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COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF NAMIBIA
30 July 2008
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Committee on the Elimination
of Racial Discrimination
30 July 2008
The Committee on the Elimination of Racial Discrimination has considered the combined eighth to twelfth periodic report of Namibia on how that State party is fulfilling its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.
Tousy Namiseb, Chief of Law Reform in the Ministry of Justice of Namibia, introducing the report, said that Namibia was a State party to a number of international instruments and upheld the rules of international law. It had put into effect the provisions of international law in the domestic law. There were acts in the Constitution that criminalized racial discrimination and these had been put further into effect with the creation of the Ombudsman's Office which received such complaints. The main aim for Namibia was to build a nation that protected human and group rights. The National Resettlement policy 2001 gave effect special protections for groups such as the San and specifically women.
Gerson Kamatuka, Deputy Director in the Office of the Prime Minister of Namibia, also introducing the report and specifically addressing the issue of the San people of Namibia, said that the natural resources of the San people were slowly depleting and as such they were resorting to other means for survival. The San Development Programme was one measure taken to assist the San people in this change. The Government of Namibia aimed specifically to accelerate San people in education, literacy and resettlement programmes and was building development centres to assist San people in the challenges they faced.
Kokou Mawuena Ika Kana Ewomsan, the Committee Expert serving as country Rapporteur for the report of Namibia, thanked the Namibian delegation for the rich and fruitful dialogue and appreciated the sincerity and frankness in which they dealt with the various difficulties that presented challenges for the country. A number of problems had been raised by the Committee that remained to be addressed. It was the will of the country that was necessary to combat the challenges posed, and the Committee wished that there would be regularity in receiving the State party's reports in order to better combat issues of racism and racial discrimination.
Questions raised by Committee Experts included land redistribution and rights granted to the San people; discriminatory employment practices against the black population; discriminatory measures and policies on land appropriation; the absence of national identification documents; cases of discrimination towards the San bushman people; discrepancies between Government funding for the San and the Ovahimba people, where the Ovahimba people benefited more; the breakdown of people living in Namibia, and what was being done for stateless people; the make-up and participatory requirements for the Council of Traditional Tribal Chiefs; and the legislation on the abolition of the possibility of prosecuting any crimes related to hatred vis-à-vis any racial or ethnic groups.
The Committee reviewed the report of Namibia over two meetings and will issue its concluding observations and recommendations at the end of the session on 15 August.
Namibia is one of the 173 States parties to the International Convention on the Elimination of All Forms of Racial Discrimination and is obligated to submit periodic reports to the Committee on implementation of the provisions of the Convention.
Namibia's delegation, which presented the report, included representatives from the Ministry of Justice; the Ministry of Education; the Office of the Prime Minister and the Ministry of Lands and Resettlement.
When the Committee reconvenes on Wednesday, 30 July at 3 p.m., it will begin consideration of the sixth to seventeenth periodic reports of Togo.
Report of Namibia
The combined eighth to twelfth periodic report of Namibia, submitted in one document (CERD/C/NAM/12), notes that Namibia has a youthful population of 1.4 million out of a total population of 1.8 million, according to the 1991 Population and Housing Census. About 43 per cent of the total population is under 15 years of age and only 3.6 per cent is over the age of 65. Despite rapid urbanization, Namibia is still a mainly rural society with fewer than 30 per cent living in urban areas. Regional population densities vary enormously with almost two-thirds living in the northern regions and less than one-tenth living in the south. Despite the fact that English is the official language of Namibia, the population is extraordinarily diverse in language and culture with more than 11 languages being indigenous to Namibia. Fundamental Human Rights and Freedoms are enshrined in the Constitution, and the executive, legislature and judiciary. Since the coming into force of the Constitution, the Parliament has enacted the Racial Discrimination Prohibition Act 1991. This is the principal legislation which criminalizes acts of racial discrimination and prohibits propagation of racial discrimination and the practice of apartheid. Moreover, the Ombudsman's Office has a constitutional and statutory responsibility to call public and private institutions to order whenever they are guilty of acts of racial discrimination, as part of its enforcement of fundamental human rights.
The Government of the Republic of Namibia has pursued policies and implemented various programmes for the specific improvement of the living standards of persons from marginalized communities. In Namibia, the San and Ovahimba were considered primary beneficiaries of Government empowerment programmes in diverse fields of socio-economic improvement. In order to promote access to education for marginalized communities the Government also set up an Inter-sectoral Task Force to formulate policy guidelines on educationally marginalized children to coordinate the activities of NGOs, Ministries, and other stakeholders regarding these children. A policy document entitled "National options for educationally marginalized children" was formulated and adopted by Government in 1998. In addition to strategies for access to education, the Skoonheid and Drimiopsis Project, a literacy programme has also been set-up. The programme aims to empower settled San speaking communities at both Drimiopsis and Skoonheid with resources and skills that will contribute towards the enhancement of their livelihood. The San Development Programme 2005 was another development improvement programme set-up by the Namibian Government. The initial stages of the process included visitations by the Deputy Prime Minister to various San communities across Namibia. These meetings were aimed at consultations with the San people on their needs and what they considered as pressing challenges facing them.
Presentation of Report
TOUSY NAMISEB, Chief of Law Reform in the Ministry of Justice of Namibia, introducing the report, said that Namibia came out of the apartheid era of South Africa and did not intend to go back to such an era. Namibia was a State party to a number of international instruments and upheld the rules of international law. It had put into effect the provisions of international law in the domestic law. There were acts in the Constitution that criminalized racial discrimination and these had been put further into effect with the creation of the Ombudsman's Office who received such complaints. The main aim for Namibia was to build a nation that protected human and group rights. It was noted with importance in terms of the make-up of the Government that the Council of Traditional Leaders was established to advise the President in traditional matters, and that there was a separation of powers in terms of the Executive, Legislature and Judiciary. The amendment of 1998 gave effect to judicial precedents in cases which ruled on constitutionality of article 11 where no persons shall be subjected to arbitrary arrest or detention.
On the issue of access to land, Mr. Namiseb noted that land reform programmes had taken place with an aim at resettling previously disadvantaged groups or communities. There were special protections for groups such as the San and these were specifically aimed at women as well. The National Resettlement policy 2001 gave effect to this. Under the Racial Discrimination Act, racial groups were defined as groups of persons defined by reference to colour, race, nationality, and ethnic/national origin. On affirmative action, a number of measures were underway, specifically in fields of employment and land reform. The Employment Act of 1998 made provisions for the progressive reality of this aim. The Employment Equity Commission had focused on training programmes in dealing with issues of discrimination within the workplace. Employers had submitted reports to the Commission on action plans outlined to combat these issues. The Labour Advisory Council was responsible for following up and monitoring the implementation of such plans. Land reform affirmative action measures were aimed at previously disadvantaged blacks/coloured groups and specifically for San farm workers groups. Act 6 1996 dealt with the acquisition of farm lands and the redistribution of those lands to the previously disadvantaged groups, especially women. Affirmative Action loan schemes had also been implemented to assist disadvantaged groups in acquiring land.
The Ombudsman was accredited by the ICC and was engaged in human rights awareness campaigns. The Ombudsman Human Rights Advisory Committee included non governmental organizations, churches, civil society organizations and Government ministries. The Human Rights Documentation Center at the University of Namibia disseminated public documents including the international human rights instruments through their library website. The Centre also offered courses and training for law enforcement officers.
GERSON KAMATUKA, Deputy Director in the Office of the Prime Minister of Namibia, also introducing the report and specifically addressing the issue of the San people of Namibia, said that they were staying away from using the word indigenous, since all the people of Africa were indigenous. The natural resources of the San people were slowly depleting and as such they were resorting to other means for survival. The San Development Programme was one measure taken to assist the San people in this change. The Government of Namibia aimed specifically to accelerate San people in education, literacy and resettlement programmes and was building development centres to assist San people in the challenges they faced. The Government had worked with local community members, agencies and non governmental organizations to implement these programmes and centres.
Response by the Delegation to Written Questions Submitted in Advance
In response to questions submitted in advance by Committee Experts, the delegation said it was important to note that Namibia had a monist system, where the very text of the Convention was put into effect in domestic law. Law reform was a very slow but ongoing process. The Law Reform and Development Commission had been established and was an independent body; it was made up of lawyers, members of universities, the Government and law society. One effort of the Commission mentioned was the equalization of rights between spouses, which had been translated into law already. On the special measures for certain communities, the Government's policy was that all decisions must involve communities concerned through the participatory decision making process. The San Development Programme 2005 involved all of the most marginalized people, including their Traditional Authorities. The San Development Programme was recently extended to include the community of Ovahimba in the Kuene Region. The Government of Namibia had taken measures to facilitate the establishment of non governmental organizations with the Namibia Civic Organisations Partnership Policy in December 2005. The goal of the policy was for the Government in consultation with civil society to create a "Working Partnership", a partnership that worked for the entire country, its citizens and their civic organizations and for the Government.
A concern of the Committee was the Traditional Authorities Act and if it included all indigenous groups including the San and Damara communities. The delegation said that the Government recognized 42 Traditional Authorities with the enactment of the Traditional Authorities Act, Act 25 of 2000, which included all indigenous groups, including the San and Damara ethnic groups. Five Damara ethnic groups have been recognized with two still pending recognition, but they were in the process of recognition before the courts. In addition three of the San ethnic groups had been recognized with two remaining to be recognized. On land acquisition for resettlement purposes, it was noted that the Government had established the Ministry of Lands and Resettlement. Since its inception the Ministry dealt with land redistribution. Land redistribution was addressed in regard to previous distribution requirements that were done so through different modes and beneficiaries. Currently there were new policies and directives that gave guidance on how land should be distributed, namely through the Agricultural Land Reform Act, National Land Policy, Resettlement Policy and Communal Land Reform Act. Targeted groups for the land resettlement programme were San communities, ex soldiers, returnees, displaces persons, people with disabilities and people from overcrowded communal areas.
In response to concerns on the dispossession of indigenous groups from their traditional lands, the delegation said that most of Namibia's protected areas were proclaimed before Namibia's Independence in 1990 and had been maintained as an island separated from surrounding people, their land uses and local economies. In 1996, the Ministry of Environment and Tourism introduced legislation that gave conditional use of rights over wildlife to communities in communal areas that formed a management unit called a conservancy. Moreover, no indigenous groups had ever been dispossessed of their traditional land in connection with the establishment of game reserves, game parks and national parks.
The delegation said that the issue of marginalized communities' enjoyment of economic, social and cultural rights had been addressed through programmes which had been implemented. These communities had been provided with educational services closer to their homes and satellite schools were also established in the Tsumkwe area to accommodate the San speaking Namibians for example. Instruction for the first three years of education was in Ju/hoasi, the local language, with English as a subject. Following this English became the medium of instruction with their mother tongue as a subject throughout their schooling. Further, mobile schools were also introduced for the Ovahimba community which ensured that schools moved with the community as they were nomadic in search of better grazing space for their animals.
With regard to Committee concerns on equal representation in the national Government, the delegation said that the Namibian Constitution gave effect to regional and local authorities' boundaries to be geographically delineated without any reference to race, colour and ethnic origin of the inhabitants of the areas. Thus, it ensured the integration of ethnic groups which were previously segregated by the apartheid regime. Members of the Regional Council and local authorities were democratically elected from these regions and local authorities. Through this arrangement, each individual who qualified had the right to become a member of a regional council or Local Authority regardless of his/her race, colour or ethnic origin. Further, article 10 of the Constitution prevented any form of discrimination on the grounds of sex, race, colour, ethnic origin, creed or social or economic status, while article 17 guaranteed the right of every citizen to be elected to public office.
With regard to the strengthening of the mandate and financial resources of the Ombudsman's Office, the delegation said that there were two regional offices; one in the south and the other in the north of the country. In 2007 the Cabinet approved the enlargement of the staff component with the addition of three investigators and one administrative officer. The Government intended to establish more regional offices in other regions of the country. The 2008-2009 budget of the Ombudsman's Office had been increased by 28.7 per cent and was scheduled to increase further by 3.55 per cent in the 2009-2010 budget.
On measures taken to raise awareness of racial discrimination due to low numbers of complaints received to date, the delegation said that the Ombudsman‘s Office had been conducting public hearings throughout the country in order to establish the true state of affairs in Namibia as it related to racism and racial discrimination. This also gave citizens who may not have reported an incident for whatever reason an incentive to do so. The second purpose of the hearings was to raise awareness of racism and racial discrimination. The hearings were scheduled to begin on 24 July 2008.
Oral Questions Raised by the Rapporteur and Experts
KOKOU MAWUENA IKA KANA EWOMSAN, the Committee Expert serving as country Rapporteur for the report of Namibia, said that Namibia was a large country in southern Africa, with a population of less than 2 million and where half were of a particular linguistic group, with a total of 11 indigenous languages. Sixty-five per cent of the population lived in rural areas and made up the main population living in extreme poverty, and 35 per cent lived in urban areas. The Constitution adopted in 1990 set up a two chamber system with a General Assembly and a National Council. The last elections of the President were found to be democratic; however, the political parties had an ethnic basis. The Government had been accused of giving too much assistance to the majority group and the minority groups accused the Government of being unfavourable to their groups. He asked what the conditions were for the establishment of a political party.
The Committee noted with satisfaction that the Namibian Constitution contained acts which gave effect to the provisions of the Convention before the law, the Rapporteur said. Also noted were the rights granted to all migrants and their families. Under article 14 the Committee requested that the State make a declaration on racial discrimination. There was a need for the State to train police and military forces. He noted that the State party had taken social and economic measures for the benefit of vulnerable communities which were envisaged throughout the report. In particular, measures were needed for better access to land, food and education.
Mr. Ewomsan noted that the Legal Assistance Office reported that the Government had not been successful in the redistribution of land, specifically to the San people. These people were seen as the main victims of land appropriation. The San suffered from high rates of AIDS. They were the poorest people and had also been victims, in particular women, of rape. The San domestic workers received very low wages and in some cases worked for food rations or alcohol. This illustrated the unfavourable situation of these people. Further, San children did not receive the same rights attributed to children of other communities with regard to education access. They were also susceptible to prostitution and sexual exploitation. On the problem of identification, many children did not have identification documents with birth dates or citizenship; he asked the delegation what measures was the State taking to address this issue.
On employment. Mr. Ewomsan said there were discriminatory practices against the black population, specifically evident with the case in May 1998 where a racist white employer dismissed employees because they asked for uniforms, and the employer said that God had given them their uniforms. What training programmes ensured that such cases were not repeated? On the lack of minimum wages in the country, it was of concern with specific regard to the agriculture workers who were being exploited. The delegation was asked what the State was doing to protect the rights of the black population in this regard.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, how the Government ensured that marginalized people got back the lands they lost; what affirmative action measures were taken with regard to the San bushman community; why there were discrepancies in Government support between the San and the Ovahimba people; why after 20 years of independence was land reform so minuscule and perhaps the concept of willing-buyer and willing-seller should be reviewed; was there discrimination in Namibia and if so who was being discriminated and what actions were being taken to address such cases; and what was the methodology adopted in the census surveys?
On the San Development Programme, Experts viewed it as a top-down programme where the Government seemed to have tried to desensitize the people in the country of the plight of the Sani, and it was not clear how the San people were consulted in the creation of the programme or if it was imposed on them? Was there any pressure from those working on the programme to change the lifestyle of the Sani with the intent to take over the land in which the Sani currently resided? On refugees, the delegation noted a concerted effort on the issue. However, since Namibia was so concerned with the rights of refugees, why had it not signed the OAU Convention on Refugees 1969?
A number of Committee Experts noted that traditionally the San bushman felt alienated in Namibia and some non governmental organizations had said that the Government ran programmes in a top-down approach which was cause for concern. The information provided to the Committee from various sources continued to note cases of discrimination towards the San bushman people. The San bushman people were victims of the expropriation of land, extreme poverty, the AIDS/HIV epidemic and under representation of that community in Government structures. Further a number of non governmental organizations had noted that the majority ethnic group of the Ovahimba had received greater funding and incentives from the Government than the San people.
Response by Delegation to Oral Questions
Responding to oral questions raised, the delegation said, with regard to the International Convention on the Protection of All Migrant Workers and Members of Their Families and the right to freedom of political representation, there was not enough information to provide full answers and therefore the delegation would provide the Committee with written answers at a later time. On the concerns raised with regard for the need to increase efforts and measures taken on the training in human rights for law enforcement officers, it was noted that there were specific training programmes ongoing. Training for judges of higher courts and the magistrates had been underway. It was further noted that the magistrates had dealt with the bulk of cases on racial discrimination and Namibia welcomed any assistance from the Committee and other United Nations Agencies furthering these efforts.
On the San people and the general concern of the Committee that they were being marginalized, the delegation noted that given the historical process Namibia had gone through, programmes and structures were implemented to progress the state of the San people. On the concerns with regard to ending the cycle of poverty among the San people, it was noted that there was a need for an impact assessment to know what the rate of success was for the efforts already made, and that Namibia would amend its strategies where necessary once accurate data was received. On minimum labour wages, the Labour Act 2007 would be in effect in August 2008 which gave light to specific rights for labour workers such as farmers and others in the community who were previously exploited.
With regard to customary law and the extent of its application to national law, the delegation said that customary law was applicable to the extent that those laws were not in violation of the Constitution. On the Committee's concern with regard to the 15 people arrested and subjected to torture, the delegation noted the issue with great priority and importance and said that they had not been aware of such a case, and would follow up once details were available. With regard to concerns on registration numbers of refugees and asylum seekers, it was noted that all refugees were kept in camps and managed through the camps in which they resided, however, there were refugees who were integrated in society through engagement in employment activities as well as the refugees who sought studies, and as such were not regulated through the camps.
On the Committee's concern with regard to ancestral land claims., the delegation said that the Constitution did not allow for ancestral land claims, which had come about in the Land Conference 1991, where papers submitted by academic experts and others throughout the country were assessed and consensus was achieved that ancestral land claims could not be made. On the excessive time which had spanned for land redistribution, it was said that Namibia was aware that the process was slow and that very few people had received lands to date. However, there had been court challenges to consider changing the current approaches which had resulted in an audit 2003-2005. The audit explored, amongst other things, the legislative framework, delivery rate and land demand and hunger, where in conclusion recommendations were adopted by the cabinet in 2005 which had been translated into active programmes to be implemented. Further, challenges remained between the land, hunger and the system in which the people were operating and that needed to be considered ongoing.
On the question of expropriations, the delegation said that article 16 of the Constitution stated that expropriations could be done as long as compensation was provided. Where the Government introduced development projects in which communities were effected the Government had paid compensation to these communities for improvement purposes only. With regard to the willing-buyer and willing-seller programme it was noted that progress was slow, however, there was a debate ongoing throughout the country and therefore potential changes were in the pipeline which were not yet identified as those debates had not yet concluded.
With regard to concerns and questions raised by the Committee on the disposition of land after independence with regard to the San people or any people in Namibia, the delegation said the Government was dealing with the aftermath of the apartheid and was trying to allocate land which could be used for farming. Some challenges remained. The Land Reform programme was made up of two components, one was the acquisition of farming land that covered 12,000 farming units, which were owned by 4,000 families or individuals who were predominantly white. The aim of the Government was to redistribute these lands to the groups in greater need with the aim for these people to become self sustainable through the production of their own food and to integrate into the economy, and the other was to secure rights for the peoples living in communal areas.
Further the delegation said that the Ministry of Lands and Resettlement was set-up to oversee an expeditious land reform programme. In 2003 a permanent technical team was established to review the existing policy, framework, and institutional and environmental sustainability including other cross cutting issues. Out of the issues identified, a strategy plan was devised by the Government called the Vision 2030, which envisaged making Namibia a developed and industrialized nation. The land reform programme was linked to a number of plans and goals already set forth by the Government in a number of other social and economic development programmes. The redistribution of land in the commercial areas was targeted for people who had no land, income or livestock. Thus the main targeted groups were members of the San communities, former soldiers, displaced persons, people with disabilities and people coming from overcrowded areas.
With regard to the San Development Programme, the delegation said that the Government of the Republic of Namibia was not living in denial. It was true that the San people were living in extreme poverty and the delegation assured the Committee that the Government acknowledged this fact. Access to schools and education was not existent. Resettlement and education projects were underway in order to advance the state of living conditions for the San people. Currently the Government had launched a campaign on the need for the people of the country to register. Field teams, by including doctors and other specialists were set-up to combat this issue. Further it was stated that the Namibian Government would not sleep while injustices continued. Instruments and programmes were currently in place for all Namibians, including the most marginalized people, specifically women to be represented politically. The San people were excluded from the employment sector, and therefore the Government was focused on educating San people to ensure that there were trained to be integrated into the economy. Cultural rights were protected under the Constitution, and the Government aimed development programmes to distribute wealth and resources without hindering culture.
With regard to the training of the police force, it was noted that in Namibia the Racial Discrimination Prohibition Act 1991 criminalized acts of racial discrimination and prohibited propagation of racial discrimination and the practice of apartheid, and it was noted that if the rights of an individual were covered under such legislation, the individual was free to evoke the provisions of the International Convention on the Elimination of All Forms of Discrimination and other international human rights instruments before the courts , as Namibia had a monist State system. As such it was noted that despite the lack of training programmes there were a number of protections granted to individuals. However, it was also noted that due to such provisions it was important for law enforcement officials to be trained so as to ensure that they were knowledgeable in the field of human rights and the protections granted through international instruments and its applicability in the country.
Further Oral Questions Posed by Experts
In a second round of questions and concerns raised by Committee Experts, an Expert noted that Table 1 in the written report stated the breakdown of people living in Namibia, and asked were there any stateless people living in Namibia, and if so what was being done for them? A source of concern for an Expert was the delegation's mention in the written report of the Council of Traditional Tribal Chiefs and he asked how it was made up and who could participate in the Council? Furthermore, with regard to the legislation on the abolition of the possibility of prosecuting any crimes related to hatred vis-à-vis any racial or ethnic groups, he asked if the delegation could provide comments and further details on that provision as it was cause for great concern.
Replies by the Delegation
Responding to those questions and others, the delegation said with regard to the clarifications on table 1, these indicated the specific population present in Namibia, and where it stated "all other countries" it referred to non-African countries, and where it stated "no state", represented the people who took the survey and did not indicate citizenship, which totaled 381 people. It was noted that a person could acquire citizenship through registration, naturalization or through marriage in Namibia. Citizenship would only be removed in cases where the person acquired a different citizenship, and the Government was committed to ensuring that persons were not left in a "stateless" status.
In response to an Expert's concern with regard to current legislation on the abolition of the possibility of prosecuting any crimes related to hatred vis-à-vis any racial or ethnic groups, the delegation said that they noted this concern and had intended to include a recommendation for the review and reconsideration of the 1998 amendment to the abolition act. With regard to the questions raised by a Committee Expert on the make-up and participatory requirements of the Council of Traditional Tribal Chiefs, the delegation said that Namibia had recognized 42 Traditional Authorities, and membership in the Council depended on the recognition status; further details regarding the make-up of the Council of Traditional Tribal Chiefs would be provided at a later time in a written response.
Preliminary Concluding Observations
KOKOU MAWUENA IKA KANA EWOMSAN, the Committee Expert serving as country Rapporteur for the report of Namibia, thanked the Namibian delegation for the rich and fruitful dialogue and appreciated the sincerity and frankness in which they dealt with the various difficulties that presented challenges for the country. A number of problems had been raised by the Committee that remained to be addressed. It was the will of Namibia that was necessary to combat the challenges posed, and the Committee wished that there would be regularity in receiving the reports in order to better combat issues of racism and racial discrimination.
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For use of information media; not an official record
of Racial Discrimination
30 July 2008
The Committee on the Elimination of Racial Discrimination has considered the combined eighth to twelfth periodic report of Namibia on how that State party is fulfilling its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination.
Tousy Namiseb, Chief of Law Reform in the Ministry of Justice of Namibia, introducing the report, said that Namibia was a State party to a number of international instruments and upheld the rules of international law. It had put into effect the provisions of international law in the domestic law. There were acts in the Constitution that criminalized racial discrimination and these had been put further into effect with the creation of the Ombudsman's Office which received such complaints. The main aim for Namibia was to build a nation that protected human and group rights. The National Resettlement policy 2001 gave effect special protections for groups such as the San and specifically women.
Gerson Kamatuka, Deputy Director in the Office of the Prime Minister of Namibia, also introducing the report and specifically addressing the issue of the San people of Namibia, said that the natural resources of the San people were slowly depleting and as such they were resorting to other means for survival. The San Development Programme was one measure taken to assist the San people in this change. The Government of Namibia aimed specifically to accelerate San people in education, literacy and resettlement programmes and was building development centres to assist San people in the challenges they faced.
Kokou Mawuena Ika Kana Ewomsan, the Committee Expert serving as country Rapporteur for the report of Namibia, thanked the Namibian delegation for the rich and fruitful dialogue and appreciated the sincerity and frankness in which they dealt with the various difficulties that presented challenges for the country. A number of problems had been raised by the Committee that remained to be addressed. It was the will of the country that was necessary to combat the challenges posed, and the Committee wished that there would be regularity in receiving the State party's reports in order to better combat issues of racism and racial discrimination.
Questions raised by Committee Experts included land redistribution and rights granted to the San people; discriminatory employment practices against the black population; discriminatory measures and policies on land appropriation; the absence of national identification documents; cases of discrimination towards the San bushman people; discrepancies between Government funding for the San and the Ovahimba people, where the Ovahimba people benefited more; the breakdown of people living in Namibia, and what was being done for stateless people; the make-up and participatory requirements for the Council of Traditional Tribal Chiefs; and the legislation on the abolition of the possibility of prosecuting any crimes related to hatred vis-à-vis any racial or ethnic groups.
The Committee reviewed the report of Namibia over two meetings and will issue its concluding observations and recommendations at the end of the session on 15 August.
Namibia is one of the 173 States parties to the International Convention on the Elimination of All Forms of Racial Discrimination and is obligated to submit periodic reports to the Committee on implementation of the provisions of the Convention.
Namibia's delegation, which presented the report, included representatives from the Ministry of Justice; the Ministry of Education; the Office of the Prime Minister and the Ministry of Lands and Resettlement.
When the Committee reconvenes on Wednesday, 30 July at 3 p.m., it will begin consideration of the sixth to seventeenth periodic reports of Togo.
Report of Namibia
The combined eighth to twelfth periodic report of Namibia, submitted in one document (CERD/C/NAM/12), notes that Namibia has a youthful population of 1.4 million out of a total population of 1.8 million, according to the 1991 Population and Housing Census. About 43 per cent of the total population is under 15 years of age and only 3.6 per cent is over the age of 65. Despite rapid urbanization, Namibia is still a mainly rural society with fewer than 30 per cent living in urban areas. Regional population densities vary enormously with almost two-thirds living in the northern regions and less than one-tenth living in the south. Despite the fact that English is the official language of Namibia, the population is extraordinarily diverse in language and culture with more than 11 languages being indigenous to Namibia. Fundamental Human Rights and Freedoms are enshrined in the Constitution, and the executive, legislature and judiciary. Since the coming into force of the Constitution, the Parliament has enacted the Racial Discrimination Prohibition Act 1991. This is the principal legislation which criminalizes acts of racial discrimination and prohibits propagation of racial discrimination and the practice of apartheid. Moreover, the Ombudsman's Office has a constitutional and statutory responsibility to call public and private institutions to order whenever they are guilty of acts of racial discrimination, as part of its enforcement of fundamental human rights.
The Government of the Republic of Namibia has pursued policies and implemented various programmes for the specific improvement of the living standards of persons from marginalized communities. In Namibia, the San and Ovahimba were considered primary beneficiaries of Government empowerment programmes in diverse fields of socio-economic improvement. In order to promote access to education for marginalized communities the Government also set up an Inter-sectoral Task Force to formulate policy guidelines on educationally marginalized children to coordinate the activities of NGOs, Ministries, and other stakeholders regarding these children. A policy document entitled "National options for educationally marginalized children" was formulated and adopted by Government in 1998. In addition to strategies for access to education, the Skoonheid and Drimiopsis Project, a literacy programme has also been set-up. The programme aims to empower settled San speaking communities at both Drimiopsis and Skoonheid with resources and skills that will contribute towards the enhancement of their livelihood. The San Development Programme 2005 was another development improvement programme set-up by the Namibian Government. The initial stages of the process included visitations by the Deputy Prime Minister to various San communities across Namibia. These meetings were aimed at consultations with the San people on their needs and what they considered as pressing challenges facing them.
Presentation of Report
TOUSY NAMISEB, Chief of Law Reform in the Ministry of Justice of Namibia, introducing the report, said that Namibia came out of the apartheid era of South Africa and did not intend to go back to such an era. Namibia was a State party to a number of international instruments and upheld the rules of international law. It had put into effect the provisions of international law in the domestic law. There were acts in the Constitution that criminalized racial discrimination and these had been put further into effect with the creation of the Ombudsman's Office who received such complaints. The main aim for Namibia was to build a nation that protected human and group rights. It was noted with importance in terms of the make-up of the Government that the Council of Traditional Leaders was established to advise the President in traditional matters, and that there was a separation of powers in terms of the Executive, Legislature and Judiciary. The amendment of 1998 gave effect to judicial precedents in cases which ruled on constitutionality of article 11 where no persons shall be subjected to arbitrary arrest or detention.
On the issue of access to land, Mr. Namiseb noted that land reform programmes had taken place with an aim at resettling previously disadvantaged groups or communities. There were special protections for groups such as the San and these were specifically aimed at women as well. The National Resettlement policy 2001 gave effect to this. Under the Racial Discrimination Act, racial groups were defined as groups of persons defined by reference to colour, race, nationality, and ethnic/national origin. On affirmative action, a number of measures were underway, specifically in fields of employment and land reform. The Employment Act of 1998 made provisions for the progressive reality of this aim. The Employment Equity Commission had focused on training programmes in dealing with issues of discrimination within the workplace. Employers had submitted reports to the Commission on action plans outlined to combat these issues. The Labour Advisory Council was responsible for following up and monitoring the implementation of such plans. Land reform affirmative action measures were aimed at previously disadvantaged blacks/coloured groups and specifically for San farm workers groups. Act 6 1996 dealt with the acquisition of farm lands and the redistribution of those lands to the previously disadvantaged groups, especially women. Affirmative Action loan schemes had also been implemented to assist disadvantaged groups in acquiring land.
The Ombudsman was accredited by the ICC and was engaged in human rights awareness campaigns. The Ombudsman Human Rights Advisory Committee included non governmental organizations, churches, civil society organizations and Government ministries. The Human Rights Documentation Center at the University of Namibia disseminated public documents including the international human rights instruments through their library website. The Centre also offered courses and training for law enforcement officers.
GERSON KAMATUKA, Deputy Director in the Office of the Prime Minister of Namibia, also introducing the report and specifically addressing the issue of the San people of Namibia, said that they were staying away from using the word indigenous, since all the people of Africa were indigenous. The natural resources of the San people were slowly depleting and as such they were resorting to other means for survival. The San Development Programme was one measure taken to assist the San people in this change. The Government of Namibia aimed specifically to accelerate San people in education, literacy and resettlement programmes and was building development centres to assist San people in the challenges they faced. The Government had worked with local community members, agencies and non governmental organizations to implement these programmes and centres.
Response by the Delegation to Written Questions Submitted in Advance
In response to questions submitted in advance by Committee Experts, the delegation said it was important to note that Namibia had a monist system, where the very text of the Convention was put into effect in domestic law. Law reform was a very slow but ongoing process. The Law Reform and Development Commission had been established and was an independent body; it was made up of lawyers, members of universities, the Government and law society. One effort of the Commission mentioned was the equalization of rights between spouses, which had been translated into law already. On the special measures for certain communities, the Government's policy was that all decisions must involve communities concerned through the participatory decision making process. The San Development Programme 2005 involved all of the most marginalized people, including their Traditional Authorities. The San Development Programme was recently extended to include the community of Ovahimba in the Kuene Region. The Government of Namibia had taken measures to facilitate the establishment of non governmental organizations with the Namibia Civic Organisations Partnership Policy in December 2005. The goal of the policy was for the Government in consultation with civil society to create a "Working Partnership", a partnership that worked for the entire country, its citizens and their civic organizations and for the Government.
A concern of the Committee was the Traditional Authorities Act and if it included all indigenous groups including the San and Damara communities. The delegation said that the Government recognized 42 Traditional Authorities with the enactment of the Traditional Authorities Act, Act 25 of 2000, which included all indigenous groups, including the San and Damara ethnic groups. Five Damara ethnic groups have been recognized with two still pending recognition, but they were in the process of recognition before the courts. In addition three of the San ethnic groups had been recognized with two remaining to be recognized. On land acquisition for resettlement purposes, it was noted that the Government had established the Ministry of Lands and Resettlement. Since its inception the Ministry dealt with land redistribution. Land redistribution was addressed in regard to previous distribution requirements that were done so through different modes and beneficiaries. Currently there were new policies and directives that gave guidance on how land should be distributed, namely through the Agricultural Land Reform Act, National Land Policy, Resettlement Policy and Communal Land Reform Act. Targeted groups for the land resettlement programme were San communities, ex soldiers, returnees, displaces persons, people with disabilities and people from overcrowded communal areas.
In response to concerns on the dispossession of indigenous groups from their traditional lands, the delegation said that most of Namibia's protected areas were proclaimed before Namibia's Independence in 1990 and had been maintained as an island separated from surrounding people, their land uses and local economies. In 1996, the Ministry of Environment and Tourism introduced legislation that gave conditional use of rights over wildlife to communities in communal areas that formed a management unit called a conservancy. Moreover, no indigenous groups had ever been dispossessed of their traditional land in connection with the establishment of game reserves, game parks and national parks.
The delegation said that the issue of marginalized communities' enjoyment of economic, social and cultural rights had been addressed through programmes which had been implemented. These communities had been provided with educational services closer to their homes and satellite schools were also established in the Tsumkwe area to accommodate the San speaking Namibians for example. Instruction for the first three years of education was in Ju/hoasi, the local language, with English as a subject. Following this English became the medium of instruction with their mother tongue as a subject throughout their schooling. Further, mobile schools were also introduced for the Ovahimba community which ensured that schools moved with the community as they were nomadic in search of better grazing space for their animals.
With regard to Committee concerns on equal representation in the national Government, the delegation said that the Namibian Constitution gave effect to regional and local authorities' boundaries to be geographically delineated without any reference to race, colour and ethnic origin of the inhabitants of the areas. Thus, it ensured the integration of ethnic groups which were previously segregated by the apartheid regime. Members of the Regional Council and local authorities were democratically elected from these regions and local authorities. Through this arrangement, each individual who qualified had the right to become a member of a regional council or Local Authority regardless of his/her race, colour or ethnic origin. Further, article 10 of the Constitution prevented any form of discrimination on the grounds of sex, race, colour, ethnic origin, creed or social or economic status, while article 17 guaranteed the right of every citizen to be elected to public office.
With regard to the strengthening of the mandate and financial resources of the Ombudsman's Office, the delegation said that there were two regional offices; one in the south and the other in the north of the country. In 2007 the Cabinet approved the enlargement of the staff component with the addition of three investigators and one administrative officer. The Government intended to establish more regional offices in other regions of the country. The 2008-2009 budget of the Ombudsman's Office had been increased by 28.7 per cent and was scheduled to increase further by 3.55 per cent in the 2009-2010 budget.
On measures taken to raise awareness of racial discrimination due to low numbers of complaints received to date, the delegation said that the Ombudsman‘s Office had been conducting public hearings throughout the country in order to establish the true state of affairs in Namibia as it related to racism and racial discrimination. This also gave citizens who may not have reported an incident for whatever reason an incentive to do so. The second purpose of the hearings was to raise awareness of racism and racial discrimination. The hearings were scheduled to begin on 24 July 2008.
Oral Questions Raised by the Rapporteur and Experts
KOKOU MAWUENA IKA KANA EWOMSAN, the Committee Expert serving as country Rapporteur for the report of Namibia, said that Namibia was a large country in southern Africa, with a population of less than 2 million and where half were of a particular linguistic group, with a total of 11 indigenous languages. Sixty-five per cent of the population lived in rural areas and made up the main population living in extreme poverty, and 35 per cent lived in urban areas. The Constitution adopted in 1990 set up a two chamber system with a General Assembly and a National Council. The last elections of the President were found to be democratic; however, the political parties had an ethnic basis. The Government had been accused of giving too much assistance to the majority group and the minority groups accused the Government of being unfavourable to their groups. He asked what the conditions were for the establishment of a political party.
The Committee noted with satisfaction that the Namibian Constitution contained acts which gave effect to the provisions of the Convention before the law, the Rapporteur said. Also noted were the rights granted to all migrants and their families. Under article 14 the Committee requested that the State make a declaration on racial discrimination. There was a need for the State to train police and military forces. He noted that the State party had taken social and economic measures for the benefit of vulnerable communities which were envisaged throughout the report. In particular, measures were needed for better access to land, food and education.
Mr. Ewomsan noted that the Legal Assistance Office reported that the Government had not been successful in the redistribution of land, specifically to the San people. These people were seen as the main victims of land appropriation. The San suffered from high rates of AIDS. They were the poorest people and had also been victims, in particular women, of rape. The San domestic workers received very low wages and in some cases worked for food rations or alcohol. This illustrated the unfavourable situation of these people. Further, San children did not receive the same rights attributed to children of other communities with regard to education access. They were also susceptible to prostitution and sexual exploitation. On the problem of identification, many children did not have identification documents with birth dates or citizenship; he asked the delegation what measures was the State taking to address this issue.
On employment. Mr. Ewomsan said there were discriminatory practices against the black population, specifically evident with the case in May 1998 where a racist white employer dismissed employees because they asked for uniforms, and the employer said that God had given them their uniforms. What training programmes ensured that such cases were not repeated? On the lack of minimum wages in the country, it was of concern with specific regard to the agriculture workers who were being exploited. The delegation was asked what the State was doing to protect the rights of the black population in this regard.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, how the Government ensured that marginalized people got back the lands they lost; what affirmative action measures were taken with regard to the San bushman community; why there were discrepancies in Government support between the San and the Ovahimba people; why after 20 years of independence was land reform so minuscule and perhaps the concept of willing-buyer and willing-seller should be reviewed; was there discrimination in Namibia and if so who was being discriminated and what actions were being taken to address such cases; and what was the methodology adopted in the census surveys?
On the San Development Programme, Experts viewed it as a top-down programme where the Government seemed to have tried to desensitize the people in the country of the plight of the Sani, and it was not clear how the San people were consulted in the creation of the programme or if it was imposed on them? Was there any pressure from those working on the programme to change the lifestyle of the Sani with the intent to take over the land in which the Sani currently resided? On refugees, the delegation noted a concerted effort on the issue. However, since Namibia was so concerned with the rights of refugees, why had it not signed the OAU Convention on Refugees 1969?
A number of Committee Experts noted that traditionally the San bushman felt alienated in Namibia and some non governmental organizations had said that the Government ran programmes in a top-down approach which was cause for concern. The information provided to the Committee from various sources continued to note cases of discrimination towards the San bushman people. The San bushman people were victims of the expropriation of land, extreme poverty, the AIDS/HIV epidemic and under representation of that community in Government structures. Further a number of non governmental organizations had noted that the majority ethnic group of the Ovahimba had received greater funding and incentives from the Government than the San people.
Response by Delegation to Oral Questions
Responding to oral questions raised, the delegation said, with regard to the International Convention on the Protection of All Migrant Workers and Members of Their Families and the right to freedom of political representation, there was not enough information to provide full answers and therefore the delegation would provide the Committee with written answers at a later time. On the concerns raised with regard for the need to increase efforts and measures taken on the training in human rights for law enforcement officers, it was noted that there were specific training programmes ongoing. Training for judges of higher courts and the magistrates had been underway. It was further noted that the magistrates had dealt with the bulk of cases on racial discrimination and Namibia welcomed any assistance from the Committee and other United Nations Agencies furthering these efforts.
On the San people and the general concern of the Committee that they were being marginalized, the delegation noted that given the historical process Namibia had gone through, programmes and structures were implemented to progress the state of the San people. On the concerns with regard to ending the cycle of poverty among the San people, it was noted that there was a need for an impact assessment to know what the rate of success was for the efforts already made, and that Namibia would amend its strategies where necessary once accurate data was received. On minimum labour wages, the Labour Act 2007 would be in effect in August 2008 which gave light to specific rights for labour workers such as farmers and others in the community who were previously exploited.
With regard to customary law and the extent of its application to national law, the delegation said that customary law was applicable to the extent that those laws were not in violation of the Constitution. On the Committee's concern with regard to the 15 people arrested and subjected to torture, the delegation noted the issue with great priority and importance and said that they had not been aware of such a case, and would follow up once details were available. With regard to concerns on registration numbers of refugees and asylum seekers, it was noted that all refugees were kept in camps and managed through the camps in which they resided, however, there were refugees who were integrated in society through engagement in employment activities as well as the refugees who sought studies, and as such were not regulated through the camps.
On the Committee's concern with regard to ancestral land claims., the delegation said that the Constitution did not allow for ancestral land claims, which had come about in the Land Conference 1991, where papers submitted by academic experts and others throughout the country were assessed and consensus was achieved that ancestral land claims could not be made. On the excessive time which had spanned for land redistribution, it was said that Namibia was aware that the process was slow and that very few people had received lands to date. However, there had been court challenges to consider changing the current approaches which had resulted in an audit 2003-2005. The audit explored, amongst other things, the legislative framework, delivery rate and land demand and hunger, where in conclusion recommendations were adopted by the cabinet in 2005 which had been translated into active programmes to be implemented. Further, challenges remained between the land, hunger and the system in which the people were operating and that needed to be considered ongoing.
On the question of expropriations, the delegation said that article 16 of the Constitution stated that expropriations could be done as long as compensation was provided. Where the Government introduced development projects in which communities were effected the Government had paid compensation to these communities for improvement purposes only. With regard to the willing-buyer and willing-seller programme it was noted that progress was slow, however, there was a debate ongoing throughout the country and therefore potential changes were in the pipeline which were not yet identified as those debates had not yet concluded.
With regard to concerns and questions raised by the Committee on the disposition of land after independence with regard to the San people or any people in Namibia, the delegation said the Government was dealing with the aftermath of the apartheid and was trying to allocate land which could be used for farming. Some challenges remained. The Land Reform programme was made up of two components, one was the acquisition of farming land that covered 12,000 farming units, which were owned by 4,000 families or individuals who were predominantly white. The aim of the Government was to redistribute these lands to the groups in greater need with the aim for these people to become self sustainable through the production of their own food and to integrate into the economy, and the other was to secure rights for the peoples living in communal areas.
Further the delegation said that the Ministry of Lands and Resettlement was set-up to oversee an expeditious land reform programme. In 2003 a permanent technical team was established to review the existing policy, framework, and institutional and environmental sustainability including other cross cutting issues. Out of the issues identified, a strategy plan was devised by the Government called the Vision 2030, which envisaged making Namibia a developed and industrialized nation. The land reform programme was linked to a number of plans and goals already set forth by the Government in a number of other social and economic development programmes. The redistribution of land in the commercial areas was targeted for people who had no land, income or livestock. Thus the main targeted groups were members of the San communities, former soldiers, displaced persons, people with disabilities and people coming from overcrowded areas.
With regard to the San Development Programme, the delegation said that the Government of the Republic of Namibia was not living in denial. It was true that the San people were living in extreme poverty and the delegation assured the Committee that the Government acknowledged this fact. Access to schools and education was not existent. Resettlement and education projects were underway in order to advance the state of living conditions for the San people. Currently the Government had launched a campaign on the need for the people of the country to register. Field teams, by including doctors and other specialists were set-up to combat this issue. Further it was stated that the Namibian Government would not sleep while injustices continued. Instruments and programmes were currently in place for all Namibians, including the most marginalized people, specifically women to be represented politically. The San people were excluded from the employment sector, and therefore the Government was focused on educating San people to ensure that there were trained to be integrated into the economy. Cultural rights were protected under the Constitution, and the Government aimed development programmes to distribute wealth and resources without hindering culture.
With regard to the training of the police force, it was noted that in Namibia the Racial Discrimination Prohibition Act 1991 criminalized acts of racial discrimination and prohibited propagation of racial discrimination and the practice of apartheid, and it was noted that if the rights of an individual were covered under such legislation, the individual was free to evoke the provisions of the International Convention on the Elimination of All Forms of Discrimination and other international human rights instruments before the courts , as Namibia had a monist State system. As such it was noted that despite the lack of training programmes there were a number of protections granted to individuals. However, it was also noted that due to such provisions it was important for law enforcement officials to be trained so as to ensure that they were knowledgeable in the field of human rights and the protections granted through international instruments and its applicability in the country.
Further Oral Questions Posed by Experts
In a second round of questions and concerns raised by Committee Experts, an Expert noted that Table 1 in the written report stated the breakdown of people living in Namibia, and asked were there any stateless people living in Namibia, and if so what was being done for them? A source of concern for an Expert was the delegation's mention in the written report of the Council of Traditional Tribal Chiefs and he asked how it was made up and who could participate in the Council? Furthermore, with regard to the legislation on the abolition of the possibility of prosecuting any crimes related to hatred vis-à-vis any racial or ethnic groups, he asked if the delegation could provide comments and further details on that provision as it was cause for great concern.
Replies by the Delegation
Responding to those questions and others, the delegation said with regard to the clarifications on table 1, these indicated the specific population present in Namibia, and where it stated "all other countries" it referred to non-African countries, and where it stated "no state", represented the people who took the survey and did not indicate citizenship, which totaled 381 people. It was noted that a person could acquire citizenship through registration, naturalization or through marriage in Namibia. Citizenship would only be removed in cases where the person acquired a different citizenship, and the Government was committed to ensuring that persons were not left in a "stateless" status.
In response to an Expert's concern with regard to current legislation on the abolition of the possibility of prosecuting any crimes related to hatred vis-à-vis any racial or ethnic groups, the delegation said that they noted this concern and had intended to include a recommendation for the review and reconsideration of the 1998 amendment to the abolition act. With regard to the questions raised by a Committee Expert on the make-up and participatory requirements of the Council of Traditional Tribal Chiefs, the delegation said that Namibia had recognized 42 Traditional Authorities, and membership in the Council depended on the recognition status; further details regarding the make-up of the Council of Traditional Tribal Chiefs would be provided at a later time in a written response.
Preliminary Concluding Observations
KOKOU MAWUENA IKA KANA EWOMSAN, the Committee Expert serving as country Rapporteur for the report of Namibia, thanked the Namibian delegation for the rich and fruitful dialogue and appreciated the sincerity and frankness in which they dealt with the various difficulties that presented challenges for the country. A number of problems had been raised by the Committee that remained to be addressed. It was the will of Namibia that was necessary to combat the challenges posed, and the Committee wished that there would be regularity in receiving the reports in order to better combat issues of racism and racial discrimination.
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