Minor offenders call for record clearance

Since being jailed in 1995 for forging his cousin’s Grade 10 certificate, Eduard Kambamba has struggled to find employment for the past 31 years. He has been selling tomatoes at Katutura’s Stop and Shop complex to make a living because his criminal record has prevented him from getting a decent job. Kambamba (49) is one of several people calling for amendments to laws on minor offences to allow petty convictions to be removed from criminal records, arguing that this would enable affected individuals to rebuild their lives. They want the introduction of a legal framework that would allow their criminal records to be expunged after a sentence has been served. The Namibian Criminal Procedure Act of 1997 makes no statutory provision for the expungement of criminal records. Consequently, any valid criminal conviction results in a permanent criminal history, barring a direct presidential pardon. “These are petty crimes, we cannot be denied a living for over 30 years,” Kambamba says. UNPARDONABLE SIN? In Kambamba’s case, he did not meet the entry requirements for vocational training at the time to enroll, preventing him from obtaining the qualifications he needed to secure a job. Hoping that the deed would lead to better job opportunities, Kambamba acted against his better judgement and forged his cousin’s Grade 10 certificate to enroll himself into the vocational training programme. He was arrested soon after, jailed for three months and ordered to pay a N$300 fine. However, he has been paying for his crime for 31 years as it remains on his record to date. Kambamba believes he has paid enough for his crime. “I went to jail because N$300 that time was like N$3 000,” he tells The Namibian. Another minor crime offender, Sam Ekandjo, has also been struggling to find employment after he broke Covid-19 regulations by staying out late during curfew in 2020. He says he thought it was a minor offence and missed his court date. “It’s a simple case. I was only found driving at night. I was taking a woman to hospital. We both slept in jail, but she was later taken to hospital by the police,” he says. Kaviyu Kondjeni, who was charged for fighting at a cuca shop at Ondangwa in 2008, has been turned away by prospective employers despite serving a six-month jail sentence. “We fought during an argument. We have been going to court until we were punished. From there, we were charged and sentenced for six months,” he says. Retired lawyer John Walters says a criminal record stays with an individual for the rest of their lives. He says even if the offences were committed years ago, they still remain in the system if someone was convicted. “Even those offences you committed 10 or 15 years ago remain on the record forever,” he says. Walters says he believes records of offenders who committed minor crimes should not be removed, but categorised as first time offenders. ‘FORGIVE OUR TRESPASSES’ Independent Patriots for Change shadow minister of justice and labour relations Elvis Lizazi says offences are only supposed to remain in the system for 10 years. “After 10 years, that record must not be there. Even lawmakers are given 10 years to pay their fines or serve their terms when they commit offences,” he says. Popular Democratic Movement leader McHenry Venaani says offences should serve as a blueprint of an individual’s conduct, and should be used to inform future behaviour. He warns that removing such records would erase an individual’s behavioural history, which he believes is an important indicator of future activity. “We could legally look at a timeous framework to clear small offenders after a period, provided that no further crimes have not compounded,” he says. National police spokesperson deputy commissioner Kauna Shikwambi says the police have already submitted recommendations to the Law Reform and Development Commission for consideration of removing criminal records after a specified period. “Any amendment of the relevant legislation falls within the mandate of the commission and the broader legislative process. We remain available to provide technical input and support should such reforms be considered,” she says. Shikwambi explains that a crime is not only a violation of the law, but a violation of the fundamental rights, freedom and security of individuals and communities. She says offenders will be arrested, charged, and where found guilty by a court of law, convicted as part of the criminal justice process. “The individual’s identity is captured in the legal system and they consequently acquire a criminal record. It reflects only those offences to which a person has pleaded guilty or for which they have been found guilty by a competent court. Matters in which a person was acquitted, found not guilty, or where charges were withdrawn or dismissed do not appear on a criminal record.” she says. She notes that individuals who have