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HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF NAMIBIA
15 July 2004
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Human Rights Committee
15 July 2004
The Human Rights Committee has considered the initial report of Namibia on how that State party implements the provisions of the International Covenant on Civil and Political Rights.
Introducing the report, Utoni Nujoma, Government Coordinator of Human Rights, said Namibia’s membership to the Covenant served two purposes: it gave the country the opportunity to contribute to the international community’s efforts to institutionalize a culture of respect for human rights internationally. But also the reporting obligation provided a “yardstick” against which Namibia could measure its own efforts to institutionalize a culture of respect for human rights at home. Since its independence in 1991, Namibia had been holding democratic elections demonstrating the State party’s commitment to good governance.
In preliminary remarks, Committee Chairperson Abdelfattah Amor expressed satisfaction that the death penalty in Namibia had been abolished and that the State party had been engaging in a dialogue with civil society, in particular with non-governmental organizations. Concerning domestic and police violence, the Chairman asked whether Namibia had done enough to contain these problems. In this context, many efforts needed to be made, particularly for battered women and children; action must also be taken at the education level, Mr. Amor said.
Other Committee Experts raised questions on subjects pertaining, among other things, to women and children’s rights, domestic violence, pre-trial detention and legal aid, cases of disappearances, anti-discrimination measures, homosexuality and HIV/AIDS.
The Committee will issue its formal, written concluding observations and recommendations on the report of Namibia towards the end of its session which will conclude on 30 July.
Also representing Namibia was a representative of the Ministry of Justice and the Permanent Representative of Namibia to the United Nations Office at Geneva.
Namibia is among the 152 States parties to the International Covenant on Civil and Political Rights and as such it is obligated to submit reports on its performance aimed at implementing the provisions of the treaty. It is also one of the 104 States parties to the Optional Protocol to the Covenant.
The Committee will reconvene at 10 a.m. on Friday, 16 July to begin its consideration of the initial report of Liechtenstein (CCPR/C/LIE/2003/1).
Report of Namibia
The initial report of Namibia, contained in document CCPR/C/NAM/2003/1, indicates that Namibia had a total population of 1.4 million persons in 1991 and the population has been growing rapidly ever since. Of this number, some 49,000 are foreign nationals (or 3.5 per cent), of which 87.4 per cent are from other African countries; the literacy level is 90 per cent among urban residents but 69 per cent among rural residents. The country has made progress in the areas of health, education, poverty eradication, gender equity, welfare of children, governance, the population and environment management, the report states. However, nutritional levels fall well below that of a middle-income country and the country is faced with an unprecedented threat of HIV/AIDS.
Since independence, fundamental human rights and freedoms of the individual have been placed at centre stage in the legal system and are enshrined in the Bill of Rights of the Constitution. In this connection, persons alleging human rights violations can seek redress in the courts of law or in quasi-judicial bodies, for example the Office of the Ombudsman. An indefinite detention is totally banned by the Constitution and an arrested person must be brought to court within 48 hours. However, the Constitution excludes the application of the 48-hour rule to illegal immigrants held in custody under the Immigration Control Act of 1993. The death penalty has been totally abolished in Namibia, however there has been a serious debate going on in the country regarding the question of the re-introduction of the death penalty.
With regard to the implementation of international human rights instruments, Namibia has ratified all the major international human rights instruments. The Office of the Ombudsman plays a significant role in the protection and promotion of human rights and fundamental freedoms. The Ministry of Justice has the final responsibility for the promotion and protection of human rights on behalf of the Government. There is no distinction between a citizen of Namibia and a non-citizen as far as access to remedies in the courts is concerned. In terms of the law no person may be expelled from Namibia unless such expulsion or removal has been authorized by an Immigration Tribunal. Moreover, all citizens in Namibia have the right to participate freely in all government structures directly or through their freely elected representatives at the national, regional and local government levels, the report states.
Presentation of Report
UTONI NUJOMA, Government Coordinator of Human Rights of Namibia, said Namibia had regained independence from the de facto colonial administrator, South Africa, some 14 years ago, with the assistance of the United Nations and the international community. Namibia’s membership to the International Covenant on Civil and Political Rights served two purposes: it gave the opportunity to contribute to the international community’s efforts to institutionalize a culture of respect for human rights internationally. But also the reporting obligation provided a “yardstick” against which Namibia could measure its own efforts to institutionalize a culture of respect for human rights at home. Despite its limited financial and technical resources, Namibia would endeavour to fulfil its obligations under the Covenant.
Mr. Nujoma mentioned that local government elections to elect local authority councillors were conducted successfully, freely and fairly last May. Seven political parties and ten civic organizations took part in the election. Moreover, presidential and parliamentary elections were scheduled for November this year. Since independence, Namibia had been holding democratic elections demonstrating the State party’s commitment to good governance.
Discussion
The delegation responded to written questions prepared beforehand by the Committee. In response to a question on the implementation of the International Covenant on Civil and Political Rights in domestic legislation, the delegation said that among other measures, the Child Justice Bill had gone through the initial legislative process at the Cabinet level and was scheduled to be tabled before Parliament. Namibia at present had no plans to establish a national human rights commission.
Namibia had some eight main indigenous languages, two languages imported from Europe, namely English and German, and the language of the colonial settlers. The framers of the Constitution put an end to apartheid Batustanism under which self-governing regions were created on ethnic and tribal lines as a method whereby racist South Africa ruled Namibia according to the apartheid system of government. In the apartheid Bantustan system of government, civil servants were made to work only in their home areas; this was no longer the case as Namibia was striving to build a country of ‘one nation, one people’, the delegation said.
On a related question posed orally by a Committee Member, the delegation said the Judicial Service Commission was composed of private legal practitioners, including the Prosecutor-General, the Chief Justice of Namibia and the Attorney General. The Commission made recommendations to the President on the election of judges. Furthermore, the task of the Inter-Ministerial Technical Committee was to draft reports and above all to promote and protect human rights in collaboration with the University of Namibia where the human rights documentation centre was located. Through the assistance of donor countries there was training for police, judges and all law enforcement officials on human rights.
Concerning the Office of the Ombudsman, the delegation said that the view of the Government was that the role of the Ombudsman, coupled with the supervisory function of the High Court and Supreme Court in the protection and promotion of human rights, was adequate. For example, in 2003 the Ombudsman handled 35 alleged human rights violation cases; in 15 cases the Ombudsman found that allegations of violations of human rights were not well founded and in 14 cases, the Ombudsman either made appropriate recommendations to the institutions complained against or referred the complaints to private legal practitioners with instructions to handle the cases at the expense of the Ombudsman. Responding to an oral question, the delegation said the Ombudsman was appointed by the Judicial Service Commission which recommended the appointment to the President.
Concerning gender equality, the delegation said the Namibia Gender Policy was adopted in 1997. Its main objective was to address gender inequalities in the ten critical areas of concern, among them, gender poverty and rural development, balance in education and training, reproductive health, and violence against women and children. The number of women in decision-making positions was still very low. However there was slight improvement, the delegation said. Women occupied 24 per cent of senior management level in the public service and 44 per cent in local councillors, for example. Moreover, the Ministry of Justice completed the first draft of the Interstate Inheritance and Succession Bill in May this year.
Furthermore, the Law Reform and Development Commission was currently researching the suitability or otherwise of passing a law requiring the registration of marriages under customary law. The Commission expected to submit its report on Customary Law Marriages to the Minister of Justice by the end of 2004. In response to a related question asked by a Committee Expert, the delegation indicated that the Interstate Succession Bill was now under consideration. The Bill aimed to document all cases of customary law marriages in order to bring them on par with common law marriages. This would thereby enable the spouses to be granted social benefits in the event that the other spouse died. Furthermore, the recently enacted Married Persons Equality Act aimed to bring equality between the two spouses.
On the issues of arrest, detention and legal assistance, the delegation said no matter the nature of the alleged offence every accused person was entitled to apply for bail. Turning specifically to the question posed concerning the Caprivi treason case, the delegation said the case was brought forward in November 2000 for preliminary plea proceedings. At that time, some of the accused persons were not in a position to plead because their legal representatives were not available and the matter was postponed until January 2001 at which time the accused launched an appeal to the High Court, which was charged with handling all cases of treason, for relief. In the end the Court adjourned the
proceedings and the Government affirmed that no delay was a result of their action. As per the Government’s Legal Aid Directorate, legal representation to the applicants for the defence of the charges brought against them was provided until such time as legal representation was self-provided. There had been delays but they were attributed to the intransigence and uncooperative attitude of the accused persons, the delegation said. In any case, if after hearing arguments from counsel on both sides, the Court decided to adjourn proceedings, it was not the place of the Government to interfere with the judiciary and tell it what to do.
Asked what measures had been taken to ensure compliance with Namibia’s Constitution, which stipulated that all persons in custody should be brought before the nearest magistrate or judicial officer within 48 hours after arrest, the delegation noted that initially there were problems with the 48-hour rule. Officials from the Ministries of Justice and Home Affairs, the Namibian Police and the Office of the Prosecutor General held meetings to ensure that there were no breaches of the 48-hour rule. On its part, the Ministry of Justice established many resident magistrates’ courts throughout the country with the aim to ensure adherence to the 48-hour rule. Moreover, the 48-hour rule had been difficult to apply given the large size of Namibia. As a result, an enormous toll was taken on the police when they arrested a subject and had to bring them to the nearest station within a limited time. The Ministry of Justice had increased its budget to support this process, the delegation added.
Concerning detention centres, the delegation said there was both internal and external inspection of detention centres and investigation of complaints where applicable. The internal inspections were conducted by the Prisons and Correctional Service and the external inspections were conducted by magistrates who were part of the independent judiciary. Moreover, a magistrate had the power to order an investigation of a complaint and a prosecution thereof. In response to a question posed by a Committee Member on torture of a detained person, the delegation said there were cases where compensation was awarded for damages to aggrieved persons. The Walima case, for example, involved a victim of torture which was investigated by the police who found that torture did take place and in turn compensation was awarded to the victim.
Concerning the alleged cases of disappearances during the border conflict between Namibia and Angola, the delegation noted that there had been investigations by both the Government and non-governmental organizations, namely the National Society for Human Rights which had documented the names of those who were alleged to have disappeared. At present, there were no longer tensions along the border and the Government of Namibia had contacts with Angolan Government officials and UNITA representatives to continue with peace and reconciliation efforts. The cases of the disappearances had long been solved. The delegation mentioned that the United States Embassy in Windhoek had requested the Government to provide information on these disappearances and the Government had done so. Moreover, the Courts had awarded compensation to the families of those who were killed or who were deemed to have gone missing. Peace had returned to Angola and there was now greater cooperation between that country and Namibia as a whole, the delegation added.
The delegation responded to a question to say any woman who wanted to own property could apply to do so. Furthermore, the Government was using all the means available to ensure this in order to develop its measures to combat poverty. In response to another question, the delegation said pregnant girls were never expelled from school and were afforded the opportunity to return to school after giving birth.
On questions regarding domestic violence, the delegation said domestic violence was a statutory crime in Namibia under the Combating Domestic Violence Act which was passed in June 2003. Over 240 related complaints had been received by the Police and 62 were prosecuted; no victims were compensated.
Asked what measures were taken by Namibia to prevent child abuse, the delegation stated that Namibia had adopted different measures to reduce and eliminate this immoral practice. The Government in collaboration with stakeholders had passed two laws which were aimed at reducing violence against women and children – the Combating of Rape Act of 2000 and the Domestic Violence Act of 2003.
On the Affirmative Action Plan, the delegation said Parliament had passed legislation to prohibit social discrimination and the ideology of Apartheid from which the majority of the Namibian people had suffered for decades. Positive discrimination was allowed in order to address the imbalances inherited from past discriminatory laws. Moreover, specific measures had been taken to unite all people in Namibia who had suffered from Apartheid. Today, all people in Namibia were equal before the law and supported this policy of national reconciliation with a view to create peace, unity and common loyalty towards the Namibian State.
On a question dealing with homosexuality, the delegation stated that the Government did not intend to take any special measures now or in the future to protect specifically homosexuals any more than it intended to take special measures to protect heterosexuals. Homosexuality in Namibia was not prohibited, however most Namibians were Christian and many of them found homosexual behaviour offensive. No legislation existed which prevented acts of homosexuality. The delegation added that there were no cases of discrimination against homosexuals in the State.
On a question pertaining to refugees, the delegation stated that Namibia had a statute that dealt with refugees in the form of the Namibia Refugees Act of 1999 which entered into force in 2000.
In terms of the Namibian Constitution, prosecutions in Namibia were the task of the Prosecutor General who was not a political appointee but was appointed by the President on the recommendation of the Judicial Service Commission. The Prosecutor General was completely independent in both law and practice.
Returning to the issue of pre-trial detention, the delegation said that as per the Namibian Constitution no persons can be subjected to arbitrary arrest or detention and no persons can be detained in custody without being informed in their mother language of the charges for which they were being arrested. Moreover, the right to be defended by a lawyer of one’s choice was a constitutional right, and the presiding police officer at the time of arrest must inform an undefended person of this right. The decision as to whether a confession qualified for admission was one for the judicial officer alone and if the court was left in doubt as to the voluntary nature of the confession it must be rejected as the State had failed to discharge the onus resting upon it.
On the question concerning the treatment of Namibian citizens forcibly returned from Botswana, the delegation said the information they had came from the Ministry of Home Affairs which said that in the aftermath of the armed attack on Katima Mullilo which left people dead and property destroyed, a number of Namibians left for Botswana. Over 1,000 of them returned to Namibia in 2002 and many others returned in 2003 through arrangements initiated and implemented jointly by the Governments of Namibia and Botswana and the United Nations High Commissioner for Refugees.
The Committee asked the delegation what the current status of the draft law on children was, to which the delegation said the Child Status Bill dealt primarily with the position of children born outside marriage and one of its major features was the removal of discrimination against so-called “illegitimate children”. The Bill attempted to shift the emphasis away from the competing rights of the child’s mother and father, towards an emphasis on the rights of the child in terms of the Constitution and the United Nations Convention on the Rights of the Child. The Bill had been tabled in Parliament and the Cabinet Committee on Legislation was now consulting the regions on the Bill after receiving input from the general public.
Asked whether fluency in English was required for employment in public service given that it was the official language of Namibia, the delegation indicated that any person wishing to enter into public service had to know English to the extent required to enable him/her to perform his/her duties as a Namibian public servant. Although English was the official language, schools at all levels were encouraged to teach other languages.
The Committee asked for information on how persons belonging to different ethnic, religious and linguistic minorities enjoyed their rights together with other members of their community. The delegation said every person was free to choose and practice their religion, including animism, without interference or without suffering any prejudice as to the enjoyment of human rights. Those whose language was Afrikaans were not a linguistic minority by any standard and they exercised their human rights to use their language and promote their culture. Members of the San ethnic group, for example, because of their way of life, were greatly disadvantaged before Namibia’s independence. A great deal had been done since independence to promote their welfare and to ensure that they were not prejudiced against.
The Committee asked what steps were being taken to give effect to the proposals made by the Law Reform and Development Commission of the Ministry of Justice to amend laws that went against the spirit of Namibia’s Constitution. The delegation said the Commission did address needs to change laws if it became clear that it was not already getting attention elsewhere. Several Acts of Parliament were prompted by reports from the Commission, among them the Marriage Persons Equality Act of 1996, the Combating of Rape Act of 2000 and the Combating of Domestic Violence Act of 2003.
In response to a written question, the delegation said it relied on the Human Rights and Documentation Centre for human rights training and education. Moreover, the Ministry of Justice had been conducting human rights training programmes in conjunction with the Centre. But there were only a few programmes due to the lack of funds.
Asylum seekers came mostly from Angola, the Democratic Republic of the Congo and Zambia during the prolonged wars in the Democratic Republic of the Congo and Angola. There were also refugees for the Great Lakes area. There was a project now between the Government and the High Commissioner for Refugees to repatriate most of these refugees.
Concerning HIV/AIDS, the delegation said the Namibian Government had been very active in tackling this problem in terms of prevention, treatment and care of AIDS orphans. The President had been instrumental in championing the fight against HIV/AIDS and his leadership had helped to focus attention and make it clear that the Government attached great importance to this cause, therefore making it a Government priority. The Government had set up a programme involving all stakeholders to spearhead the fight against the disease. The campaign included awareness raising, the provision of access to anti-retroviral drugs free of charge and a dissemination campaign with particular emphasis on the youth and rural communities including urban centres. In response to a follow-up question, the delegation said Namibia had been cooperating with the World Health Organization on this issue.
In response to another question, the delegation said the Electoral Commission was an independent institution established by the Electoral Act which had the authority to control all elections in-country. The Commission consisted of a judge from the High Court to serve as the chairperson and four other members who were appointed by the President based upon the recommendation by the Parliament. Moreover, the President may appoint acting judges from the Supreme Court to fill vacancies.
Concerning a question on torture, the delegation said Namibia was a signatory to the Convention against Torture. Moreover, the Namibian Constitution strictly prohibited all acts of torture or cruel, inhuman and degrading treatment.
On a question raised by a Committee Expert, the delegation indicated that shelters had been established for victims of domestic violence which worked in conjunction with the Women and Children Protection Unit of the Namibian Police.
Preliminary Observations
ABDELFATTAH AMOR, Chairman of the Committee, said in preliminary remarks that the good will demonstrated by the Namibian delegation had been greatly appreciated by the Committee. Among other things, the Chairman expressed satisfaction that the death penalty in Namibia had been abolished and that the State party had been engaging in dialogue with civil society, in particular with non-governmental organizations.
The Chairman expressed concern that there had been limited reference to the facts on the ground in the report, despite it being well researched, and said more information on Namibia’s legal standards and how they were applied was needed. The Committee was unable to provide an accurate assessment on how the Covenant was being applied in Namibia. Concerning legal aspects, Mr. Amor said a great deal remained to be done in terms of positive written law which was still limited. Very often in the name of customary law offences could be committed against human rights, the Chairman said. Once a State endorsed international obligations, its national legislation must be brought in line with those commitments. Concerning domestic and police violence, the Chairman asked whether Namibia had done enough to contain this problem. In this context, many efforts needed to be made, particularly for battered women and children; action must also be taken at the education level.
In closing, the Chairman called on the Government of Namibia to follow up on the Committee’s observations and said it was up to the State to provide for the procedures likely to lead to a satisfactory implementation of the Committee’s observations.
* *** *
15 July 2004
The Human Rights Committee has considered the initial report of Namibia on how that State party implements the provisions of the International Covenant on Civil and Political Rights.
Introducing the report, Utoni Nujoma, Government Coordinator of Human Rights, said Namibia’s membership to the Covenant served two purposes: it gave the country the opportunity to contribute to the international community’s efforts to institutionalize a culture of respect for human rights internationally. But also the reporting obligation provided a “yardstick” against which Namibia could measure its own efforts to institutionalize a culture of respect for human rights at home. Since its independence in 1991, Namibia had been holding democratic elections demonstrating the State party’s commitment to good governance.
In preliminary remarks, Committee Chairperson Abdelfattah Amor expressed satisfaction that the death penalty in Namibia had been abolished and that the State party had been engaging in a dialogue with civil society, in particular with non-governmental organizations. Concerning domestic and police violence, the Chairman asked whether Namibia had done enough to contain these problems. In this context, many efforts needed to be made, particularly for battered women and children; action must also be taken at the education level, Mr. Amor said.
Other Committee Experts raised questions on subjects pertaining, among other things, to women and children’s rights, domestic violence, pre-trial detention and legal aid, cases of disappearances, anti-discrimination measures, homosexuality and HIV/AIDS.
The Committee will issue its formal, written concluding observations and recommendations on the report of Namibia towards the end of its session which will conclude on 30 July.
Also representing Namibia was a representative of the Ministry of Justice and the Permanent Representative of Namibia to the United Nations Office at Geneva.
Namibia is among the 152 States parties to the International Covenant on Civil and Political Rights and as such it is obligated to submit reports on its performance aimed at implementing the provisions of the treaty. It is also one of the 104 States parties to the Optional Protocol to the Covenant.
The Committee will reconvene at 10 a.m. on Friday, 16 July to begin its consideration of the initial report of Liechtenstein (CCPR/C/LIE/2003/1).
Report of Namibia
The initial report of Namibia, contained in document CCPR/C/NAM/2003/1, indicates that Namibia had a total population of 1.4 million persons in 1991 and the population has been growing rapidly ever since. Of this number, some 49,000 are foreign nationals (or 3.5 per cent), of which 87.4 per cent are from other African countries; the literacy level is 90 per cent among urban residents but 69 per cent among rural residents. The country has made progress in the areas of health, education, poverty eradication, gender equity, welfare of children, governance, the population and environment management, the report states. However, nutritional levels fall well below that of a middle-income country and the country is faced with an unprecedented threat of HIV/AIDS.
Since independence, fundamental human rights and freedoms of the individual have been placed at centre stage in the legal system and are enshrined in the Bill of Rights of the Constitution. In this connection, persons alleging human rights violations can seek redress in the courts of law or in quasi-judicial bodies, for example the Office of the Ombudsman. An indefinite detention is totally banned by the Constitution and an arrested person must be brought to court within 48 hours. However, the Constitution excludes the application of the 48-hour rule to illegal immigrants held in custody under the Immigration Control Act of 1993. The death penalty has been totally abolished in Namibia, however there has been a serious debate going on in the country regarding the question of the re-introduction of the death penalty.
With regard to the implementation of international human rights instruments, Namibia has ratified all the major international human rights instruments. The Office of the Ombudsman plays a significant role in the protection and promotion of human rights and fundamental freedoms. The Ministry of Justice has the final responsibility for the promotion and protection of human rights on behalf of the Government. There is no distinction between a citizen of Namibia and a non-citizen as far as access to remedies in the courts is concerned. In terms of the law no person may be expelled from Namibia unless such expulsion or removal has been authorized by an Immigration Tribunal. Moreover, all citizens in Namibia have the right to participate freely in all government structures directly or through their freely elected representatives at the national, regional and local government levels, the report states.
Presentation of Report
UTONI NUJOMA, Government Coordinator of Human Rights of Namibia, said Namibia had regained independence from the de facto colonial administrator, South Africa, some 14 years ago, with the assistance of the United Nations and the international community. Namibia’s membership to the International Covenant on Civil and Political Rights served two purposes: it gave the opportunity to contribute to the international community’s efforts to institutionalize a culture of respect for human rights internationally. But also the reporting obligation provided a “yardstick” against which Namibia could measure its own efforts to institutionalize a culture of respect for human rights at home. Despite its limited financial and technical resources, Namibia would endeavour to fulfil its obligations under the Covenant.
Mr. Nujoma mentioned that local government elections to elect local authority councillors were conducted successfully, freely and fairly last May. Seven political parties and ten civic organizations took part in the election. Moreover, presidential and parliamentary elections were scheduled for November this year. Since independence, Namibia had been holding democratic elections demonstrating the State party’s commitment to good governance.
Discussion
The delegation responded to written questions prepared beforehand by the Committee. In response to a question on the implementation of the International Covenant on Civil and Political Rights in domestic legislation, the delegation said that among other measures, the Child Justice Bill had gone through the initial legislative process at the Cabinet level and was scheduled to be tabled before Parliament. Namibia at present had no plans to establish a national human rights commission.
Namibia had some eight main indigenous languages, two languages imported from Europe, namely English and German, and the language of the colonial settlers. The framers of the Constitution put an end to apartheid Batustanism under which self-governing regions were created on ethnic and tribal lines as a method whereby racist South Africa ruled Namibia according to the apartheid system of government. In the apartheid Bantustan system of government, civil servants were made to work only in their home areas; this was no longer the case as Namibia was striving to build a country of ‘one nation, one people’, the delegation said.
On a related question posed orally by a Committee Member, the delegation said the Judicial Service Commission was composed of private legal practitioners, including the Prosecutor-General, the Chief Justice of Namibia and the Attorney General. The Commission made recommendations to the President on the election of judges. Furthermore, the task of the Inter-Ministerial Technical Committee was to draft reports and above all to promote and protect human rights in collaboration with the University of Namibia where the human rights documentation centre was located. Through the assistance of donor countries there was training for police, judges and all law enforcement officials on human rights.
Concerning the Office of the Ombudsman, the delegation said that the view of the Government was that the role of the Ombudsman, coupled with the supervisory function of the High Court and Supreme Court in the protection and promotion of human rights, was adequate. For example, in 2003 the Ombudsman handled 35 alleged human rights violation cases; in 15 cases the Ombudsman found that allegations of violations of human rights were not well founded and in 14 cases, the Ombudsman either made appropriate recommendations to the institutions complained against or referred the complaints to private legal practitioners with instructions to handle the cases at the expense of the Ombudsman. Responding to an oral question, the delegation said the Ombudsman was appointed by the Judicial Service Commission which recommended the appointment to the President.
Concerning gender equality, the delegation said the Namibia Gender Policy was adopted in 1997. Its main objective was to address gender inequalities in the ten critical areas of concern, among them, gender poverty and rural development, balance in education and training, reproductive health, and violence against women and children. The number of women in decision-making positions was still very low. However there was slight improvement, the delegation said. Women occupied 24 per cent of senior management level in the public service and 44 per cent in local councillors, for example. Moreover, the Ministry of Justice completed the first draft of the Interstate Inheritance and Succession Bill in May this year.
Furthermore, the Law Reform and Development Commission was currently researching the suitability or otherwise of passing a law requiring the registration of marriages under customary law. The Commission expected to submit its report on Customary Law Marriages to the Minister of Justice by the end of 2004. In response to a related question asked by a Committee Expert, the delegation indicated that the Interstate Succession Bill was now under consideration. The Bill aimed to document all cases of customary law marriages in order to bring them on par with common law marriages. This would thereby enable the spouses to be granted social benefits in the event that the other spouse died. Furthermore, the recently enacted Married Persons Equality Act aimed to bring equality between the two spouses.
On the issues of arrest, detention and legal assistance, the delegation said no matter the nature of the alleged offence every accused person was entitled to apply for bail. Turning specifically to the question posed concerning the Caprivi treason case, the delegation said the case was brought forward in November 2000 for preliminary plea proceedings. At that time, some of the accused persons were not in a position to plead because their legal representatives were not available and the matter was postponed until January 2001 at which time the accused launched an appeal to the High Court, which was charged with handling all cases of treason, for relief. In the end the Court adjourned the
proceedings and the Government affirmed that no delay was a result of their action. As per the Government’s Legal Aid Directorate, legal representation to the applicants for the defence of the charges brought against them was provided until such time as legal representation was self-provided. There had been delays but they were attributed to the intransigence and uncooperative attitude of the accused persons, the delegation said. In any case, if after hearing arguments from counsel on both sides, the Court decided to adjourn proceedings, it was not the place of the Government to interfere with the judiciary and tell it what to do.
Asked what measures had been taken to ensure compliance with Namibia’s Constitution, which stipulated that all persons in custody should be brought before the nearest magistrate or judicial officer within 48 hours after arrest, the delegation noted that initially there were problems with the 48-hour rule. Officials from the Ministries of Justice and Home Affairs, the Namibian Police and the Office of the Prosecutor General held meetings to ensure that there were no breaches of the 48-hour rule. On its part, the Ministry of Justice established many resident magistrates’ courts throughout the country with the aim to ensure adherence to the 48-hour rule. Moreover, the 48-hour rule had been difficult to apply given the large size of Namibia. As a result, an enormous toll was taken on the police when they arrested a subject and had to bring them to the nearest station within a limited time. The Ministry of Justice had increased its budget to support this process, the delegation added.
Concerning detention centres, the delegation said there was both internal and external inspection of detention centres and investigation of complaints where applicable. The internal inspections were conducted by the Prisons and Correctional Service and the external inspections were conducted by magistrates who were part of the independent judiciary. Moreover, a magistrate had the power to order an investigation of a complaint and a prosecution thereof. In response to a question posed by a Committee Member on torture of a detained person, the delegation said there were cases where compensation was awarded for damages to aggrieved persons. The Walima case, for example, involved a victim of torture which was investigated by the police who found that torture did take place and in turn compensation was awarded to the victim.
Concerning the alleged cases of disappearances during the border conflict between Namibia and Angola, the delegation noted that there had been investigations by both the Government and non-governmental organizations, namely the National Society for Human Rights which had documented the names of those who were alleged to have disappeared. At present, there were no longer tensions along the border and the Government of Namibia had contacts with Angolan Government officials and UNITA representatives to continue with peace and reconciliation efforts. The cases of the disappearances had long been solved. The delegation mentioned that the United States Embassy in Windhoek had requested the Government to provide information on these disappearances and the Government had done so. Moreover, the Courts had awarded compensation to the families of those who were killed or who were deemed to have gone missing. Peace had returned to Angola and there was now greater cooperation between that country and Namibia as a whole, the delegation added.
The delegation responded to a question to say any woman who wanted to own property could apply to do so. Furthermore, the Government was using all the means available to ensure this in order to develop its measures to combat poverty. In response to another question, the delegation said pregnant girls were never expelled from school and were afforded the opportunity to return to school after giving birth.
On questions regarding domestic violence, the delegation said domestic violence was a statutory crime in Namibia under the Combating Domestic Violence Act which was passed in June 2003. Over 240 related complaints had been received by the Police and 62 were prosecuted; no victims were compensated.
Asked what measures were taken by Namibia to prevent child abuse, the delegation stated that Namibia had adopted different measures to reduce and eliminate this immoral practice. The Government in collaboration with stakeholders had passed two laws which were aimed at reducing violence against women and children – the Combating of Rape Act of 2000 and the Domestic Violence Act of 2003.
On the Affirmative Action Plan, the delegation said Parliament had passed legislation to prohibit social discrimination and the ideology of Apartheid from which the majority of the Namibian people had suffered for decades. Positive discrimination was allowed in order to address the imbalances inherited from past discriminatory laws. Moreover, specific measures had been taken to unite all people in Namibia who had suffered from Apartheid. Today, all people in Namibia were equal before the law and supported this policy of national reconciliation with a view to create peace, unity and common loyalty towards the Namibian State.
On a question dealing with homosexuality, the delegation stated that the Government did not intend to take any special measures now or in the future to protect specifically homosexuals any more than it intended to take special measures to protect heterosexuals. Homosexuality in Namibia was not prohibited, however most Namibians were Christian and many of them found homosexual behaviour offensive. No legislation existed which prevented acts of homosexuality. The delegation added that there were no cases of discrimination against homosexuals in the State.
On a question pertaining to refugees, the delegation stated that Namibia had a statute that dealt with refugees in the form of the Namibia Refugees Act of 1999 which entered into force in 2000.
In terms of the Namibian Constitution, prosecutions in Namibia were the task of the Prosecutor General who was not a political appointee but was appointed by the President on the recommendation of the Judicial Service Commission. The Prosecutor General was completely independent in both law and practice.
Returning to the issue of pre-trial detention, the delegation said that as per the Namibian Constitution no persons can be subjected to arbitrary arrest or detention and no persons can be detained in custody without being informed in their mother language of the charges for which they were being arrested. Moreover, the right to be defended by a lawyer of one’s choice was a constitutional right, and the presiding police officer at the time of arrest must inform an undefended person of this right. The decision as to whether a confession qualified for admission was one for the judicial officer alone and if the court was left in doubt as to the voluntary nature of the confession it must be rejected as the State had failed to discharge the onus resting upon it.
On the question concerning the treatment of Namibian citizens forcibly returned from Botswana, the delegation said the information they had came from the Ministry of Home Affairs which said that in the aftermath of the armed attack on Katima Mullilo which left people dead and property destroyed, a number of Namibians left for Botswana. Over 1,000 of them returned to Namibia in 2002 and many others returned in 2003 through arrangements initiated and implemented jointly by the Governments of Namibia and Botswana and the United Nations High Commissioner for Refugees.
The Committee asked the delegation what the current status of the draft law on children was, to which the delegation said the Child Status Bill dealt primarily with the position of children born outside marriage and one of its major features was the removal of discrimination against so-called “illegitimate children”. The Bill attempted to shift the emphasis away from the competing rights of the child’s mother and father, towards an emphasis on the rights of the child in terms of the Constitution and the United Nations Convention on the Rights of the Child. The Bill had been tabled in Parliament and the Cabinet Committee on Legislation was now consulting the regions on the Bill after receiving input from the general public.
Asked whether fluency in English was required for employment in public service given that it was the official language of Namibia, the delegation indicated that any person wishing to enter into public service had to know English to the extent required to enable him/her to perform his/her duties as a Namibian public servant. Although English was the official language, schools at all levels were encouraged to teach other languages.
The Committee asked for information on how persons belonging to different ethnic, religious and linguistic minorities enjoyed their rights together with other members of their community. The delegation said every person was free to choose and practice their religion, including animism, without interference or without suffering any prejudice as to the enjoyment of human rights. Those whose language was Afrikaans were not a linguistic minority by any standard and they exercised their human rights to use their language and promote their culture. Members of the San ethnic group, for example, because of their way of life, were greatly disadvantaged before Namibia’s independence. A great deal had been done since independence to promote their welfare and to ensure that they were not prejudiced against.
The Committee asked what steps were being taken to give effect to the proposals made by the Law Reform and Development Commission of the Ministry of Justice to amend laws that went against the spirit of Namibia’s Constitution. The delegation said the Commission did address needs to change laws if it became clear that it was not already getting attention elsewhere. Several Acts of Parliament were prompted by reports from the Commission, among them the Marriage Persons Equality Act of 1996, the Combating of Rape Act of 2000 and the Combating of Domestic Violence Act of 2003.
In response to a written question, the delegation said it relied on the Human Rights and Documentation Centre for human rights training and education. Moreover, the Ministry of Justice had been conducting human rights training programmes in conjunction with the Centre. But there were only a few programmes due to the lack of funds.
Asylum seekers came mostly from Angola, the Democratic Republic of the Congo and Zambia during the prolonged wars in the Democratic Republic of the Congo and Angola. There were also refugees for the Great Lakes area. There was a project now between the Government and the High Commissioner for Refugees to repatriate most of these refugees.
Concerning HIV/AIDS, the delegation said the Namibian Government had been very active in tackling this problem in terms of prevention, treatment and care of AIDS orphans. The President had been instrumental in championing the fight against HIV/AIDS and his leadership had helped to focus attention and make it clear that the Government attached great importance to this cause, therefore making it a Government priority. The Government had set up a programme involving all stakeholders to spearhead the fight against the disease. The campaign included awareness raising, the provision of access to anti-retroviral drugs free of charge and a dissemination campaign with particular emphasis on the youth and rural communities including urban centres. In response to a follow-up question, the delegation said Namibia had been cooperating with the World Health Organization on this issue.
In response to another question, the delegation said the Electoral Commission was an independent institution established by the Electoral Act which had the authority to control all elections in-country. The Commission consisted of a judge from the High Court to serve as the chairperson and four other members who were appointed by the President based upon the recommendation by the Parliament. Moreover, the President may appoint acting judges from the Supreme Court to fill vacancies.
Concerning a question on torture, the delegation said Namibia was a signatory to the Convention against Torture. Moreover, the Namibian Constitution strictly prohibited all acts of torture or cruel, inhuman and degrading treatment.
On a question raised by a Committee Expert, the delegation indicated that shelters had been established for victims of domestic violence which worked in conjunction with the Women and Children Protection Unit of the Namibian Police.
Preliminary Observations
ABDELFATTAH AMOR, Chairman of the Committee, said in preliminary remarks that the good will demonstrated by the Namibian delegation had been greatly appreciated by the Committee. Among other things, the Chairman expressed satisfaction that the death penalty in Namibia had been abolished and that the State party had been engaging in dialogue with civil society, in particular with non-governmental organizations.
The Chairman expressed concern that there had been limited reference to the facts on the ground in the report, despite it being well researched, and said more information on Namibia’s legal standards and how they were applied was needed. The Committee was unable to provide an accurate assessment on how the Covenant was being applied in Namibia. Concerning legal aspects, Mr. Amor said a great deal remained to be done in terms of positive written law which was still limited. Very often in the name of customary law offences could be committed against human rights, the Chairman said. Once a State endorsed international obligations, its national legislation must be brought in line with those commitments. Concerning domestic and police violence, the Chairman asked whether Namibia had done enough to contain this problem. In this context, many efforts needed to be made, particularly for battered women and children; action must also be taken at the education level.
In closing, the Chairman called on the Government of Namibia to follow up on the Committee’s observations and said it was up to the State to provide for the procedures likely to lead to a satisfactory implementation of the Committee’s observations.
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