Financial Intelligence Amendment Act 2023

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GOVERNMENT GAZETTE

OF THE

REPUBLIC OF NAMIBIA

N$36.00 WINDHOEK - 21 July 2023 No. 8139

CONTENTS

Page

GOVERNMENT NOTICE

No. 211 Promulgation of Financial Intelligence Amendment Act, 2023 (Act No. 6 of 2023) of the

Parliament . ......................................................................................................................... 1

________________

Government Notice

OFFICE OF THE PRIME MINISTER

No. 211 2023

PROMULGATION OF ACT

OF PARLIAMENT

The following Act which has been passed by the Parliament and signed by the

President in terms of the Namibian Constitution is hereby published in terms of

Article 56 of that Constitution.

No. 6 of 2023: Financial Intelligence Amendment Act, 2023.

_______________

2 Government Gazette 21 July 2023 8139

Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

EXPLANATORY NOTE:

___________ Words underlined with a solid line indicate insertions in

existing provisions.

[ ] Words in bold type in square brackets indicate omissions

from existing provisions.

ACT

To amend the Financial Intelligence Act, 2012 so as to substitute and insert

new definitions; to delete certain provisions requiring companies, close

corporations and trusts to submit certain information to the Registrar of

Companies and Close Corporations and the Master of the High Court,

respectively, in order to avoid duplication with legislation governing

companies, close corporations and trusts; to provide for the operational

independence and autonomy of the Financial Intelligence Centre;

to provide for the establishment of the Board of the Centre and for its

powers and functions; to include certain persons as members of the

Anti-Money Laundering and Combating of the Financing of Terrorism

and Proliferation Council; to amend the functions of the Council; to

require accountable institutions to identify and verify beneficiaries and

beneficial owners of life insurance policies and other investment related

policies and whether the beneficiaries or beneficial owners are prominent

influential persons; to require accountable institutions to have in place

appropriate risk management and monitoring systems and other measures

to determine whether clients or beneficial owners are prominent influential

persons; to require supervisory bodies to impose consolidated group

supervision on businesses conducted by a group of institutions of which

accountable or reporting institutions form part of; to identify non-profit

organisations that must be subjected to the applicable provisions of this

Act and to monitor the identified non-profit organisations to comply with

measures to combat the financing of terrorism; to require accountable

institutions with foreign branches and majority owned subsidiaries to

implement a group-wide anti-money laundering and financing of terrorism

or proliferation measures on the branches and subsidiaries; to provide for

the nature and manner in which confidential information may be shared

between accountable and reporting institutions to further the objects of

this Act; to insert Schedule 5 in the Act providing for categories of natural

persons who are regarded as beneficial owners and Schedule 6 providing

for persons who are regarded as prominent influential persons; and to

provide for incidental matters.

(Signed by the President on 19 July 2023)

BE IT ENACTED as passed by the Parliament, and assented to by the

President, of the Republic of Namibia as follows:

Amendment of section 1 of Act No. 13 of 2012 as amended by section 63 of Act

No. 4 of 2014 and section 5 of Act No. 16 of 2022

1. Section 1 of the Financial Intelligence Act, 2012 (hereinafter referred

to as the “principal Act”) is amended by -

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(a) the substitution for the definition of “accountable institution” with the

following definition:

““accountable institution” means a person or institution referred to in

Schedule 1, including -

(a) branches, associates or subsidiaries outside of that person or

institution [and];

(b) a person employed or contracted by such person or institution;

and

(b) the deletion of paragraphs (b), (d) and (f) from the definition of

“authorised officer”;

officer” with the following paragraph:

““(e) the Anti-Corruption Commission authorised by the Director-

General of the Anti-Corruption Commission;”;

(d) the substitution for the definition of “beneficial owner” with the

following definition:

““beneficial owner” means a natural person referred to in Schedule 5

who -

(a) for the purposes of this Act, ultimately owns or controls -

(i) a client or a natural person; or

(ii) a natural person on whose behalf a transaction is being

concluded; or

(b) exercises ultimate effective ownership or control over -

(i) a legal person;

(ii) a trust or other legal arrangement;

(iii) the proceeds of a life insurance policy or other related

investment policy when an insured event occurred; or

(iv) a partnership,

where such ultimate ownership or ultimate effective control may be

exercised directly or indirectly or through a chain of ownership or

control other than direct control;”;

(e) the insertion after the definition of “beneficial owner” of the following

definition:

““Board” means the Board of the Centre established in terms of

section 16A;”;

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(f) the insertion after the definition of “client” of the following definition:

““close associate”, when used in relation to a prominent influential

person, means an individual who is closely connected to the prominent

influential person, either socially or professionally, and includes, but is

not limited to, an individual who has a close business relationship with

the prominent influential person such as the -

(a) business partner of the prominent influential person; or

(b) owner or beneficial owner of a legal person, trust, partnership

or other legal arrangement which is associated with the

prominent influential person;”;

(g) the substitution for the definition of “competent authority” with the

following definition:

““competent authority” means any supervisory body, the Namibian

Police Force, the Anti-Corruption Commission, the Namibian Central

Intelligence Service, the Prosecutor-General, the Namibia Revenue

Agency, the Centre and any other authority that may, in terms of any

law, investigate unlawful activities;”;

(h) the substitution for the definition of “correspondent banking” with the

following definition:

““correspondent banking” means the provision of banking, payment

and other services by one bank “the correspondent bank” to another

bank “the respondent bank” to enable the latter to provide services and

products to its clients or persons with similar relationships;”;

(i) the substitution for the definition of “customer due diligence” with the

following definition:

““customer due diligence” means a process which involves

establishing the identity of a client, the identity of the client’s

beneficial owners, understanding the ownership and control structure

of a client in respect of legal persons, trusts, partnerships and other

legal arrangements and obtaining information on the purpose and

intended nature of the business relationship [and monitoring all

transactions] of the client against the [client’s profile] knowledge

of the client;”;

(j) the insertion after the definition of “determination” of the following

definition:

““Director”, when used in relation to the Centre, means the Director of

the Centre appointed in terms of section 11;”;

(k) the insertion after the definition of “establish identity” of the following

definitions:

““family member”, when used in relation to a prominent influential

person, means an individual who is related to the prominent influential

person, either directly or through marriage or other form of relationship

or partnership including, but is not limited to -

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(a) a spouse or partner of the prominent influential person;

(b) a sibling, including a step-sibling of the prominent influential

person and sibling’s spouse or partner;

person and the child’s spouse or partner; and

(d) a parent, including a step-parent of the prominent influential

person;

“Financial Action Task Force” means an independent inter-

governmental international standard setting body which, amongst

others, develops and promotes policies to protect the global financial

system against money laundering, the financing of terrorism and the

financing of proliferation of weapons of mass destruction;”;

(l) the insertion after the definition of “Governor” of the following

definition:

““initial token offering” means to offer to the public for sale a virtual

token in exchange for fiat currency or another virtual asset;”;

(m) the insertion after the definition of “money laundering” of the

following definitions:

““monitoring” means -

(a) the monitoring by an accountable institution of a transaction

or an activity carried out by a client to ensure that such

transaction or activity is consistent with the knowledge that the

accountable institution has of the client and risk profile of the

client, including, where necessary, the source of funds;

(b) the enhanced monitoring by an accountable institution of

a transaction or an activity of an identified high-risk client

in order to timeously identify a suspicious transaction or

activity; or

the name of a client or potential client and any name involved

in a transaction against any sanction list issued by the United

Nations Security Council under Chapter VII of the United

Nations Charter, for purposes of combating money laundering

and the financing of terrorism or proliferation activities;

“Namibia Revenue Agency” means the Namibia Revenue Agency

established by section 2 of the Namibia Revenue Agency Act, 2017

(Act No. 12 of 2017);

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

“non-profit organisation” means a legal person or arrangement or

organisation that primarily engages in raising or disbursing funds for

purposes such as charitable, religious, cultural, educational, social

or fraternal purposes, or for the carrying out of other type of good

works, where the Centre under section 35A identifies certain non-profit

organisations to which the applicable provisions of this Act apply;”;

(n) the insertion after the definition of “proliferation” of the following

definition:

““prominent influential person” means a person in a prominent public

position or function, whether in Namibia or in a foreign country, listed

in Schedule 6, including, but is not limited to -

(a) a person who previously occupied a prominent public position

or function but has vacated such position or function; and

(b) a person who is or has been entrusted with a prominent position

by an international organisation;”;

(o) the insertion after the definition of “regulatory body” of the following

definition:

““religious leader” means a person who is a member of the governing

body of any religious body or who is vested with the decision-making

authority within the religious body;”;

(p) the insertion after the definition of “senior management” of the

following definition:

““shell bank” means a banking institution that has no physical presence

in the country in which it is incorporated and licensed, and which is not

affiliated to any regulated financial group that is subject to effective

consolidated supervision;”;

(q) the substitution for the definition of “single transaction” with the

following definition:

““single transaction” means a transaction other than a transaction

concluded in the course of a business relationship and includes a cash

deposit by a person, other than the client, into a client’s bank account;”;

(r) the substitution for the definitions of “this Act” and “unlawful activity”

with the following definitions:

““this Act” includes regulations and determinations; [and]

“unlawful activity” has the meaning assigned to it in section 1 of the

Prevention of Organised Crime Act[.];”;

(s) the addition after the definition of “unlawful activity” of the following

definitions:

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

““virtual asset” means a digital representation of value that -

(a) can be digitally transferred, stored or traded;

(b) uses a distribution ledger technology or similar technology;

and

but does not include digital representations of fiat currencies, and

securities or other financial assets regulated under the securities or

financial assets law of Namibia;

“virtual asset service provider” means a person who conducts, as a

business, one or more of the following activities or operations for or

on behalf of another person or other legal arrangement -

(a) initial token offering;

(b) exchanging one virtual asset for another virtual asset;

for virtual assets;

(d) transfer of virtual assets;

(e) operating a virtual asset exchange;

(f) safekeeping of virtual assets or instruments enabling control

over virtual assets;

(g) administration of virtual assets or instruments enabling

control over virtual assets;

(h) participation in and provision of financial services related to

a token issuer’s offer and sale of virtual assets or the token

issuers offer or sale of virtual asset; or

(i) any other activities that may be determined or prescribed by

the Minister under any law regulating virtual assets.”.

Insertion of section 3A in Act No. 13 of 2012

2. The principal Act is amended by the insertion after section 3 of the

following section:

“Application of Act to beneficial owners and prominent influential persons

3A. (1) This Act applies to beneficial owners and prominent

influential persons set out in Schedule 5 and Schedule 6, respectively.

(2) The Minister, by notice in the Gazette, may amend the list of

beneficial owners and prominent influential persons set out in Schedule 5 or

Schedule 6 to -

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(a) add to the list any person or category of persons if the Minister

reasonably believes that person or category of persons is, or is

likely to be, a beneficial owner or prominent influential person;

(b) make technical changes to the list.

(3) Before the Minister amends Schedule 5 or Schedule 6 under

subsection (2), the Minister must consult the Council and the Centre.”.

Amendment of section 4 of Act No. 13 of 2012

3. Section 4 of the principal Act is amended by the deletion of subsections

(2), (3), (4), (5), (6) and (7).

Amendment of section 5 of Act No. 13 of 2012

4. Section 5 of the principal Act is amended by the deletion of subsections

(2), (3), (4), (5), (6), (7) and (8).

Substitution of section 7 of Act No. 13 of 2012

5. The principal Act is amended by the substitution for section 7 with the

following section:

“Establishment of Financial Intelligence Centre

7. (1) There is established an operationally independent and

autonomous national centre to be known as the Financial Intelligence Centre,

that is responsible for administering this Act, subject to any general or specific

policy directives which the Minister may issue.

(1A) The Centre must perform its functions freely and without fear,

favour or prejudice and must safeguard against political, administrative and

private sector influence and interference.

(2) The Centre is physically hosted within the Bank and the Bank

must provide administrative support services to the Centre, where needed.”.

Substitution of section 8 of the Act No. 13 of 2012 as amended by section 63 of Act

No. 4 of 2014

6. The Principal Act is amended by the substitution for section 8 with the

following section:

“Objects of Centre

8. The principal objects of the Centre in terms of this Act are to

combat money laundering, the underlying unlawful activities and the financing

of terrorism or proliferation activities in collaboration with the other law

enforcement agencies.”.

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

Amendment of section 9 of Act No. 13 of 2012 as amended by section 63 of Act

No. 4 of 2014

7. Section 9 of the principal Act is amended -

(a) by the substitution for subsection (1) with the following subsection:

“(1) In furthering its objects, the powers and functions of

the Centre are -

(a) to collect, request, receive, process, analyze and assess

all reports, requests for information and information

received from persons, accountable institutions,

reporting institutions, government offices, ministries,

or agencies or any other competent authorities and any

foreign agencies, in terms of this Act or in terms of any

law;

(b) to initiate an operational or strategic analysis on its

own motion or upon request by a law enforcement

agency or a financial intelligence unit of any country

based on information in its possession or information

received from another source;

to competent authorities and foreign agencies with

powers and duties similar to that of the Centre using

dedicated and secure channels for such dissemination;

[and]

(d) to make recommendations arising out of any

information received;

(e) to collect statistics and records of -

(i) suspicious transactions reports, suspicious

activity reports and [R]requests for [I]

information received and intelligence

disseminated;

(ii) money laundering and financing of terrorism

or proliferation investigations, prosecutions

and convictions;

(iii) property frozen, seized and confiscated under

the Prevention of Organised Crime Act, or

any other law applicable to the Republic of

Namibia;

(iv) mutual legal assistance or other international

requests for co-operation;

(v) on-site examinations conducted by the Centre

or supervisory bodies and any enforcement

actions taken; and

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(vi) formal requests for assistance made or

received by supervisory or regulatory bodies

relating to money laundering and its predicate

offences and financing of terrorism or

proliferation and outcomes of such requests;

(f) to coordinate, at an operational and strategic level, the

activities of the various persons, bodies or institutions

involved in the combating of money laundering and

the financing of terrorism or proliferation;

(g) to inform, advise and cooperate with competent

authorities and exchange information, available to

the Centre, with these authorities for the purpose

of administration, intelligence collection, capacity

development and training, law enforcement and

prosecution;

(h) to supervise, monitor and enforce compliance with

this Act, or any regulations, directives, determinations,

notices or circulars issued in terms of the Act, by

accountable and reporting institutions and give

guidance to [A]accountable and reporting institutions

to combat money laundering or financing of terrorism

or proliferation activities[,]; [and]

(i) to facilitate effective supervision and enforcement of

the Act by supervisory bodies[.];

(j) to monitor and supervise non-profit organisations

identified in terms of this Act for compliance with

measures to combat the financing of terrorism; and

(k) to apply consolidated group supervision to all aspects

of business conducted by a group of institutions of

which an accountable or reporting institution forms

part of, as may be determined by the Centre.”;

(b) in subsection (2) by the substitution for paragraph (d) with the

following paragraph:

“(d) consult a foreign financial intelligence unit, a competent

authority or a reporting institution in order to provide or

receive feedback on the effectiveness of information sharing

arrangement and the quality of information exchanged;”.

Substitution of section 10 of Act No. 13 of 2012

8. The principal Act is amended by the substitution for section 10 with

the following section:

“Administrative powers of Centre

10. The Centre[, with the concurrence of the Governor,] may

do all that is necessary or expedient to perform its functions effectively, which

includes the power to -

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(a) determine its own staff establishment with the approval of

the [Minister] Board;

(b) appoint employees and receive seconded personnel to posts

on its staff establishment in accordance with staff policies and

procedure of the [Bank as far as reasonably possible] Centre;

state department, functionary or institution, to perform any

specific act or function;

(d) engage in any lawful activity, whether alone or together with

any other organisation in Namibia or elsewhere, aimed at

promoting its objects[.];

(e) establish and implement procedures for the secure and proper

management of confidential information, including procedures

for accessing, handling, storage, disseminating and protection

of confidential information; and

(f) establish secure facilities for the Centre with access to

the secured facilities and information being limited to the

Director, the staff members of the Centre and persons

authorised by the Director.”.

Substitution of section 11 of Act No. 13 of 2012

9. The principal Act is amended by the substitution for section 11 with the

following section:

“Appointment and removal of Director

11. (1) The Minister, [after consultation with the Council]

upon the recommendation of the Board, must appoint a suitably qualified, fit

and proper person as the Director [of the Centre].

(2) A person appointed as Director holds office -

(a) for a term of five years, which term [is] may be renew[able]ed;

and

(b) on terms and conditions set out in a written employment

contract.

(3) A person may not be appointed as the Director, unless -

(a) information with respect to that person has been gathered in

a security screening investigation by the National Intelligence

Agency established by the Namibia Central Intelligence

Service Act, 1997 (Act No. 10 of 1997); and

(b) the Minister, after evaluating the gathered information, is

satisfied that the person may be so appointed without the

possibility that such person may pose a security risk or that

such person may act in any manner prejudicial to the objects of

this Act or the functions of the Centre.

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(4) The Director may at any time [determined by the Minister],

upon recommendation by the [Council] Board, be subjected to a further security

screening investigation as contemplated in subsection (3)(a).

(5) The Minister, on his or her own accord or upon recommendation

by the [Council] Board, may remove the Director from office before the expiry

of the Director’s term of office -

(a) on the grounds of misconduct, incapacity or incompetence[,];

(b) based on the outcome of a security screening investigation

referred to in subsection (4); or

in line with [fair labour practices and the prevailing labour

legislation] the procedures contemplated in this section.

(6) Despite the provisions of this section, [T]the Minister, after

consultation with the Board or upon recommendation by the [Council] Board,

may suspend the Director from office, pending -

(a) the [determination] outcome of any [disciplinary] enquiry,

in accordance with this section, as to whether grounds of

misconduct, incapacity or incompetence or any other duly

justified reason exist; or

(b) the outcome of a security screening investigation referred to

in subsection[s (3) and] (4).

(7) If the Minister on his or her own accord or if the Board

recommends that the Director be removed from office, the Minister must

establish a committee in accordance with subsection (8) to inquire into the

matter.

(8) The committee must -

(a) consist of not less than three and not more than five persons,

and at least one of the members of the committee must be a

legal practitioner with more than 15 years of experience or a

retired judge;

(b) be chaired by the legal practitioner or the retired judge referred

to in paragraph (a); and

(9) The Minister must consider the report referred to in subsection

(8)(c) and after due deliberation with the Board, the Minister may remove the

Director from office.

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(10) The Director vacates office if the Director -

(a) resigns from office after giving three months written notice

to the Minister of his or her intention to resign; or

(b) is removed from office under subsection (9).

(11) If the Director vacates his or her office as contemplated

in subsection (10), a new Director must be appointed in accordance with

subsection (1).”.

Insertion of section 11A in Act No. 13 of 2012

10. The principal Act is amended by the insertion after section 11 of the

following section:

“Acting Director

11A. (1) If the Director is temporarily unable to perform or

exercise the functions or powers of office, the Director must designate a staff

member of the Centre as the acting Director.

(2) If there is a vacancy in the office of the Director or where the

Director has been suspended in accordance with section 11(6), the Minister

must appoint a suitably qualified, fit and proper person as the acting Director.”.

Substitution of section 12 of Act No. 13 of 2012 as amended by section 63 of Act

No. 4 of 2014

11. The principal Act is amended by the substitution for section 12 with the

following section:

“Responsibilities of Director

12. [1] The Director is responsible for -

(a) the performance [by the Centre] of [its] the functions assigned

or conferred on the Centre by or under this Act;

(b) implementation and administration of applicable provisions of

this Act;

to the provisions of this Act;

(d) [reporting functionally to the Council] preparing and

submitting the annual report to the Board;

(e) the management of the staff, resources and administration of

the Centre, including the allocation of resources for carrying

out the functions of the Centre and making arrangements for

the secure management of the information received and held

by the Centre;

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(f) dissemination of intelligence involving suspected proceeds

of crime, money laundering, associated unlawful activity,

terrorist property or financing of terrorism or proliferation, to

competent authorities and foreign agencies with powers and

duties similar to that of the Centre;

(g) providing relevant advice to the [Council] Board;

(h) providing advice and guidance to assist accountable institutions,

reporting institutions and supervisory bodies to comply with

their obligations under this Act; [and]

(i) advis[e]ing the Council on aligning the National Anti-Money

Laundering and Combating the Financing of Terrorism and

Proliferation framework with international Anti-Money

Laundering and Combating the Financing of Terrorism and

Proliferation standards and best practices[.];

(j) the implementation of general policies of the Centre; and

(k) negotiating and signing contracts on behalf of the Centre in

line with the rules for good governance of the Centre and the

conduct of its business.”.

Substitution of section 13 of Act No. 13 of 2012

12. The principal Act is amended by the substitution for section 13 with

the following section:

“Staff of Centre

13. (1) For the purposes of assisting the Director in the

performance of the functions of the Centre, the Director, [with the concurrence

of the Governor] in accordance with the staff establishment approved by the

Board, may appoint persons as staff members of the Centre.

(2) The [Governor] Director may [-

(a) assign staff members of the Bank to the Centre;

(b)] request the Bank or an office, ministry, or agency as defined in

the Public Service Act, 1995 (Act No. 13 of 1995), to second

a staff member of the Bank or Public Service to the Centre for

the purposes of assisting the Centre in carrying out its functions

in terms of this Act.

(3) Staff members referred to in subsections (1) and (2) perform

their duties under the supervision, control and directions of the Director.

(4) A person who is to perform functions on behalf of the Centre,

and the performance of such functions requires the person to have access to

sensitive and confidential information of the Centre may not be appointed or

seconded to perform [any] such [of the] functions of the Centre unless -

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(a) information with respect to that person has been gathered in

a security screening investigation by the National Intelligence

Agency established by the Namibia Central Intelligence

Service Act, 1997 (Act No. 10 of 1997); and

(b) the Director, [with the concurrence of the Governor,] after

evaluating the gathered information, is satisfied that the person

may be so appointed or seconded without the possibility that

the person poses a security risk or that the person may act in

any way prejudicial to the objects or functions of the Centre

and the objects of this Act.

(5) Any person referred to in subsection (4) may at any time

determined by the Director, [with the concurrence of the Governor,] be

subjected to a further security screening investigation as contemplated in

subsection (4)(a).

(6) The Centre must ensure that a staff member who carries out the

functions of the Centre is -

(a) trained and understands his or her responsibilities in handling

and disseminating of sensitive and confidential information;

and

(b) granted the appropriate security clearance in accordance with

the nature of his or her functions, where applicable.”.

Amendment of section 14 of Act No. 13 of 2012

13. Section 14 of the principal Act is amended by the substitution for

subsection (3) with the following subsection:

“(3) For the purpose of subsection (1)(a), the Director must prepare the

annual budget of the Centre for consideration by the [Council] Board and its subsequent

recommendation to the Minister for approval.”.

Amendment of heading of Part 3 of Act No. 13 of 2012 as amended by section 63

of Act No. 4 of 2014

14. The principal Act is amended by substitution for the heading of

Part 3 with the following heading:

“BOARD OF CENTRE AND ANTI-MONEY LAUNDERING AND COMBATING

FINANCING OF TERRORISM AND PROLIFERATION COUNCIL”.

Insertion of sections 16A, 16B, 16C, 16D, 16E, 16F and 16G in Act No. 13 of 2012

15. The principal Act is amended by the insertion after section 16, but in

Part 3 of the following sections:

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“Establishment of Board

16A. (1) There is established for the purposes of this Act a

Board of the Centre which consists of -

(a) a chairperson, who must be of proven knowledge and

experience in the field of financial services, economics, finance,

law, business or commerce or other disciplines relevant to the

operation of the Centre;

(b) a person who has a qualification in law and who has practiced

as a legal practitioner or as an advocate in Namibia for at least

15 years; and

knowledge and experience on anti-money laundering and

financing of terrorism or proliferation field, financial services

provision or regulation, human resources, audit and accounting

or technology.

(2) The persons to be appointed as members of the Board must be

fit and proper persons and are appointed by the Minister.

(3) For the purposes of appointment of persons as members of the

Board in terms of this section, the Minister must, in at least two daily newspapers

widely circulating throughout Namibia or in any other manner, invite interested

persons who comply with subsection (1) and who are fit and proper persons to

be considered for appointment as members of the Board.

(4) The appointment of the members of the Board is on such terms

as may be specified in the letter of appointment.

(5) The Minister must in the Gazette announce the names of

persons appointed as members of the Board.

(6) The Board is responsible for -

(a) advising the Centre concerning the performance of its functions;

(b) advising the Centre regarding the financial management of the

Centre;

the Centre to the Minister for approval;

(d) considering and endorsing human and other resources required

by the Centre to effectively carry out its mandate and functions

in terms of this Act, as proposed by the Director;

(e) considering and endorsing any report of a committee established

in terms of section 16E, including the risk and assurance report

of the Centre;

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(f) considering and endorsing the annual report and annual audited

financial statements of the Centre and report to the Minister

on any matter appearing in or arising out of such report or

statements; and

(g) recommending to the Minister the appointment or removal of

the Director.

Disqualification for appointment as member of Board

16B. A person may not be appointed as a member of the Board if the

person -

(a) is not a Namibian citizen or lawfully admitted to Namibia for

permanent residence;

(b) is a member of the National Assembly, National Council, local

authority council or regional council, unless the person resigns

as a member of the National Assembly, National Council, local

authority council or regional council;

proposed appointment as a member of the Board, has been a

director, officer, employee or owner of, or a shareholder in,

an accountable or a reporting institution or an identified

non-profit organisation or provides professional services to

the Centre;

(d) has been disqualified under any law dealing with companies to

hold a position of a director of a company;

(e) fails to disclose prior to his or her appointment that he or she

has been convicted of any offence in terms of any laws dealing

with companies or insolvency;

(f) has not attained the age of 21 years;

(g) is an unrehabilitated insolvent;

(h) has been convicted of an offence in Namibia or elsewhere and

sentenced to imprisonment without an option of a fine;

(i) has been convicted of an offence involving dishonesty in

Namibia or elsewhere;

(j) has been disqualified or suspended from practicing a profession

on the ground of unprofessional conduct or dismissed from a

position of trust due to misconduct;

(k) has under any law been declared by a competent court to be

mentally ill; or

(l) is a member of the Council.

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Meetings of Board

16C. (1) The Board must meet as often as the business of the

Centre requires but at least once in every three months during each financial

year.

(2) The majority of all the members of the Board constitute a

quorum for any meeting of the Board.

(3) The chairperson may at any time and must at the written request

of at least three other members of the Board convene a special meeting of the

Board and the request must clearly state the purpose for which the meeting is to

be convened.

(4) The chairperson must cause reasonable prior notice of every

meeting of the Board to be given to the members of the Board, except in urgent

matters where a meeting of the Board may be convened without a prior notice.

(5) The chairperson presides at the meetings of the Board and if

the chairperson is absent or unable to preside, a board member nominated by

the chairperson must preside at the meeting.

(6) The Board may invite a person who has special knowledge or

skills in any relevant field or discipline to attend its meeting and advise the

Board, but such person has no voting right.

(7) Despite the provisions of this Act, the Board does not have the

power to consider, discuss or deliberate on -

(a) a report of a cash transaction compiled in terms of section 32;

(b) a report of electronic transfer of money to, from or within,

Namibia compiled in terms of section 34;

instruments declared and acknowledged in terms of section 36;

(d) a declaration made in terms of section 38; or

(e) any matter relating to the lodging, analysing, reporting,

requesting or disseminating of information in respect of any

suspicious transaction or activity report, nor does it have

access to information concerning any suspicious transaction or

activity report.

(8) The Board must determine its own procedure in line with the

national good governance principles.

(9) The Centre must provide administrative support to the Board to

function effectively.

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

Term of office and remuneration

16D. (1) A member of the Board holds office for a period of five

years and may be re-appointed after the expiration of his or her term of office

for an additional term.

(2) Despite subsection (1), a member of the Board may not serve

as a member of the Board for a period of more than 10 years, but remains in

office until a new member of the Board is appointed.

(3) The remuneration, allowances and other terms and conditions

of service of the members of the Board are determined by the Minister.

(4) A member of the Board may be paid such remuneration,

including allowances for travelling and subsistence expenses incurred by the

member in the exercise and performance of powers and functions in terms of

this Act.

(5) The remuneration and allowances of the members of the Board

must be disclosed in the annual report of the Centre.

Committees of Board

16E. (1) The Board may establish one or more committees to

assist the Board in the exercising or performance of its powers and functions

under this Act.

(2) A committee consists of members of the Board and must elect

its own chairperson.

(3) A committee exercises its powers and performs its functions in

accordance with such directions as the Board may determine.

(4) A committee may invite a person who has special knowledge

or skills in any relevant field or discipline to attend its meetings and advise the

committee.

(5) A function or power performed or exercised by a committee is

considered to have been performed or exercised by the Board.

(6) The Board may at any time -

(a) amend, substitute or set aside a decision of a committee; or

(b) dissolve or reconstitute a committee.

Vacation of office by members of Board

16F. (1) The office of a member of the Board becomes vacant if

the member -

(a) becomes subject to any of the disqualifications referred to in

section 16B;

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(b) resigns from office, after giving the Minister 30 days written

notice of his or her intention to resign;

without leave of the Board; or

(d) is removed from office under subsection (2).

(2) The Minister may, by notice in writing to a member, remove

the member from office before the expiry of his or her term if the Minister

is satisfied, after giving such member a reasonable opportunity to be heard,

that the member -

(a) is physically or mentally unfit or unable to effectively perform

his or her functions as a member;

(b) neglects his or her functions as a member;

obtained by the member during the performance or exercise of

his or her powers or functions under or in terms of this Act or

any other law; or

(d) acts in a manner that prejudices or conflicts with the functions

of the Board.

Conflict of interest and disclosure of interest by members of Board

16G. (1) A member of the Board may not act as a representative

of a commercial, financial, industrial entity or any other entity or accept

directions from such commercial, financial, industrial entity or other entity in

respect of a function or power to be performed or exercised by the Board under

this Act.

(2) A member of the Board may not personally or on behalf of a

close relative or any other person accept a gift from any person if the acceptance

of the gift may potentially affect the impartiality of the member of the Board in

the exercise or performance of his or her powers or function under this Act.

(3) A member of the Board must fully disclose to the Board any

direct or indirect personal, pecuniary, commercial, industrial or other interests

that the member or his or her close relative may have in a matter to be deliberated

on by the Board and which interest may potentially -

(a) conflict with the interests of the Centre; or

(b) affect the impartiality of the member of the Board in exercise

or performance of his or her powers or functions under this

Act.

(4) A disclosure referred to under subsection (3) must be made -

(a) as soon as possible after the relevant facts have come to the

knowledge of the member of the Board; or

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(b) before the Board commences with any deliberation on the

matter in respect of which the disclosure is made.

(5) Unless the Board determines otherwise, the member disclosing

the interest in terms of subsection (4) must leave the meeting of the Board and

may not take part in the deliberation and voting on such matter.

(6) A disclosure of interest made under this section must be

recorded in the minutes of the meeting of the Board at which such disclosure is

made.

(7) A member who -

(a) fails to disclose his or her interest or that of his or her close

relative in a matter before the Board; or

(b) without leave of the Board, takes part in the deliberations of the

Board on a matter in which he or she or his or her close relative

has a direct or indirect interest,

may be removed from office in accordance with section 16F(2).

(8) For the purposes of this section, a “close relative” means -

(a) a spouse or partner of a board member;

(b) a child, step-child or adopted child of a board member and the

child’s spouse or partner;

sibling’s spouse or partner; or

(d) a parent, including a step parent or adoptive parent of the

board member.”.

Amendment of section 18 of Act No. 13 of 2012

16. Section 18 of the principal Act is amended -

(a) by the substitution for subsection (1) with the following subsection:

“(1) The Minister must appoint members of the Council

which consists of -

(a) the Governor or his or her delegate who is the chairperson;

(b) the [Permanent Secretary] Executive Director of the Ministry

responsible for finance;

(d) the [Permanent Secretary] Executive Director of the Ministry

responsible for trade;

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(e) the [Permanent Secretary] Executive Director of the Ministry

responsible for justice;

(f) the [Permanent Secretary] Executive Director of the Ministry

responsible for safety and security;

(g) the Director-General of the Namibian Central Intelligence

Service;

(h) the Chief Executive Officer of the Namibia Financial

Institutions Supervisory Authority;

(i) the Director-General of the Anti-Corruption Commission;

(j) the [President] chairperson of the Bankers Association;

(k) one or more persons representing associations representing [a]

categor[y]ies of accountable or reporting institutions requested

by the Minister to nominate representatives; [and]

(l) one person representing supervisory bodies requested by the

Minister to nominate representatives[.];

(m) the Executive Director of the Ministry responsible for

international relations and cooperation;

(n) the Prosecutor-General;

(o) the Commissioner of the Namibia Revenue Agency;

(p) the Chief Executive Officer of the Business and Intellectual

Property Authority; and

(q) the Master of the High Court.”;

(b) in subsection (8) by the substitution for paragraph (b) with the

following paragraph:

“(b) give that member an opportunity to make [an oral or a

written] representation on the matter to the Minister or to any

other person designated by the Minister for that purpose; and”.

Amendment of section 19 of Act No. 13 of 2012 as amended by section 63 of Act

No. 4 of 2014

17. Section 19 of the principal Act is amended in subsection (1) by -

(a) the substitution for subparagraph (ii) of paragraph (a) with the following

subparagraph:

“(ii) the exercise by the Minister of the powers entrusted to the

Minister related to policy and coordination under this Act;”;

(b) the deletion of paragraphs (c), (d), (e) and (f).

8139 Government Gazette 21 July 2023 23

Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

Insertion of section 20A in Act No. 13 of 2012

18. The principal Act is amended by the insertion after section 20, but in

Part 4 of the following section:

“Risk management, risk assessment and risk-based anti-money laundering

and combating financing of terrorism and proliferation programs

20A. (1) An accountable institution must, on a regular basis,

conduct money laundering and financing of terrorism or proliferation activities

risk assessments taking into account the scope and nature of its clients, products

and services, delivery channels, as well as the geographical area from where its

clients and business dealings originate.

(2) An accountable institution must identify and assess the

risks of money laundering and financing of terrorism or proliferation related

to the development of new products and business practices, including new

delivery mechanisms and the use of new or developing technologies, and such

assessment must take place prior to the launch or use of such products, practices

and technologies.

(3) An accountable and a reporting institution must register

prescribed particulars with the Centre for purposes of supervising compliance

with this Act or any regulation, notice, order, circular, determination or directive

issued in terms of this Act.

(4) An accountable institution must develop, adopt and implement

a customer acceptance policy, internal rules, programmes, policies, procedures

and controls as prescribed to effectively manage and mitigate risks of money

laundering and financing of terrorism or proliferation activities.

(5) A customer acceptance policy, internal rules, programmes,

policies, procedures and controls referred to in subsection (4) must be -

(a) approved by senior management of an accountable institution;

(b) consistent with the national requirements and guidance; and

against any money laundering and financing of terrorism or

proliferation activities, taking into account the results of -

(i) any risk assessment conducted under subsections (1)

and (2); and

(ii) the national or sectoral money laundering and financing

of terrorism or proliferation risk assessment.

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(6) The programmes referred to in subsection (4) must, amongst

others, include -

(a) the establishment of procedures by an accountable institution

to ensure high integrity standards of its employees and a system

to evaluate the personal, employment and financial history of

the employees;

(b) on-going employee training programmes, such as “Know Your

Customer” programmes and instructing employees with regard

to responsibilities under this Act;

programmes;

(d) policies and procedures to prevent the misuse of technological

developments, including policies and procedures related to

electronic means of storing and transferring funds or value,

including digital representation of value; and

(e) policies and procedures to address the specific risks associated

with non-face-to-clients or transactions for purposes of

establishing the identity and on-going customer due diligence.

(7) An accountable institution must designate a compliance officer,

at management level, where applicable, who -

(a) is ordinarily resident in Namibia; and

(b) must be in charge of the application of the internal programmes

and procedures, including proper maintenance of records and

reporting of suspicious transactions.

(8) An accountable institution must implement compliance

programmes under subsection (4) at its branches and subsidiaries within

or outside Namibia as provided for in section 39.

(9) An accountable institution must develop an audit function to

evaluate any policies, procedures and controls developed under this section in

order to test compliance with the measures taken by the accountable institution

and the effectiveness of those measures.

(10) The internal rules referred to in subsection (4) must, amongst

others, include -

(a) the establishment and verification of the identity of persons

whom an accountable institution must identify in terms of

this Part;

(b) the information of which records must be kept in terms of

this Part;

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(d) the training of employees of an accountable institution to

identify and handle suspected money laundering and financing

of terrorism or proliferation activities.

(11) Internal rules made under this section must comply with

the prescribed requirements and be made available to each employee of an

accountable institution.

(12) The Centre may determine the type and extent of measures an

accountable institution must undertake with regard to each of the requirements

of this section, having regard to the risk of money laundering or financing of

terrorism or proliferation and the size of the business or profession.

(13) Any accountable or reporting institution that contravenes or

fails to comply with this section commits an offence and is liable to a fine not

exceeding N$100 million or, where the commission of the offence is attributable

to a representative of the accountable or reporting institution, to such fine or

imprisonment for a period not exceeding 30 years, or to both such fine and such

imprisonment.”.

Amendment of section 21 of Act No. 13 of 2012 as amended by section 63 of

Act No. 4 of 2014

19. Section 21 of the principal Act is amended -

(a) in subsection (2) by the substitution for paragraphs (b) and (c) with the

following paragraphs:

“(b) the identity of any beneficial owner of the client by taking

reasonable measures to verify the identity of the beneficial

owner using relevant information or data obtained from a

reliable source such that the accountable or reporting institution

is satisfied that it knows who the beneficial owner is; and

prospective client, also -

(i) the identity of that other person; and

(ii) that other person’s authority to act on behalf of the

client[;]. [and]

[(iii) obtain or verify further information about that

other person.]”;

(b) in subsection (3) by -

(i) the substitution for paragraph (c) with the following

paragraph:

“(c) provisions regulating the power to bind the entity and

to verify that any person purporting to act on behalf

of the legal person is so authorised, and identify those

persons[.]; and”;

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(ii) the addition after paragraph (c) of the following paragraph:

“(d) the identity of the natural person who holds the

senior management position in the legal person and

record the person as holding that position, in

cases where the beneficial owner cannot be identified

through reasonable measures and where there is doubt

as to whether a person with a controlling ownership

interest is the beneficial owner.”.

Insertion of section 21A in Act No. 13 of 2012

20. The principal Act is amended by the insertion after section 21 of the

following section:

“Accountable institutions to identify and verify beneficiaries

21A. (1) An accountable institution must, in addition to the

customer due diligence measures as required under section 21, conduct the

following measures on the beneficiary of a life insurance and other investment

related insurance policies as soon as the beneficiary is identified or designated

by -

(a) recording the name of the natural person, legal person,

trust, partnership or other legal arrangement, in the case of a

beneficiary who is identified as a natural person, legal person,

trust, partnership or other legal arrangement; and

(b) obtaining sufficient information concerning the beneficiary

to satisfy itself that it is able to establish the identity of the

beneficiary at the time of the pay-out of the policy, in the case

of a beneficiary who is designated by characteristic, class or by

other means.

(2) An accountable institution must, at the inception of a life

insurance policy or other investment related insurance policy, obtain sufficient

information concerning the beneficiary to satisfy itself that it is able to verify

the identity of the beneficiary at the time of pay-out of the policy.

(3) Before any payment is made under a life insurance policy and

other investment related insurance policy, the accountable institution must take

reasonable measures to determine whether the beneficiary or any beneficial

owner of the beneficiary is a prominent influential person.

(4) If an accountable institution establishes that a beneficiary or

the beneficial owner of a beneficiary is a prominent influential person, the

accountable institution must -

(a) obtain approval of senior management of the accountable

institution before it pays out any amount under the insurance

policy and other investment related insurance policy;

(b) conduct enhanced scrutiny on the whole business relationship

with the policyholder; and

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

section 33.

(5) In determining whether enhanced customer due diligence

measures are applicable, an accountable institution must include the beneficiary

of a life insurance policy and other investment related insurance policy as a

relevant factor, and if the accountable institution determines that a beneficiary

is a legal person, trust, partnership or other legal arrangement which presents a

higher risk, the accountable institution must take enhanced measures, including

reasonable measures to identify and verify the identity of the beneficial owner

of the beneficiary at the time of pay-out of the policy.

(6) An accountable institution which contravenes or fails to

comply with subsection (1), (2), (3) or (4) commits an offence and is liable to

a fine not exceeding N$100 million or, where the commission of the offence

is attributable to a representative of the accountable institution, to such fine or

imprisonment for a period not exceeding 30 years, or to both such fine and such

imprisonment.”.

Substitution of section 23 of Act No. 13 of 2012 as amended by section 63 of

Act No. 4 of 2014

21. The principal Act is amended by the substitution for section 23 with the

following section:

“Risk clients

23. (1) Accountable institutions must have appropriate risk

management and monitoring systems in place to identify clients or beneficial

owners whose activities may pose a risk of money laundering, financing of

terrorism or proliferation, or both.

(1A) An accountable institution must compile a risk profile of each

client with whom it maintains a business relationship, and the risk profile must

be updated each time an on-going due diligence is exercised in terms of section

24.

(1B) If an accountable institution after an adequate assessment of

risk identifies a lower risk, the institution may allow for simplified measures

for customer due diligence commensurate with the lower risk factors, but such

simplified measures must not be applied when there is a suspicion of money

laundering or financing of terrorism or proliferation, in which case the specific

higher risk measures apply.

(2) Where a client or beneficial owner has been identified through

such systems to be a high risk for money laundering, financing of terrorism or

proliferation, or both, the employees of an accountable institution must apply

enhanced measures, including -

(a) obtaining approval from the [directors, partners or] senior

management of that accountable institution before establishing

a business relationship with such new client, or in case of an

existing client, obtain approval from the [directors, partners

or] senior management of that accountable institution to

continue the business relationship with the client; and

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(b) tak[e]ing measures [as prescribed by the Centre] to identify,

as far as reasonably possible, the source of wealth[,] and funds

[and any other assets] of the client.

(3) An accountable institution which contravenes or fails to

comply with subsections (1) and (2) commits an offence and is liable to a

fine not exceeding N$100 million or, where the commission of the offence is

attributable to a representative of the accountable institution, to such fine or

imprisonment for a period not exceeding 30 years, or to both such fine and such

imprisonment.”.

Insertion of section 23A in Act No. 13 of 2012

22. The principal Act is amended by the insertion after section 23 of the

following section:

“Measures related to prominent influential persons

23A. (1) An accountable institution must have appropriate risk

management and monitoring systems in place to determine whether a client or

beneficial owner is a prominent influential person.

(2) If a client or beneficial owner has been identified through risk

management and monitoring systems to be a prominent influential person, an

accountable institution must -

(a) obtain approval from the senior management of the accountable

institution -

(i) before establishing a business relationship with such

new client; or

(ii) to continue the business relationship with the client, in

case of an existing client;

(b) conduct enhanced ongoing monitoring of the business

relationship; and

source of wealth and funds of the client or beneficial owner.

(3) Subsection (2) applies with the necessary changes to a family

member and close associate of a prominent influential person.

(4) An accountable institution which contravenes or fails to

comply with this section commits an offence and is liable to a fine not exceeding

N$100 million or, where the commission of the offence is attributable to a

representative of the accountable institution, to such fine or imprisonment for a

period not exceeding 30 years, or to both such fine and such imprisonment.”.

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

Amendment of section 24 of Act No. 13 of 2012 as amended by section 63 of

Act No. 4 of 2014

23. Section 24 of the principal Act is amended by the substitution for

subsection (2) with the following subsection:

“(2) An accountable institution must -

(a) pay special attention to all complex, unusual large transactions

and all unusual patterns of transactions which have no apparent

economic or visible lawful purpose;

(b) [at the direction of the Minister,] pay special attention and

apply enhanced due diligence measures proportionate to the risk

to business relations and transactions with persons, including

legal persons and trusts, from or in countries identified by -

(i) risk assessment of the accountable institution;

(ii) the national risk assessment; or

(iii) the Financial Action Task Force,

that do not or insufficiently apply the relevant international

standards to combat money laundering and the financing of

terrorism or proliferation;

transactions under paragraphs (a) and (b) and set forth in

writing their findings;

(d) keep the findings made in terms of paragraph (c) available for

competent authorities and company auditors for at least five

years, or longer if specifically so requested by a competent

authority before the expiration of the 5 years period;

(e) take enhanced measures as contemplated in section 23(2) or

such specific measures as may be prescribed from time to time

by the Minister to counter the risks with respect to business

relations and transactions specified under paragraph (b); and

(f) conduct enhanced monitoring and due diligence when -

(i) any doubts arise about the veracity or adequacy of

previously obtained customer identification data; or

(ii) there is a suspicion of money laundering or financing

of terrorism or proliferation[;],

so as to prevent money laundering, financing of terrorism or

proliferation or the commission of any other offence.”.

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

Amendment of section 25 of Act No. 13 of 2012 as amended by section 63 of

Act No. 4 of 2014

24. Section 25 of the principal Act is amended in subsection (1) by -

(a) the substitution for paragraph (c) with the following paragraph:

“(c) based on publicly-available information, evaluate the

respondent institution’s reputation and the nature of

supervision to which it is subject, including evaluating whether

the respondent institution has been subject to any investigation

or regulatory action on money laundering or financing of

terrorism or proliferation activities;”;

(b) the substitution for paragraphs (f) and (g) with the following paragraphs:

“(f) establish an agreement on the respective anti-money laundering

and combating the financing of terrorism or proliferation

responsibilities of each party under the relationship; [and]

(g) in the case of a payable-through account, ensure that the

respondent institution has verified its customer’s identity, has

implemented mechanisms for on-going monitoring with respect

to its clients and is capable of providing relevant identifying

information on request[.]; and”;

“(h) not enter into, or continue with, a correspondent banking

relationship with a shell bank and the employees of the

accountable institution must satisfy themselves that a

correspondent banking institution does not permit its accounts

to be used by a shell bank.”.

Amendment of section 26 of Act No. 13 of 2012

25. Section 26 of the principal Act is amended in subsection (1) by -

(a) the substitution for paragraph (k) with the following paragraph:

“(k) the name of the person who obtained the information referred

to in paragraphs (a) to (g) on behalf of the accountable or

reporting institution; [and]”;

(b) the insertion after paragraph (k) of the following paragraph:

“(kA) the results of any analysis undertaken in the course of the

business relationship; and”.

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

Amendment of section 27 of Act No. 13 of 2012

26. Section 27 of the principal Act is amended in subsection (1) by the

substitution for paragraph (a) with the following paragraph:

“(a) the establishment of a business relationship, for at least five years from

the date on which the business relationship is terminated[;], or longer if

specifically so requested by competent authorities before the expiration

of the 5 years period; [and]”.

Amendment of section 31 of Act No. 13 of 2012 as amended by section 63 of

Act No. 4 of 2014

27. Section 31 of the principal Act is amended in subsection (1) by the

substitution for paragraph (a) with the following paragraph:

“(a) has access during ordinary working hours to any record kept in terms

of this Act, relating to suspicious money laundering, related unlawful

activity or financing of terrorism or proliferation activities, by or on

behalf of -”.

Amendment of section 33 of Act No. 13 of 2012 as amended by section 63 of

Act No. 4 of 2014

28. Section 33 of the principal Act is amended -

(a) in subsection (1) by the substitution for the hanging sentence with the

following hanging sentence:

“and who knows or reasonably ought to have known or suspect that,

as a result of a transaction concluded by it, or a suspicious activity

observed by it, it has received or is about to receive the proceeds of

unlawful activities or has been used or is about to be used in any other

way for money laundering or financing of terrorism or proliferation

purposes, must, [within the prescribed period] promptly after the

suspicion or belief [arose] was formed, as the case may be, report to

the Centre, irrespective of the size of the transaction -”;

(b) by the substitution for the introductory sentence of subsection (2) with

the following introductory sentence:

“(2) If an accountable or reporting institution or business

suspects or believes there are reasonable grounds to suspect that, as

a result of a transaction which it is asked to conclude or about which

enquiries are made, it may receive the proceeds of unlawful activities

or in any other way be used for money laundering or financing of

terrorism or proliferation purposes should the transaction be concluded,

it must, [within the prescribed period] promptly after the suspicion or

belief [arose] was formed, report to the Centre -”;

(d) in subsection (4) by the deletion of paragraph (c); and

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(e) by the insertion after subsection (4) of the following subsection:

“(4A) For the purposes of this section “promptly” means

without delay upon having reasonable grounds or a reasonable basis to

suspect or believe that a transaction or an activity involves an unlawful

activity, money laundering or financing of terrorism or proliferation

activity, but not later than three days after the suspicion or belief was

formed.”.

Substitution of section 34 of Act No. 13 of 2012

29. The principal Act is amended by the substitution for section 34 with the

following section:

“Electronic transfers of money to, from and within Namibia

34. (1) If an accountable [or reporting] institution through an

electronic transfer, on behalf or on the instruction of another person -

(a) sends money in excess of a prescribed amount, regardless of

the destination of such funds; or

(b) receives money in excess of a prescribed amount, regardless of

the origin of such funds,

it must, within the prescribed period after the money was received or

transferred, report the transfer, together with the prescribed originator

information, to the Centre.

(2) If an accountable [or reporting] institution undertakes to send

an electronic transfer in excess of a prescribed amount it must, where reason-

ably possible, include the prescribed originator information in the electronic

message or payment form accompanying the transfer, or be in a position to

request such originator information from the originator institution.

(3) When an accountable [or reporting] institution acts as an

intermediary in a chain of electronic transfers, it must transmit all the

information it receives with that electronic transfer, to the recipient institution,

and the accountable institution must have risk-based policies and procedures in

place to determine -

(a) when to execute, reject or suspend an electronic transfer not

containing the required originator information; and

(b) the appropriate follow up action.

(4) If an accountable [or reporting] institution referred to in

subsection (2) receives an electronic transfer that does not contain all the

prescribed originator information, it must take the necessary measures to

ascertain and verify the missing information from the ordering institution or the

beneficiary, before it honours any of the instructions contained in the transfer.

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(5) If an accountable [or reporting] institution is not able to

obtain the prescribed originator information, it must file a suspicious

transaction report.

(6) An accountable [or reporting] institution must treat an

electronic transfer that it undertakes to send, receive or transmit as an

intermediary, or receive as the recipient institution, as a transaction for which

it must comply with the record-keeping requirements of sections 26 and 27.

(7) An accountable [or reporting] institution which contravenes

or fails to comply with a provision of this section, commits an offence and

is liable to a fine not exceeding N$100 million or, where the commission of

the offence is attributable to a representative of the accountable [or reporting]

institution, to such fine or imprisonment for a period not exceeding 30 years, or

to both such fine and such imprisonment.”.

Amendment of section 35 of Act No. 13 of 2012 as amended by section 63 of Act

No. 4 of 2014

30. Section 35 of the principal Act is amended -

(a) by the insertion after subsection (2) of the following subsection:

“(2A) In performing a function in terms of subsection (2),

a supervisory body may apply a consolidated group supervision to

all aspects of a business conducted by a group of institutions of

which an accountable or reporting institution forms part of, as may be

determined by the Centre.”;

(b) by the substitution for subsection (4) with the following subsection:

“(4) The responsibility referred to in subsections (2) or

(2A) forms part of the legislative mandate of all supervisory bodies and

constitutes a core function of supervisory bodies which function must

be executed using a risk-based approach.”;

(i) substitution for the introductory sentence with the following

introductory sentence:

“(6) A supervisory body, in meeting its obligation

referred to in subsection (2) or (2A), may -”;

(ii) substitution for subparagraph (ii) of paragraph (c) with the

following subparagraph:

“(ii) the continued availability of human, financial,

technological and other resources to ensure

compliance with this Act or any order, notice, circular,

determination or directive made in terms of this Act[.];

or”;

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(iii) by the addition after paragraph (c) of the following paragraph:

“(d) issue guidelines to accountable and reporting institutions

to ensure compliance with this Act.”.

Insertion of sections 35A and 35B in Act No. 13 of 2012

31. The principal Act is amended by the insertion after section 35 of the

following sections:

“Powers of Centre in relation to non-profit organisations

35A. (1) For the purposes of combating the financing of

terrorism, the Centre has the powers to identify whether a non-profit organisation

is likely to be at risk or likely to be abused for the financing of terrorism.

(2) For the purposes of identification in terms of subsection (1),

each non-profit organisation registered or operating in Namibia must -

(a) within a period of 60 days after the commencement of this

provision, cause its applicable registration or regulatory

authority to update and verify its registration details and

applicable requirements to ensure that the non-profit

organisation remains registered for the purpose for which it

was initially registered; and

(b) before the non-profit organisation updates its registration

details and applicable requirements in terms of paragraph

(a), obtain a clearance certificate from the Centre after it has

assessed whether the non-profit organisation is likely to be at

any risk or likely to be abused for the financing of terrorism.

(3) Despite subsection (2) and for the purposes of subsection (1),

the Centre -

(a) has the power to access or request for the records of a

non-profit organisation registered or operating in Namibia

in accordance with section 31; and

(b) may enter the premises and conduct an inspection on a non-

profit organisation registered or operating in Namibia in

accordance with section 53.

(4) If the Centre has identified that a non-profit organisation is

likely to be at any risk or likely to be abused for the financing of terrorism, the

Centre may by notice, in writing, to the non-profit organisation inform the non-

profit organisation that -

(a) it has been identified as a non-profit organisation that is likely

to be at risk or likely to be abused for the financing of terrorism;

and

(b) the applicable provisions of this Act apply to the identified

non-profit organisation.

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(5) The identification referred to in subsection (4) may, amongst

others, be based on -

(a) the nature of threats posed by terrorist entities to non-profit

organisations that are likely to be at risk or likely to be abused

for financing of terrorism;

(b) the findings of a risk assessment, trend or typology report

identifying that due to the activity or characteristic of a non-

profit organisation it is likely to be at risk or likely to be abused

for financing of terrorism;

profit organisation;

(d) an activity or a characteristic of a non-profit organisation that

is likely to be at risk or likely to be abused for financing of

terrorism;

(e) a non-profit organisation that is, amongst others, involved in -

(i) the cross-border movement of funds;

(ii) complex international transactions or structures;

(iii) cash fund-raising from anonymous sources; or

(iv) transferring or disbursing funds to entities not

associated with its programmes or activities; or

(f) any other matter making a non-profit organisation likely to be

at risk or likely to be abused for financing of terrorism.

(6) The identified non-profit organisation must, within the period

stated in the notice referred to in subsection (4), register with the Centre as an

identified non-profit organisation for the purposes of this Act in accordance

with any prescribed registration requirements.

(7) The Centre must keep a register of all non-profit organisations

identified in terms of subsection (4) and the Centre must implement the

necessary control measures on the identified non-profit organisations to combat

the risk of financing of terrorism.

(8) The Centre has power to disseminate information on the

identified non-profit organisations to domestic or foreign competent authorities

or agencies that have similar powers and duties as that of the Centre using

dedicated and secure channels for such dissemination.

(9) Without prejudice to any other remedies available to the Centre

in terms of this Act or any other law, the Centre may make an urgent application

to the High Court for -

(a) an order to restrain an identified non-profit organisation from

continuing operating its business; or

36 Government Gazette 21 July 2023 8139

Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(b) the cancellation of the registration or licence of the identified

non-profit organisation.

(10) The Minister may, in respect of an identified non-profit

organisation, prescribe -

(a) the registration details and applicable requirements that must

be updated and verified in terms of subsection (2);

(b) governing documents, management and control structure that

an identified non-profit organisation must have in place;

may be removed from the register of identified non-profit

organisations;

(d) obligations that an identified non-profit organisation must

comply with, including but not limited to -

(i) the keeping of records by the identified non-profit

organisation;

(ii) establishing strong financial controls, monitoring

systems and procedures to combat the financing of

terrorism; and

(iii) disclosing the identity of donors and beneficiaries of

donations.

(11) A non-profit organisation or an identified non-profit organisation

that contravenes or fails to comply with subsection (2) or (6) commits an offence

and is liable to a fine not exceeding N$100 million or, where the commission of

the offence is attributable to a representative of the organisation, to such fine or

imprisonment for a period not exceeding 30 years, or to both such fine and such

imprisonment.

Application of sections 31, 51, 52, 53, 54, 55, 56, 58, 59, 60, 61, 62 and 65

35B. Sections 31, 51, 52, 53, 54, 55, 56, 58, 59, 60, 61, 62 and 65 apply

with the necessary changes to an identified non-profit organisation.”.

Substitution of section 39 of Act No. 13 of 2012 as amended by section 63 of

Act No. 4 of 2014

32. The principal Act is amended by the substitution for section 39 with

the following section:

“Accountable institutions with foreign branches and subsidiaries

39. (1) An accountable institution with foreign branches

or majority-owned subsidiaries must ensure that a group-wide anti-money

laundering and combating the financing of terrorism or proliferation programme

are implemented by its foreign branches or subsidiaries.

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(2) An accountable institution must ensure that the obligations

contemplated in section 20A apply to its foreign branches and subsidiaries and

in addition must include -

(a) policies and procedures for information sharing within the

group of institutions for purposes of customer due diligence

and money laundering and financing of terrorism or

proliferation for purposes of risk management;

(b) information on customers, accounts and transactions, including

information on transactions and activities which appear unusual

from branches and subsidiaries for purposes of anti-money

laundering and the financing of terrorism or proliferation, or

vice versa; and

information exchanged.

(3) An accountable institution must ensure that its foreign branches

or majority owned subsidiaries apply measures -

(a) against money laundering and the financing of terrorism or

proliferation; and

(b) on handling of proceeds of crime,

that are not less stringent than the measures provided for in terms of this Act and

to the extent that the laws of the foreign country permit.

(4) An accountable institution must apply appropriate additional

measures to manage money laundering and financing of terrorism or proliferation

if the foreign country in which the branch or subsidiary is located does not

permit the proper implementation of the measures set out in this Act, and the

accountable institution must inform the supervisory authority accordingly.

(5) Any accountable institution that contravenes or fails to comply

with this section commits an offence and is liable to a fine not exceeding N$100

million or, where the commission of the offence is attributable to a representative

of the accountable institution, to such fine or imprisonment for a period not

exceeding 30 years, or to both such fine and such imprisonment.”.

Amendment of section 42 of Act No. 13 of 2012 as amended by section 63 of

Act No. 4 of 2014

33. Section 42 of the principal Act is amended by the substitution for the

introductory sentence of subsection (1) with the following introductory sentence:

“(1) If the Centre[, after consulting an accountable or reporting

institution,] has reasonable grounds to suspect that a transaction or a proposed

transaction may involve the proceeds of unlawful activities or may constitute

money laundering or the financing of terrorism or proliferation[;], it may direct

[the] an accountable or a reporting institution in writing not to proceed with the

carrying out of that transaction or any other transaction in respect of the funds

affected by that transaction or proposed transaction for a period determined by

the Centre, which may not be more than [12] 18 working days, in order to allow

the Centre -”.

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

Insertion of section 44A in Act No. 13 of 2012

34. The principal Act is amended by the insertion after section 44 of the

following section:

“Sharing of information between accountable and reporting institutions

44A. (1) Despite the Banking Institutions Act, 1998 (Act No. 2

of 1998) or any other law prohibiting the sharing of information of confidentiality

or secrecy nature between accountable and reporting institutions, the Director

may, in furtherance of the objects of this Act, determine the nature and manner

in which such information may be shared between the institutions in order to

strengthen effort to combat money laundering and financing of terrorism or

proliferation activities.

(2) The sharing of information under subsection (1) must be for

purposes of -

(a) investigation and reporting of any suspicious transaction in

terms of this Act;

(b) establishing the identity of a client or beneficial owner in

terms of this Act;

Act;

(d) conducting due diligence on a correspondent banking

relationship; or

(e) compliance with the requirements for the screening of

electronic funds transfer and wire transfer.”.

Substitution of section 47 of Act No. 13 of 2012

35. The principal Act is amended by the substitution for section 47 with the

following section:

“Reports made to Centre not admissible as evidence

47. For the purposes of this Act -

(a) information reported to the Centre or shared by the Centre; or

(b) intelligence shared with the Centre or shared by the Centre,

is not admissible as evidence in a matter before court.”.

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

Amendment of section 48 of Act No. 13 of 2012 as amended by section 63 of

Act No. 4 of 2014

36. Section 48 of the principal Act is amended -

(a) in subsection (3) by the substitution for paragraph (a) with the following

paragraph:

“(a) the name of the client or of the importer or exporter, parties to

or related to the transaction or any person or entity acting on

their behalf;”;

(b) by the substitution for subsection (8) with the following subsection:

“(8) Despite anything to the contrary in subsection (4) the

Centre may, spontaneously or upon request, disclose any information to

an institution or agency in a foreign state that has the powers and duties

similar to those of the Centre under this Act if the Centre is satisfied

that that corresponding institution has given appropriate written

undertakings -

(a) for protecting the confidentiality of any information

communicated to it; [and]

(b) for controlling the use that will be made of the

information, including an undertaking that it will not

be used as evidence in any proceedings[.]; and

for which it has been requested and provided unless the

Centre has given consent to the foreign institution or

agency to use the information for any other purpose.”.

Amendment of section 49 of Act No. 13 of 2012

37. Section 49 of the principal Act is amended in subsection (1) by the

deletion of paragraph (d).

Substitution of heading of section 50 of Act No. 13 of 2012

38. The principal Act is amended by the substitution for the heading of

section 50 with the following heading:

“Protection of providers of information”.

Amendment of section 51 of Act No. 13 of 2012

39. Section 51 of the principal Act is amended by the substitution for

subsection (2) with the following subsection:

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

“(2) Despite the penalties provided for in terms of [sub]sections

20A(13), 21(5), 21A(6), 22(6), 23(3), 23A(4), 24(3), 25(8), 26(4), 27[(3)]

(4), 31(3), 32(2), 33(5), 34(7), 35[(12)]18 and (19), 35A(11), 39(10), 40(3),

42(2) and 43(5), the Centre or a supervisory body may, if the circumstances

of the non-compliance so justif[ies]y, first exhaust measures provided for in

terms of sections 54, 55, 56 and 60.”.

Amendment of section 56 of Act No. 13 of 2012

40. Section 56 of the principal Act is amended -

(a) by the substitution for the introductory sentence of subsection (2) with

the following introductory sentence:

“(2) In determining an appropriate administrative sanction,

the Centre or the supervisory body must consider, amongst others, the

following factors -”;

(b) by the substitution for subsection (3) with the following subsection:

“(3) The Centre or a supervisory body [after consultation

with each other, and where applicable, after consultation with

relevant regulatory body,] may impose any one or more of the

following administrative sanctions -

(a) a caution not to repeat the conduct which led to the

non-compliance referred to in subsection (1);

(b) a reprimand;

arrangements;

(d) the restriction or suspension of certain identified

business activities;

(e) suspension of licence to carry on business activities; or

(f) a financial penalty, not exceeding N$10 million[, as

determined by the Centre, after consultation with

the relevant supervisory or regulatory bodies].”;

“(6) After considering any representations and the factors

referred to in subsection (2), the Centre or the supervisory body[,

subject to subsection (8),] may impose an administrative sanction the

Centre or supervisory body considers appropriate.”;

(d) in subsection (7) by the substitution for paragraph (a) with the following

paragraph:

“(a) the decision and the reasons [therefor] for the decision; and”;

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(e) by the deletion of subsection (8);

(f) by the substitution for subsection (9) with the following subsection:

“(9) Any financial penalty imposed must be paid into [the

bank account of the Fund] an account specified in the notice given to

the accountable or reporting institution or person, within the period and

in the manner as may be specified in the relevant notice.”;

(g) in subsection (14) by the substitution for paragraph (b) with the

following paragraph:

“(b) the appeal board confirms the decision of the Centre or

supervisory body, where an institution has appealed in terms

of section 58.”.

Amendment of section 67 of Act No. 13 of 2012 as amended by section 63 of

Act No. 4 of 2014

41. Section 67 of the principal Act is amended in subsection (1) by -

(a) the substitution for paragraph (d) with the following paragraph:

“(d) internal rules to be formulated and implemented in terms of

section [39] 20A;”;

(b) the substitution for paragraphs (f) and (g) with the following paragraphs:

“(f) the reasonable steps to be taken by an accountable or reporting

institution to establish the identity of an existing client or

prospective client; [and]

(g) the procedures to be followed when cash or bearer negotiable

instruments are forfeited to the State in terms of subsection

36(7); [and]

(gA) the turnover of private entities whose senior executives are

regarded as prominent influential persons; and”.

Amendment of Schedule 1 of Act No. 13 of 2012 as amended by Government

Notice No. 339 of 2019

42. Schedule 1 of the principal Act is amended by -

(a) the substitution for the paragraph 2 with the following paragraph:

“2. Any other person or entity that, as part of their normal business

activities, buys and/or sells real estate [for cash].”;

(b) the substitution for the paragraph 8 with the following paragraph:

42 Government Gazette 21 July 2023 8139

Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

“8. Any person or entity trading in [the following], or doing

business in or as -

(a) money market instruments;

(b) foreign exchange;

(d) exchange, interest rate and index instruments;

(e) transferable securities;

(f) commodity futures trading; and

(g) any other securities services.”;

“14. Any person or entity regulated by the Namibia Financial

Institutions Supervisory Authority (NAMFISA) who conducts

as a business one or more of the following activities -

(a) Individual and/or Collective portfolio management;

(b) Long term insurer registered in terms of the Long-Term

Insurance Act, 1998 (Act No. 5 of 1998), including an agent or

broker of the insurer;

(d) Friendly society; and

(e) Unit trust managers.”;

(d) the substitution for paragraph 18 with the following paragraph:

“18. A person that carries on the business of a virtual asset service

provider.”.

Amendment of Schedule 3 of Act No. 13 of 2012

43. Schedule 3 of the principal Act is amended by the deletion of paragraph

Addition of Schedule 5 and Schedule 6 in Act No. 13 of 2012

44. The principal Act is amended by the addition after Schedule 4 of

the following Schedules:

8139 Government Gazette 21 July 2023 43

Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

“SCHEDULE 5

CATEGORIES OF NATURAL PERSONS REGARDED AS BENEFICIAL OWNERS

(SECTION 3A)

The followings are categories of natural persons regarded as beneficial owners:

1. A natural person on whose behalf a transaction is conducted.

2. In relation to a legal person -

(a) a natural person who directly or indirectly or through a trust, other legal

person or other legal arrangements holds 25 percent or more of the

shares, voting rights or other ownership interest in the legal person, and

where -

(i) there is doubt as to whether the natural person identified is

the beneficial owner or the natural person on whose behalf a

transaction is conducted; or

(ii) a natural person is not identified as the beneficial owner,

the natural person exercising control over the legal person through

other means is regarded as the beneficial owner;

(b) where a beneficial owner cannot be identified in terms of subparagraph

(a), a natural person who holds the position of senior management

in the legal person and record that the person has been identified as

holding that position;

arrangements who jointly exercise direct or indirect control over the

legal person;

(d) natural person who directly or indirectly controls several legal persons

and holds a combination of 25 percent or more of shares, voting rights

or ownership interest in the legal persons;

(e) a natural person who has the right, directly or indirectly, to appoint or

remove majority of the board of directors of the legal person;

(f) a natural person who has the power to materially influence the

decision-making or policy of the legal person;

(g) a natural person who derives substantive economic benefits, including

dividend, right to profit, enjoyment of assets of legal person or able to

use significant assets of the legal person, even if the person has no other

formal link to the legal person; or

(h) a natural person who has influence or ultimate control over the legal

person through any other means.

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3. In relations to a trust -

(a) the settlor;

(b) a trustee;

(d) a natural person who is a beneficiary of a trust or a class of beneficiaries

if the individuals benefiting from the trust are yet to be determined;

(e) any other natural person exercising ultimate control over the trust by

other means; or

(f) any other natural person exercising ultimate effective control over a

trust by means of direct or indirect ownership or by other means, such

that when the person acts alone or jointly with another person or with

the consent of another person, the person has ultimate power to -

(i) dispose of, advance, lend, invest, pay or apply trust property;

(ii) vary or terminate the trust;

(iii) add or remove a person as a beneficiary or as a class of

beneficiaries of the trust;

(iv) appoint or remove a trustee or give another person control over

the trust; or

(v) direct, withhold consent or overrule the exercise of a power

referred to in subparagraphs (i) to (iv).

4. In relation to other legal arrangements, the natural person holding an equivalent

or a similar position referred to in paragraph (3).

5. In the case of insurance, the ultimate natural person who is the beneficiary of

proceeds of a life insurance policy or other related investment policy when an

insured event covered by the policy occurs.

6. In relation to partnership, a natural person who ultimately owns or controls the

partnership by -

(a) holding 25 percent or more of the ownership interest in the partnership;

(b) being able to exercise, directly or indirectly, 25 percent or more of the

votes in decision-making on amending the agreement on which the

partnership is based or regarding the performance of that agreement

otherwise than by acts of management, in so far as in that agreement

decision-making by majority of votes is required, and where -

(i) there is doubt as to whether the natural person identified is

the beneficial owner or the natural person on whose behalf a

transaction is conducted; or

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Act No. 6, 2023 FINANCIAL INTELLIGENCE AMENDMENT ACT, 2023

(ii) a natural person cannot be identified as the beneficial owner,

the person who holds the position of senior management in the partnership and

record that the person has been identified as holding that position.

SCHEDULE 6

PROMINENT INFLUENTIAL PERSONS

(Section 3A)

1. Heads of state, heads of government, ministers and deputy ministers, assistant

ministers, senior politicians and senior government officials.

2. Members of parliament or similar legislative bodies.

3. Members of the governing bodies of political parties.

4. Significant or important political parties officials.

5. Members of local authority councils and members of regional councils.

6. Senior management, executives and board members of public-owned

enterprises.

7. Judicial officers.

8. Ambassadors and high-ranking officers in the armed forces.

9. Members of the administrative, management or supervisory bodies of

public-owned enterprises.

10. Traditional leaders as defined in Section 1 of the Traditional Authorities

Act, 2000 (Act No. 25 of 2000).

11. Religious leaders.

12. Senior executives of private entities where the private entities are of such

turnover as may be prescribed.

13. Senior executives of international organisations operating in Namibia.”.

Short title

45. This Act is called the Financial Intelligence Amendment Act, 2023.

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