrate's Court on Thursday on two counts of corruptly receiving gratification as an inducement. Although Phillipus pleaded not guilty to the charges last month, he ended up admitting last week that he solicited payments from two women by promising that he could arrange employment in the NDF for them, and that he then used the money for his own benefit&quoute;.

This is due to the fact that corruption is part of criminal justice and it is treated just like any other criminal offence which is part of public law. As discussed in question 35, there is evidence that measures to address corruption are not consistenly enforced. In a recent case The Prosecutor General v Uuyuni (POCA 4/2012) [2013] NAHCMD 67 (12 March 2013), the court ruled inter alia that prosecutions are public proceedings unless an application and justification for &quoute;in camera&quoute; court hearing.

It is for this reason that whether the prosecution of corruption emanates from the MoD/NDF or whether it is being conducted by the PG the law makes it imperative for those findings to be made public unless that corruption case is matter of national security.

Researcher4103: Facilitation payments are strictly prohibited beginning with the criminal laws of Namibia as well the Defence Policy and Military Discipline Code.

According to the Corruption Tracker &quoute;Namibia’s law, in the form of the Anti-Corruption Act, is quite clear that bribery is not permissible (Sections 38, 40, 41, 42, 43) and the act of bribing foreign public officials is also criminalized&quoute;. In Namibia facilitation payments are classified as bribery and one who practices such is criminally liable.

Enforcement is an issue, as discussed in questions 35 and 50.

Researcher4103: Namibia's NDF does not have a military doctrine that specifically addresses corruption. However, it can be inferred from the Military Code that fighting corruption is an integral part of the NDF.

This is supported by the fact corruption is considered as an act that brings the NDF into disrepute and is punishable at law. For this reason the ACC held workshops in 2013 sensitizing the members of the NDF on corruption. In the same workshop, the ACC encouraged the members of the NDF to report and also members of the NDF were encouraged to expose corruption. A total of 1327 members of the NDF attended these workshops which were conducted in 13 military bases across the country. The content of the workshops was not available.

Researcher4103: There is no training in corruption issues for commanders at all levels in order to ensure that these commanders are clear on the corruption issues they may face during deployment.

The first known training on corruption for the members of the NDF was conducted in 2013 by the country's leading anti corruption body the ACC. These education workshops were conducted in 13 military bases. A total of 1327 members of the NDF attended. However, the composition of the members of the NDF is not clear, nor is it clear if these were focused on during operations. In other words the number of commanders who attended was not recorded and whether the commanders were part of the participants.

It appears that this training is not strictly enforced when in the field. For example a former NDF commander Martin Shalli has been accused of corruption in the NDF tenders. His case is on-going before the court. He has since resigned. The fact that this commander is facing corruption prosecution may indicate his ignorance in corruption matters which can be attributed to lack of training in corruption matters, and the lack of enforcement of such training.

Researcher4103: Trained professionals are not deployed to monitor corruption risk in the field (whether deployed on operations or peacekeeping missions).

Namibia has participated in regional and international operations in SADC and on behalf of the UN. In addition it has also and continues to participate in national civilian operations such as rescue missions in disaster areas as well as community building. No reports of corruption on the filed have been reported. However, in all these operations there is no evidence that professionals are deployed to monitor corruption.

In 2012, PRESIDENT Hifikepunye Pohamba appointed a two-man team to investigate allegations of favouritism, nepotism and tribalism in the Namibian Defence Force (NDF) and Namibian Police.
The investigation is led by the special advisor of the Home Affairs Ministry, Ngarikutuke Tjiriange, assisted by retired Police Lieutenant General Raonga Andima.

Researcher4103: There are no guidelines or staff training, on addressing corruption risks in contracting whilst on deployed operations or peacekeeping missions, although the Military Code and the Defence Code prescribe the conduct of the NDF. Both documents emphasise integrity and high discipline of the NDF in the absence of the specialized guidelines and staff training on addressing corruption risks in contracting whilst on deployed operations or peacekeeping.

These documents are aimed at inter alia promoting integrity with the military personnel. The emphasis on integrity means that military personnel should shun corrupt activities whilst on deployed operations or peacekeeping missions.

Researcher4103: There is no evidence that PMCs are employed or contracted by the MoD/NDF.

This could be attributed to the small number the MoD/NDF and that the MoD/NDF has not been engaged in military combat ever since Namibia's independence in 1990. In addition, the MoD/NDF appears not to operate high technological sophisticated equipment which may require the help of PMCs.

Namibia does not have regulations that prohibit the contracting of PMCs, however. If the government decides to engage PMCs this will be done in accordance with the common law of contract and commercial law.

Researcher4103: Namibia does not have legislation that covers specifically defence and security procurement. The general laws of procurement encompass defence procurement. These laws are mainly, Tender Board of Namibia Act 16 of 1996, Tender Board Regulations 1996, Tender Board of Namibia Code of Procedure 191 of 1997, Regional Council Tender Board Regulations, Local Authority Tender Board Regulations and the Common Law. This legislation covers defence and security procurement.

In addition Namibia is in the process of promulgating The Procurement Bill. Once passed into law Namibia will be one of the few developing countries that has legislation on procurement. However the Bill in its current state does not specifically provide for defence and security procurement. Defence and security procurement are regulated in terms of the existing procurement legislation.

There are also provisions that exempt certain defence and security procurements from being conducted in line with the existing legislation. Procuring certain defence and security goods and services which are deemed to be sensitive are not acquired according to the existing legislation. Section 21 of Tender Board Act provides inter alia that: “The provisions of this Act shall apply in respect of the procurement of all goods and services, the letting or hiring of all things, the acquisition or granting of all rights and the disposal of all property by offices, ministries and agencies for or on behalf of the Government, except in respect of (a) the procurement, letting, hiring or disposal by (i) the Namibian Defence Force; and (ii) the Namibia Security Intelligence Agency, of security related goods, services and property; and (b) such category of procurement, letting, hiring, rights or disposal as may, on the recommendation of the Board, be prescribed by regulation for the purposes of being exempted from the provisions of this Act&quoute;. No specific items are mentioned beyond this, however.

Researcher4103: The defence procurement process from the identification of the needs, contract management and the paying off is disclosed to the public depending on what is being procured. The NDF in terms of the Tender Board Act is allowed to make its own procurement procedures as NDF procurements are not subject to the normal tender rules. In other words, it seems as if the procurement is of a small value, then the procurement process is disclosed to the public. If procurement is of high monetary value even though the goods being procurement are not of a sensitive nature, still the procurement process is not disclosed to the public. The food tender is a good example. According to the Namibian:

&quoute;The Tender Board of Namibia has said it never gave the Ministry of Defence an exemption in the N$5 billion food supply to the military that it awarded to a company partly owned by the defence force and a few private individuals.The revelation is contained in an email response to The Namibian yesterday by Tender Board spokesperson Leoni du Toit. “The Ministry of Defence did not apply for an exemption and no exemption was granted to the Ministry,” read Du Toit's email.&quoute;

What is not disclosed is the process of assessment of needs for the example given above. Due to lack of transparency in the defence procurement cycle process the NDF food tender was challenged in court by six other interested companies. However, the case is still before the court although it was ruled not to be urgent by the Court and that it should be treated like any other case.

However, the procurement of the jet fighters from China was deemed to be of a high security in nature and the procurement was similarly not disclosed to the public. For example no advertisements were published to solicit suppliers of these jet fighters. It was reported later on that the country had acquired jet fighters from China.

Therefore, the defence procurement cycle is disclosed on certain parts of the procurement cycle such as a call for tenders but not needs assessments. The needs assessments is the prerogative of the NDF as well as the contract implementation and sign-off, all the way to asset disposal.

Researcher4103: Defence procurement oversight mechanisms are in place but their effectiveness in fighting corruption has been criticised. These mechanisms exist both in terms of legislation and institutions, with the institutions in question being the PG, OAG, Ombudsman, ACC, Tender Board and the Judiciary.

The work of these institutions especially of the ACC and the PG which are the main bodies have been transparent and effective. The case of Martin Shalli the former Commander of the NDF has been cited as one of the leading cases that has given the ACC and the PG a thumbs up as far as defence procurement oversight mechanisms are concerned.

The Tender Board has been vocal arguing that the Ministry of Defence awarded the food tender without seeking authorisation. The procedure is that the Ministry of Defence should seek authorisation from the Tender board should it require exemption. Playing its oversight role the Tender Board castigated the actions of the Ministry of Defence. Furthermore, the judiciary in both the food tender scandal and the Martin Shalli case has played is role as an oversight body.

The Ombudsman has not investigated any defence procurement complaints, therefore, it is not possible to judge the effectiveness of this office in this area.

Researcher4103: Actual and potential defence procurement are made public depending on what is being procured.

For instance the procurement of the general good and services is published in the Government Gazette. This is supported by the following: &quoute;F1/5 - 5/2004 Description: Supply And Delivery Of Head Gear (Caps) to The Namibian Defence Force; Tender No: F1/5 - 6/2004 Description: Supply And Delivery Of Shoes to The Namibia Defence Force; Tender No: F1/5 - 7/2004 Description: Supply And Delivery Of Jerseys and Pantihouse to The Namibian Defence Force; Tender No: F1/5 - 8/2004 Description: Supply and Delivery of NDF Embroidered Ranks (Epaulettes And Sleeves Chevrons) For Field Dress to the NDF. These are examples of actual defence procurements that were made public.

However, what is not made public is the actual procurement cost for accountability purposes. The disclosure of defence purchases is not done as a matter of policy as such but a matter of practice, hence, its adherence is not strictly enforced. Even audits that are done by the OAG do not necessarily detail the defence procurement but does makes reference to defence purchases depending on the nature and importance and security sensitiveness of the procurement.

Researcher4103: The following general requirements should be complied with when applying for a defence tender: i) A valid original Good standing Certificate from Social Security (ii) A valid Good standing Certificate from Inland Revenue for tax purposes (iii) Registration of company from Ministry of Trade and Industry and (iv)Any other relevant document certificate required as per tender document.

In addition certain defence tenders require additional compliance specifications such as the criminal record both nationally and internationally of the prospective tenderers. However, there is no requirement as to the corruption cleanliness of either the company or its directors and or shareholders. In other words, there is no formal or legal requirement that the prospective should not have been convicted of corruption before.

In addition, there is no legal or formal requirement that the national or international subcontractors should be free from corruption either as an entity or as individuals. In other countries, there is a requirement to sign an anti corruption declaration or some countries incorporate as a standard clause in all government contracts, however, in Namibia this is not the case.

Examples of corruption on the basis of lack of procedure are the Martin Shalli case and the food tender case.

Researcher4103: Procurement requirements are guided by the national defence and security strategy. Chapter 8 of the Defence Policy states inter alia that:

&quoute;Namibia’s military strategy is shaped by the Constitution. The purpose and design of the strategy are to preserve the national security interests of the state, as well as to assist in stabilizing the domestic environment, in order to allow the nation to advance and prosper without the fear of threats from inside or outside of the country&quoute;.

The national defence strategy is not audited on its own. It is audited as part of the general annual audit carried out by the OAG. The results that the OAG releases relate to the entire operations of the Ministry of Defence and not specifically national defence and security strategy.

In addition NDF has the Development Plan (Strategy) as part of its Defence Policy. According to this Strategy:
&quoute; Defence forces all over the world use significant portions of national budgets to service defence needs. With the advent of democratic transformation that characterizes our generation, governments are urged to be prudent and reduce defence expenditures so that savings from this sector could be channeled to socio-economic development programmes&quoute;.

According to OAG 2011 Report:
&quoute;I certify that I have audited the financial statements of the Ministry of Defence for the financial year ended
31 March 2011 in accordance with the terms of Article 127(2) of the Namibian Constitution and Section 25(1)
of the State Finance Act of 1991.
In my opinion, the financial statements fairly represent the receipts and payments of vote 08 for the year ended 31 March 2011, and in all material respects the receipts and payments have been applied to the purposes intended by the National Assembly and conform to the authorities which govern them&quoute;.

According to the Procurement Policy as stated in the Defence Policy:
&quoute;The basic principle for the Procurement Policy is that the Ministry of Defence should purchase the best quality equipment, material, etc. available, provided that such equipment or material:

a. suits Namibia’s terrain, climate, personnel, storage, accounting and other requirements;

b. can be logistically supported, maintained and repaired in Namibia, as far as is practicable;

c. can be delivered to, or supplied in Namibia within the required timescale;

d. is available at the cost-effective all-inclusive price, and with the most favourable terms of payment.
103. Goods manufactured within the Republic of Namibia by Namibian owned and staffed companies will be given preference, provided that the above conditions are met.

However, as the actual blue print of the national security strategy is not publicly available, reliance is made on the Defence policy as discussed above. Furthermore, in the absence of the national security strategy, it is difficult to state with certainty whether procurement requirements derived from an open, well-audited national defence and security strategy.

The MoD's procurement strategy has historically been remarkably pragmatic in nature. Often the NDF has purchased useful and efficient platforms for their military, if somewhat glazing over long-term maintenance costs. This would be a bureaucratic inefficiency though, rather than willful corrupt activity.

Researcher4103: The genesis of defence purchases is not easy to ascertain. Whether these purchases are done from easily identifiable requirements depends largely on the availability of the defence strategy. This strategy is not publicly available. The defence budget does to a certain extent provide for some identifiable and quantifiable defence purchases as reflected in the OAG Audit Report. For instance in one OAG report the following amounts were allocated, Office of the Minister US$ 35 000, Administration US$ 1.3 million, Training US$ 13 700, Air Force US$ 297 000 and the Navy US$ 44 000. These are the figures provided by the OAG. The shortcoming is that there is no clear streamline with regards to the number of items and even the identity of the items that were purchased be it services, works or goods. Without this kind of information it is difficult to determine whether there any opportunistic purchases or not that are prone to corruption.

In addition, the NDF in 2011 bought three helicopters. According to the Namibian:
&quoute;THE Namibian Defence Force (NDF) will soon see its first Indian-manufactured military helicopter, a Cheetah Utility Chopper, on local soil, after it was handed over to Defence Minister Charles Namoloh at the Aero India 2011 Air Show in Bangalore on Wednesday.

The Cheetah is the first of three helicopters included in a N$71,5 million deal signed between the NDF and the India's aerospace company Hindustan Aeronautics Limited (HAL) in 2009. The two remaining helicopters, Chetak helicopters, will be delivered to Namibia in June this year (2010).
Namoloh told The Namibian yesterday that the Namibian Government had bought the helicopters to replace the NDF helicopters that had crashed in the Democratic Republic of Congo during the peacekeeping mission in that country&quoute;.

This is evidence that the Ministry of Defence and Armed Forces do base at least their major purchases on clearly identified requirements.

Researcher4103: Defence procurement is generally conducted with the principles of open tendering where the services, works or goods to be procured are not deemed of sensitive security in nature as noted by IPPR. Section 102 of the Defence Policy states that: “The basic principle for the Procurement Policy is that the Ministry of Defence should purchase the best quality equipment, material, etc. available, provided that such equipment or material: (a) suits Namibia’s terrain, climate, personnel, storage, accounting and other requirements; (b) can be logistically supported, maintained and repaired in Namibia, as far as is practicable; (c) can be delivered to, or supplied in Namibia within the required timescale; (d) is available at the cost-effective all-inclusive price, and with the most favourable terms of payment. Goods manufactured within the Republic of Namibia by Namibian owned and staffed companies will be given preference, provided that the above conditions are met”. This all that the Defence Policy states in so far as procurement is concerned.

Open tendering is the default tender system but the Minister of Defence may by application to the Tender Board opt for selective or other forms of tendering. The Food Tendering case exposed these gaps as the tender was not conducted as an open tender but the Minister of Defence opted to exercise his powers in terms of the Ministry of Defence Act and appoint August 26 as the sole provider of the tender. This was challenged in court and the High Court as per Justice Maphious Cheda upheld the Minister's prerogative and in the process trumped the principles of open tendering. However, the decision of the Minister to award the tender without open tendering is still under review at the High Court.

Researcher4103: Tender Boards are subject to regulations and code of conduct. Their decisions are also subject to independent audit including administrative review by the Court.

In this regard, apart from the Acts, the Tender Board Regulations, the Tender Board Code of Procedure, Regional Tender Board Regulations and the Local Authority Tender Board Regulations are applicable to both the Tender Boards and the suppliers. A number of cases have challenged the decisions of the Tender Board for example, Coetzee v Tender Board and others (Case No 01/05/A19/C); Shetu Trading CC v Chair of the Tender Board of Namibia and Others (A 352/2010) [2011] NAHC 188 (4 July 2011);AFS Group Namibia (Pty) Ltd v Chairperson of the Tender Board of Namibia and Others (A 55/2011) [2011] NAHC 184 (1 July 2011);Serenity Manufacturing v Minister of Health and Social Services and Another (SA 23/2006) [2007] NASC 6 (19 November 2007).

In addition the Parliamentary Committee of Public Finance acts as an oversight body as the Tender Board and all matters of public finances fall under the ministry of finance. Furthermore, there is the OAG that fills in the gap where other over sight bodies may fail.

The IPPR has suggested a specific for complete body that oversees the operations of the Tender Board.

Researcher4103: The Anti-Corruption Act is the principal legislation that is used to prohibit collusion and punish those that are involved in such practice. Although, no collusion has been reported in the procurement of NDF services, works or goods. In addition there is the Prevention of Organised Crime Act as well the Financial Intelligence Act. As can be seen these laws are of general application and are not designed specifically for fighting corruption in the NDF/MoD. Furthermore, there do not have specific sections that deal with defence procurement. Section 46 of the ACC Act provides that: “A person who (a) attempts to commit an offence under this Chapter; (b) conspires with any other person to commit an offence under this Chapter; or (c) abets, induces, incites or commands another person to commit an offence under this Chapter, commits an offence and is, on conviction, liable to the punishment prescribed for that offence by this Act.”

Furthermore, section 23(1) of the Competition Act states inter alia that:
Agreements between undertakings, decisions by associations of undertakings or concerted practices by undertakings which have as their object or effect the prevention or substantial lessening of competition in trade in any goods or services in Namibia, or a part of Namibia, are prohibited, unless they are exempt in accordance with the provisions of Part III of this Chapter&quoute;.

The above sections appear to the best sections that deal with collusion and can be invoked for matters of collusion in defence procurement. However, no cases of collusion in defence procurement in order to test the enforcement of the above provisions. According to the Villager which one of the newspapers in Namibia:
&quoute;Collusive tendering is prohibited in Namibia and can be investigated and prosecuted under the competition Act 2 of 2003. Currently, there has not been mention of many of such cases locally.&quoute;

Researcher4103: Defence procurement staff are organised into a professional staff department called the Directorate Division Procurement Research and Development that is headed by a (Rtd Colonel). There is no evidence that procurement staff, in particular project and contract managers, are specifically trained and empowered to ensure that defence contractors meet their obligations on reporting and delivery. The operations of the procurement staff and their level of training or expertise is not made public.

There is no evidence that defence procurement staff are specially trained in order to ensure that defence contractors fulfil their obligations. However, the new Procurement Bill is likely to improve in that it has established special procurement units that will be based in all ministries. The proposed procurement unit according to the Bill will be run by qualified professionals in the procurement fields which will in turn make the defence procurement more competent and ensure that contractors oblige to their terms of contracts. The Procurement Bill is still before Parliament.

Lastly, there is no evidence of limited training and that staff are rotated in and out from other functions. It is not clear whether there are any significant staff shortages.

Researcher4103: There are EW mechanisms in place to allow companies to complain about perceived malpractice in procurement, and companies are protected from discrimination when they use these mechanisms.

Most aggrieved companies in defence procurement have four main mechanisms to air their complaints. They can report to the Competition Commission, Tender Board, ACC, or approach the Judiciary. The last two are the most used with the later being the most common. For example in the Food Tender case six companies approached the High Court in challenging the awarding of a tender to August 26 Holdings. The case is still before the High Court.

The fact that six companies were willing to openly challenge the MoD/NDF may be regarded as an indicator that there is sufficient protection for these companies when it comes to future procurement in the MoD/NDF. The Namibian Tender Board has also adjudicated over a number of disputes that aggrieved companies have raised with regards to the procurement processes.

The Competition Commission can be approached by companies that suspect issues of collusion or other procurement practices such as bid rigging in defence procurement. The ACC can be approached by those companies that suspect corruption within the defence procurement process.

The companies that have used these mechanisms have not reported any discrimination after having made the complaint.

Researcher4103: In the event that a supplier has been found guilty of corruption a number of sanctions can be invoked. Debarment is one such sanction that is available. Under debarment the supplier is prohibited either for life or for a specific time in engaging in any business with the government. Debarment can either be directed at the company in question or it can also be directed or extended personally to the directors or shareholders of the company. The Tender Board is the responsible for implementing these sanctions.

In the same context, the Court or the procuring entity disregards that the company is a separate legal entity and chooses to impute liability personally on those involved. Another sanction is that of suspension of either the company or the directors or shareholders of the company under consideration. This is also implemented by the Tender Board or the Judiciary. Under such a scenario the company or the directors/shareholders as the case may be will be suspended for a stipulated time in doing any business with the government.

In some rare cases the company or the directors/shareholders may be liable to a fine but still continue to do business with the government. The issue of fines is highly discouraged as it is perceived not to be a sufficient deterrent in fighting corruption in the defence procurement. The ACC Act can also be used in order to criminalise those suppliers involved in corruption as an additional measure. Some examples of these sanctions are stated in the following cases: AFS Group Namibia (Pty) Ltd v Chairperson of the Tender Board of Namibia and Others (A 55/2011) [2011] NAHC 184 (1 July 2011); Shetu Trading CC v Chair of the Tender Board of Namibia and Others (A 352/2010) [2011] NAHC 188 (4 July 2011); Lameck and Another v President of Republic of Namibia and Others (A 54/2011) [2012] NAHC 31 (20 February 2012) http://www.saflii.org/na/cases/NAHC/2012/31.html

Researcher4103: It is unclear if the MoD/NDF has been involved in offset agreements or contracts.

However, should the MoD/NDF be involved in offset negotiations, it is very unlikely that there will be due diligence on corruption risks. This is supported by the weak regulation of defence procurement that is currently in place as evidenced by the alleged corruption that took place when NDF was involved in the DRC. In addition the domestic cases of corruption in the MoD/NDF and the failure by the MoD/NDF to employ professional procurement personnel is another demonstration that Namibia does not have the capacity to address corruption risk by imposing due diligence requirements on contractors.

Researcher4103: It is unclear if the government make public the details of offset programmes, contracts, and performance. This may be attributed to the fact MoD/NDF has not been involved in any form of offset contracts.

If the government is involved in any offset contracts then such information is kept secret. This is supported by the evidence all the oversight bodies such as OAG, ACC, Parliamentary Committee on Defence, Parliamentary Committee on Public Accounts and the Ombudsman do not make reference to military offset contracts.

Researcher4103: There is no information to the effect that the government is involved in offset contracts in order for one to determine whether these contracts are subject to normal rules of competition as the main contract.

Researcher4103: The government controls the company's use of agents and intermediaries in the procurement cycle.
The use of agents is regulated in terms of the ordinary law of contract (private and substantive) as well the law of sale and agency that is the mechanism of control. Although there is no express policy that regulates the use of agents, there is more than enough legal precedent to the effect that where the agents have acted outside the instructions of their principal, the agents will be liable.

Furthermore, where the agents have acted in compliance with the instructions of the principal that principal cannot deny that liability. In other words the principal is stopped from absolving from his obligations. However, where both the agent and the principal act in an illegal contract like corruption, then both of them are criminally responsible for their actions.

The Tender Board and the Courts exercise oversight the use of agents. The Namibia Courts have been consistent in applying these legal principles strictly as was stated in Wellmann Plaintiff V Hollard Insurance Case No: I 858/2010 High Court Of Namibia; African Personnel Services v Government of Namibia and Others Nedbank Namibia Ltd v Namibian Tuberculosis Association and Others.

Researcher4103: Finer details of arms procurement details such as the timelines, interest rates, commercial loans or export credit agreements are not made publicly available prior to the signing of contracts. The financing of major arms deal especially on the nature of the equipment to be bought is not made public. Such information usually finds its way into the public domain only in cases where there have been allegations of corruption or some irregularities in the deal. For instance the contract between a Chinese company Poly Technologies Inc, and the MoD/NDF for the supply of defence equipment with US$126.4 million worth of equipment, which included the flagship logistics support vessel NS Elephant only came into light after the then head of the NDF Martin Shalli was accused of corruption. However, details of the entire financing of this deal was not made public.

According to the Anton Kruger and Guy Martin &quoute; Navy has received a variety of vessels including two Namacurra class harbour patrol craft from South Africa in 2002, a Brazilian corvette in 2004, a Brazilian patrol craft in 2009 and an offshore patrol vessel from China in 2012&quoute;.

Researcher4103: The government does not formally require that the main contractor and the subcontractors commit to anti corruption practices. This is evidenced by the fact the contract between the main contractor and the government does not have an anti corruption clause or a commitment by the main contractor not to engage in corrupt practices. The current situation is vulnerable to corruption especially the fact that there are no express consequences for engaging in corrupt activities for both the main contractor and the subcontractors.

As noted by Musariri &quoute;The Tender Board (TB) of Namibia says it is trying to stem out corruption in the country’s procurement by blacklisting certain companies and asking those that fail to deliver to repay the money provided to them for projects&quoute;. It has been reported that in 2012 US$1,39 billion tenders were issued US$920 million of those tenders, were exempted from going through normal procurement procedures. This is exceptionally too high and there is no indication of how much was subcontracted and how much was lost through corruption in defence procurement.

The anti-corruption measures that are applicable to the main contractor automatically applies to the subsidiaries and sub-contractors. As explained earlier this is not a formal requirement but it flows from the government's existing stance of anti-corruption.

Researcher4103: It is not clear the extent to which Namibia's defence acquisition decisions to be based on political influence by selling nations. However, there have been suspicions that due to the colonial relationship between Germany and Namibia, the former may have used its political influence in the acquisition and the provision of finance of certain procurements. As noted by Katjavivi &quoute; Since Namibia’s independence in March 1990, friendly and comprehensive relations have developed between Namibia and the Federal Republic of Germany. The Federal Republic of Germany acknowledges a ‘special responsibility’ for Namibia, expressed officially in the parliamentary resolution of March 1989, entitled “The Special Responsibility of the Federal Republic of Germany for Namibia and all its Citizens”, in which the German Bundestag [German Parliament] called on the government to develop and cultivate special relations with the independent Namibia. In that Germany took into account its responsibility for the country’s colonial past as well as the government’s commitment to the independence process, especially as part of the Western Contact Group&quoute;.

Although, hard evidence is difficult to come by it has been stated by Anton Kruger and Guy Martin that &quoute;Due to its historical ties, Namibia has received substantial defence support from Germany, which has donated military equipment and provided training to the NDF. In August 2013 Germany pledged some N$40 million in military support over the subsequent three years, bringing to N$200 million Germany has budgeted for cooperating in the field of defence since 1992. Together with the Namibian government, Germany has provided a mobile field hospital, a vehicle mechanic training centre, more than 25 tons of medical equipment, 20 all-terrain ambulances, trucks, spare parts and equipment. It will focus on establishing a Camp Operation Logistic Unit, which Namibia will use when contributing troops to African Union and United Nations-led peacekeeping missions&quoute;. It is not clear whether this financial assistance or &quoute;donations are free from encumbrances.