Human Rights Committee reviews the report of Namibia

GENEVE (9 March 2016) - The Human Rights Committee today concluded its consideration of the second periodic report of Namibia its implementation of the provisions of the International Covenant on Civil and Political Rights.
 
The report was presented by Albert Kawana, Minister of Justice, who said that during the previous twenty five years, Namibia had established a good track record of political stability, prudent macroeconomic management, moderate economic growth and natural resource conservation.  Unfortunately, the country continued to experience prolonged drought due to the climate change.  As a result, the Government’s efforts to address the interconnected problems of poverty and inequality in the country had become even more difficult and challenging, because resources had been redirected to address the effects of drought.  Mr. Kawana informed that the budget for the Office of the Ombudsman had been increased to allow him to investigate cases of human rights abuses, carry out awareness programmes, and expand his staff to include a division responsible for human rights education. 
 
In the interactive dialogue, Committee Experts raised concerns regarding the lengthiness of time it took to adopt some key legislation, as well as their implementation.  They also raised concerns regarding issues of police involvement in sexual abuse, torture and trafficking, child labour and abuse, the rights of refugees, migrants and asylum seekers, the deplorable conditions of prisons and other facilities, and the allegations of mass graves.  They highlighted, in particular, their concerns regarding the freedom of movement of individuals in the Osire Refugee Camp, the rights of detainees of the Caprivi high treason case which had gone on for fifteen years and during which twenty two accused had died before the case was closed, the disappearance of fifteen San people while they were detained by the police, and the continuation of the practice of lobola and other traditional practices.
 
In his concluding remarks, Mr. Kawana stated that for the past twenty five years Namibia had made notable achievements in economic development legislative reform and increased access to social services.  Despite the significant progress, he recognized that Namibia was confronted with many challenges, and assured the Committee that these would be addressed.
 
Fabian Omar Salvioli, Chairperson of the Committee, in closing remarks, said that he hoped that some further explanations would be provided in written form within  48 hours.  Challenges that remained included the adoption and implementation of a number of bills that were still in procedure.  Human rights were not subject to public consultation, and had to be respected an guaranteed.
 
The delegation of Namibia included representatives of the Ministry of Justice, the Ministry of Home Affairs and Immigration, the Ministry of Gender Equality and Child Welfare, the Ministry of Safety and Security, the Ministry of Education, Arts and Culture, and the Permanent Mission to the United Nations Office at Geneva.
 
The Human Rights Committee will next meet in public today at 3 p.m. to discuss the seventh periodic report of Sweden (CCPR/C/SWE/7).

Report
 
The second periodic report of Namibia can be found here: CCPR/C/NAM/2.  
 
Presentation of the Report
 
ALBERT KAWANA, Minister of Justice, said that during the previous twenty five years, Namibia had established a good track record of political stability, prudent macroeconomic management, moderate economic growth and natural resource conservation.  Unfortunately, the country continued to experience a prolonged drought due to the climate change.  As a result, the Government’s efforts to address the interconnected problems of poverty and inequality in the country had become even more difficult and challenging, because resources had been redirected to address the effects of the drought.  The Namibian Government strongly believed that human rights issues were universal and should not discriminate on the basis of colour, gender or origin.  In a summary of Namibia’s reply to the List of issues,
Mr. Kawana informed that the strengthening of Namibia’s institutional framework had resulted in an increase in the budget for the Office of the Ombudsman to investigate cases of human rights abuses and carry out awareness programms.  In addition, his staff had been expanded to make a provision for a division responsible for human rights education. 
 
The overriding challenges Namibia faced were to effectively tackle and overcome the problem of unemployment and persistent poverty of its citizens.  The Government had embarked upon a poverty eradication strategy.  During 2015, the Ministry of Poverty Eradication and Social Welfare had been established with a mandate to coordinate all programmes in that respect.  In addition, Wage Order for Domestic Workers Regulations under the Labour Act of 2007 had been passed and had come into force in December 2014.  Other efforts included preparing a definition of the crime of torture, as stated in the United Nations Convention against Torture, the Child Protection Act passed in 2015, an act regulating female genital mutilation, free universal primary education as of 2014, a National Advisory Committee on Gender Based Violence, consisting of Cabinet Ministers, a review of the Combating of Domestic Violence Act with a view to increasing penalties, and the National Gender Policy (2010-2020). 
 
Mr. Kawana stated that Namibia currently hosted 2,932 refugees and asylum seekers, and 30 new asylum seekers arrived every month.  With that in mind, the Ministry of Home Affairs and Immigration had approved a policy to integrate the remaining 2,400 Angolan refugees.  A number of draft bills were under way, including Customary Law Marriage Bill, Divorce Bill and Child Justice Bill.
 
Questions by Experts
 
An Expert said that the Constitution stated that unless otherwise provided, the general rules of public international law would form part of the law of Namibia.  Could the delegation clarify that?
 
The delegation was asked to provide a clarification on the 2000 Müller case.
 
Had amendments proposed regarding the Ombudsman, in particular powers to recruit his own staff and full control of his budget, been accepted in the form of a bill so that the institution was fully compliant with the Paris Principles?
 
Did persons with disabilities fully enjoy their labour rights, asked the Expert.  Why was the Labour Act ineffective and which institution ensured the enforcement of its provisions? Were persons with disabilities informed of their rights?
 
Another Expert raised the issue of the new legislation on non-discrimination, and inquired whether it was fully implemented.
 
How did the discrimination of women, play out in terms of wages? 
 
Turning to people living with HIV/AIDS, an Expert asked the delegation to explain measures taken on sterilisation and voluntary sterilisation.
 
How did the Government respond to the allegations of discrimination against the lesbian, gay, bisexual and transsexual community?
 
On the Law against Torture, there was information that police officers were arresting sex workers and obliging them to have sex with them before they were released.  Could the delegation provide information on those and other allegations regarding the police?
 
Another Expert welcomed the development of the National Human Rights Action Plan, but noted that concrete legislative reforms were still delayed.  The Bill of Recognition of Customary Law Marriages was in consultation procedure since 2004.  Could the State Party provide information on the exact status of that bill?
 
What was the status of the legislation on inter-state protection and  property grabbing, asked an Expert.
 
On children born out of wedlock and the discrimination against them, question was asked if there was a lack of awareness of the legal provisions in place. Was the Child Protection Act of 2015 in force?

Another Expert asked the State Party to comment on why it went along with the proposal to terminate the Tribunal related to the Southern African Development Community, which had allowed the right to individual petition.
 
Regarding cumbersome procedures of abortion, was it true that a judicial authorisation was necessary for an abortion?  What were the grounds for having to consult three doctors that would certify that the relevant conditions for abortion were fulfilled?  Was the de-facto difficulty of a lawful termination of pregnancy associated with baby-dumping?  It seemed that younger women had little access to lawful terminations of pregnancy. 
 
An Expert inquired whether harmful practices against women and girls existed as claimed by several reports by international organisations.  Could the delegation specify the details of the research indicating that female genital mutilation did not exist in Namibia?  
 
Which monitoring strategies to improve investigation on gender based violence and rape were in place? More information was also sought on the Gender Protection Unit and the National Action Plan, in particular regarding support from traditional leaders, as well as the number of allegations of rape.  Were remedies available and accessible in practice for the victims of sexual abuse in work place? 
 
Another Expert asked what statistical information was collected regarding gender gap in employment in public and private sectors.   What investigation had taken place regarding the gender wage gap and what initiatives were undertaken to eliminate that gap? 
 
What actions had been taken in response to the recommendations of the Committee on the Elimination of all forms of Discrimination Against Women on the low representation of women in managerial positions in the public and private sector? 
 
What steps were taken to ensure that Gender-Based Violence Units were properly financed? How many units were there, and did the national budget have specific allocation for these units and for training their staff, and if so, what was the budget?  Question was also asked about steps undertaken to facilitate access of women in those units.  What were the circumstances for granting bail to perpetrators of domestic violence?  What were the investigations and outcomes on cases involving murder?  It was reported that one third of rape victims withdrew their cases.   The Expert wanted to know what steps were being taken to address that issue.  
 
Had the lobola, or bride price practice, been eliminated?  Passion killings continued to be reported, and were on the increase.  What measures were taken to combat them? 
 
Another Expert said that no evidence had been produced by the inquiries underway on mass graves. Could the delegation provide information on whether mass graves had been identified?  Had bodies been exhumed and identified  and returned to families, and had perpetrators been tracked down?  During the war of liberation an estimated 2,000 people had been accused of espionage, detained, tortured and died in secret places of detention called SWAPO Dungeons.  How had justice been pursued and how had reparations been made available to the victims?
 
Replies by the Delegation
 
Regarding the status of the Covenant under domestic law, the delegation explained that the Covenant was part of Namibian law once the law was ratified.  In order to make it available to the general public, the instrument was promulgated in the Official Gazette.  Implementation depended on whether legislation was self-executing or not.
 
The Ombudsman was already visiting prisons, and had his own budget.  For the past three years, though, Namibia had been hit by a drought and a big part of the national budget had been allocated towards that cause, which limited budgetary means for many other causes.
 
The delegation stated that the National Human Rights Action Plan was aimed at eliminating all forms of discrimination, specifically against persons with disabilities, women and lesbian, gay, bisexual and transsexual individuals.  The White Paper for the Human Rights Action Plan had been implemented in 2015.  There was no legal provision for same-sex marriage.  
 
The Racial Discrimination Prohibition Amendment Act criminalised racial discrimination, and a policy of national reconciliation was being currently promoted.  Affirmative action was in place, aimed at achieving balanced legislative, executive and judicial branches as well as balance in employment.
 
On the discrimination against individuals who were HIV positive, the delegation reiterated that discrimination and sterilisation were unlawful.  One exception was the defence forces, where the HIV-positive were recruited, but not engaged in physical work.
 
The definition of torture in the new Bill had been taken from the Convention, and it would be tabled this year.   
 
The Family Law Project, would regulate the discriminatory practices of customary marriage. In communal areas, under the customary law, marriage was “outside of community of property.”  If parties decided to marry “inside the community of property,” meaning sharing the property on a fifty-fifty basis, they had to give a fifteen-day notice.  That was an example of aa discriminatory practice that would be abolished with the Family Law Project. 
 
Lobolawas much cheaper than wedding rings in the West – it was a cultural practice that was practiced to prove that a man loved a woman.  Therefore, it would not be abolished. 
 
Polygamy had to be addressed in practice; a law was possible, but it had to be taken into consideration that most marriages took place in rural areas and the majority of the population lived in rural areas. 
 
The delegation informed that the process of sensitising young boys on domestic violence was ongoing, through traditional leaders.
 
Currently all children born in or outside wedlock had equal status as those born in wedlock, thanks to a new law. The Maintenance Act stipulated that parents had a duty to maintain children born out of wedlock.  Lawyers were obliged to withdraw maintenance funds from the salaries of those who neglected that obligation.
 
A delegate informed that a reconstitution of the Southern African Development Community Tribunal was underway, with a new tribunal to be put in place. 
 
Beliefs on abortion stemmed from cultural, customary and religious practices.  Currently there was a law which called for a referendum which would decide whether the country would have abortion on demand, or remain in the status quo situation.
 
Baby-dumping was admittedly an issue, but measures were put in place to resolve it.  If a girl did not want to take care of her child, the State would do so, and provided for places, including churches, where those children could be placed.  The Child Care Protection Act would soon be in place and would regulate domestic and international adoptions.
 
Regarding the availability of contraception, the information provided to the Committee by non-governmental organisations was outdated.  Contraceptives were currently available free of charge in all institutions and health clinics, and were also available in youth centres.
 
More information regarding harmful traditional practices, including female genital mutilation, would be provided to the Committee, following a research study which had just been concluded.  An old tradition called the Olufuko Festival, whereby girls who got their first periods underwent a week of training on how to prevent pregnancy, had been revived.  This tradition was a type of a family planning seminar during school holidays and had visibly reduced pregnancy rates. 
 
Some 25 percent of the national budget was dedicated to education, stressed the delegation.   Up to 60 percent of university graduates were women, and the largest number of those enrolled at all levels of education were girls.
 
Regarding sexual violence, it was true that women withdrew their complaints, sometimes due to family pressure. A Witness Protection Law would put an infrastructure in place to ensure that vulnerable witnesses were protected by the State.  In addition, the Whistle-Blower Protection Law would also allow for special protection for these who informed on corruption.   The Labour Act of 2007 covered sexual harassment.
 
On the issue of the representation of women in top positions in the public sector, the delegation informed that women represented 47 percent of the Parliament, thanks to policies enacted by the ruling party.  In the Government, the Prime Minister and the Deputy Prime Minister were women.  Within the ruling party, among the top four positions, namely, President, Vice President, Secretary-General and Deputy Secretary-General, the representation of women was fifty-fifty.  On the local level, there was an act that stipulated that in those municipalities where seven candidates were needed, at least three had to be women. If a mayor was a man, the deputy had to be a woman. The result was that there were many female mayors in Namibia. 
 
Regarding the representation of women in managerial positions in the private sector, according to the new law, the New Equitable Economic Framework, all sectors would require a certain percentage of ownership by three groups: the previously disadvantaged Namibians (who had been disadvantaged by the apartheid system); women; and persons with disabilities.  Measures included shares, ownership and managerial positions in the private sector.
 
The delegation said the allegations regarding a mass graves in the Caprivi region, which was now called the Zambezi region, were untrue. There were no mass graves there.   He invited members of the Committee to visit and see for themselves.  The territorial integrity of Namibia was non-negotiable and its boundaries had been defined by the League of Nations with two treaties.
 
It was stated that Namibia’s war of liberation had been approved by the United Nations through she Security Council resolution 435, which had stated that the people of Namibia had a legitimate cause for Namibia’s independence.  An amnesty law had been passed, and all troops, including those of South Africa, South West Africa People's Organization and the People’s Liberation of Namibia, had received amnesty. 

Questions by Experts
 
An Expert stressed that the Committee’s had nothing to do with the territorial integrity or sovereignty of the State.
 
Another Expert raised the issue of the regime of protecting victims of violence, and wanted to know more about expanding personnel empowered to issue orders outside of working hours, improving access to shelters, and other issues.
 
More information was also needed on the legislation on persons with disabilities.
 
Could protective orders be issued when domestic violence concerned same-sex couples? Cases of so-called “corrective rape” had not been investigated or prosecuted, said the Expert.
 
Regarding sterilisation, had the State contemplated formal guidelines for establishing formal content for medical procedures?
 
Regarding the lobola practice, was the State contemplating legislation that would provide that the bride price could not be demanded following dissolution of the marriage?
 
No information had been provided on child labour. Did the State Party collect statistics on child labour, forced labour and trafficking, an Expert inquired.
 
Access to private farms was a major obstacle to enforcing child labour and other labour laws.   How many inspections had been done in the previous few years, how many had been denied, and how was that resolved?   Were labour enforcement officers provided with vehicles so that they could carry out inspections? Were the plans to increase budget for inspections?
 
Regarding trafficking, question was asked on changes planned for the Draft Bill on Anti-Trafficking and the timeline for its enactment.
 
On detainees, the delegation was asked to address the Ombudsman’s allegations that 87 persons were waiting for pre-trial mental observation for prolonged periods of time.   Could data be provided for non-compliance with the 48-hour rule?  Were any persons detained under the Combatting Terrorism Act?
 
An Expert asked if the delegation could confirm that the legislation in place had protective measures for refugee status and non-refoulement law.  How many claimants had been granted refugee protection?   What plans were there to ensure appropriate protection of minors and unaccompanied children?
 
Was the State Party considering the closure of the Osire Refugee Camp and granting asylum to the refugees therein?
 
Another Expert understood that the new Southern African Development Community Tribunal would not have the right to individual petition, without which, human rights were not well protected.  Could the delegation confirm that?
 
Regarding the alleged referendum that would be held on abortion on demand, the Expert stated that human rights could not be subject to opinion polls.    What publicity had the State party given to the change in policy regarding distribution and availability of contraceptives?
 
The Expert was concerned that traditional leaders in the Zambezi region had confirmed that all the traditional practices referred to in the List of Issues of the Committee were still occurring in their communities.
 
What were the plans to better ensure the prosecution of perpetrators of the crime of rape?
 
Regarding prison conditions, did the responses to the List of Issues refer to pre-trial holding cells and, if not, could information be provided on pre-trial holding cells?  What was the number of those and their conditions?  Was it true that no justices had exercised their powers to visit places of detention?  If there were such visits, was there information on reprisals?  
 
Were there plans to ratify the Optional Protocol to the Convention and to train judges, an Expert asked.
 
Question was asked on plans to conduct the monitoring of the functioning of traditional courts.
 
Regarding legal aid, could the delegation confirm that it was virtually impossible to have legal aid due to the budget cut-down, except in murder cases?
 
How was the Common Purpose Doctrine compatible with the Covenant, in light of the fact that many of the detainees in the Caprivi high treason case had been held in preventive detention for fifteen years, ten had died while detained by the police before the start of the procedure, and another twelve had died before the end of the procedure, and before the verdict for reparation?  Had any prosecutions been initiated against those accused of torture ?
 
Could the delegation provide more information regarding the complaint filed in 2001 on the disappearance of fifteen San people while they were detained by the police?
 
Could the State Party indicate what measures would be sought to guarantee that interference provided by the law was not arbitrary?
 
On academic freedom, question was asked on whether Research Science and Technology was in line with the Covenant.  What kind of research had to be submitted and was there an application fee, and did the Act allow for resubmission for proposals? 
 
Regarding freedom of the press,  did journalists working on media practice self-censorship?
 
Was the Child Justice Bill in force, another Expert inquired.  Which financial resources would be allocated for its implementation and were the provisions for children under sixteen respected?  Could the State Party give data on how many juvenile cases were currently pending before the Namibian courts?
 
What was the magnitude of the problem of children as victims of violence, sexual abuse and prostitution?  Allegedly, the police did not keep records of child prostitution.  According to the information received, Namibia was a country of transit for child trafficking.  How many social workers were working on that? What had the Ministerial Committee decided and what progress had been achieved in this respect?  The Child Care and Protection Act of 2015 did not deal with prostitution and trafficking.  Were there plans to amend that?
 
Regarding electoral rules, did the identification rule for someone who was already registered an absolute rule or could it be waived, i.e. could the restriction be removed?
 
Question was asked on how many of the recommendations of the Special Rapporteur on indigenous peoples had been implemented.  Were indigenous peoples consulted about the activities in places where they lived?  There were reports that the Nama people had not been consulted for planning for mineral extraction, especially diamonds, where they lived.  What had happened in that and other cases? Were indigenous peoples now consulted and was compensation, including resettlement, provided?
 
Concerning land tenure rights, an Expert wanted to know whether the traditional authorities had the power to administer the territories which they claimed to belong to them.
 
On the issue of cultural diversity of indigenous peoples, were their interests, including the right to be educated in their language, been taken into account? Had the complaints of San and other peoples regarding health workers been addressed? 
 
Another Expert re-iterated his question on the allegations of police officers involved in torture, prostitution, and the information that they obliged prostitutes to have sex with them.
 
What amendments would be introduced on the Act on Divorce and did it apply to religious and customary marriages.  As for the marriage of minors, the law punished marriage for those under 18.  What number of cases had been adjudicated on the marriage of children?  What was the difference between religious and traditional marriages?
 
On freedom of information, the delegation was asked to provide an update on whether there was progress on the passage of the Freedom of Information Act. 
 
Replies by the Delegation
 
Regarding statistics, the delegation explained that Namibia was a developing country and, as such, there was limited capacity to gather statistics. An e-justice project was ongoing which would provide information to the public.
 
Turning to domestic violence, the delegation stated that a law would be introduced on restraint orders which would accord the mandate to other entities, other than magistrates to issue orders.  There were seven shelters, but had to be upgraded and staff members had to be appointed.
 
Regarding persons with disabilities, a number of recommendations of the Committee had been noted and would be considered in the new law that was before Parliament.
 
Same-sex marriage was not recognized, however no police officer had been authorised to enter homes and find out what was going on inside the homes.  Just the previous week, Namibia had been rated the most tolerant country in Africa.
 
If forced sterilisation was to be carried out, such a request had to come from the mother.
 
Child labour was completely outlawed by the Constitution.  Administrative measures and amendments would be considered as per recommendations of the Committee.  No authorisation had been given by the Government to allow for child labour.   Labour inspectors had access to farms, and more statistics on provision of vehicles and other information would be provided in writing.  Regarding worker compensation, the delegation informed that there was a minimum wage prescribed by law.
 
The Trafficking Law was in the line Ministry for further consideration before it was tabled in the Parliament, and would be one of the first bills to be in the Parliament after the adoption of the budget.
 
The delegation informed that  lower courts in Namibia were now introducing mobile courts to address the backlog of cases.
 
In 2015, the Law on the Office of the Judiciary had been passed, ensuring the full independence of all departments in the justice system.
 
Regarding unaccompanied children who had been denied refugee status, the delegation claimed that it was new information and Namibia was unaware of this.  Children were treated on the same basis as their parents.
 
Responding to the question on the South African Development Committee Tribunal, the delegation said that it was correct that the right to individual petition had been removed.  That was a multilateral tribunal and Namibia did not have the only say in its matters.
 
The delegation said that it had taken note of the Committee’s recommendations regarding abortion.
 
Cultural and traditional issues could not be changed overnight.  Currently, traditional leaders were being sensitised in order to make them aware that some practices had to change.  The Council of Traditional Leaders met every year, where those issues were addressed.  In addition, each traditional authority was addressed individually.  That project had been started in March 2015 and would be continued.
 
The National Action Plan had been approved by the Cabinet, however due to the severe draught in the previous three years, the financial and other resources had been redirected. Therefore, the implementation was difficult.
 
On prison conditions, the delegation said that the Ombudsman had visited several detention facilities and was doing a very good job. The need for remand prisons was taken note of, and at the moment one was being acquired.  In prisons there were separate cells for pre-trial holding.
 
Traditional courts were regularly visited by the Ministry of Justice which ensured their compliance with the Covenant.  The delegation informed that legal aid was part of the budget and it was not difficult to receive it. 
 
With regard to the detainees in the Caprivi high treason case, who were prisoners of conscience, and the “common purpose doctrine,” the delegation said that the case was still before the Court.  Those found guilty had appealed  and their appeal was currently being considered.  Regarding the death of some of the people who had been found guilty, the delegation said that they  were not innocent people but rather individuals who had been involved in war.  No torture had been used on them.
 
One could not intercept information without the authority of a judge from the High Court, said the delegation.   
 
On intimidation of state journalists, since independence, there had been only one instance where a journalist had been sentence for conduct.
 
Turning to the issue of child abuse by police officers, a delegate said that it was prevalent in border areas, and the authorities were taking action to tackle it.  Recently perpetrators had been sentenced to thirteen years of prison.
 
The delegation said that voters had to identify themselves when voting, and in the absence of identity cards, they had to be identified by two persons..
 
Regarding marriage of children, the delegation said that a new law would raise the minimum age from sixteen to eighteen.
 
 
Follow-up Questions
 
Were religious marriages separate from traditional marriages?
 
An Expert asked whether victims of sterilisation were provided compensation by the State Party.
 
Question was asked on the location of the seven shelters for victims of domestic violence.
 
Regarding the Osire Refugee Camp, given that the Government had decided to retain it and had given permits to refugees to study and work outside of the camp, had the State Party considered eliminating the requirement to receive permission to leave the camp?
 
Replies by the Delegation
 
The delegation said that there was a difference between customary and religious marriages.  Under the Family Law Project, undertaken by the Law Reform and the Development Commission, those issues would be clarified.  The aim was to protect women and children during divorce matters, in customary marriages. 
 
The requirement for permission in the Osire Camp was necessary for protection purposes.  That was in line with international obligations regarding refugees that Namibia had assumed.
 
Concluding Remarks
 
ALBERT KAWANA, Minister of Justice, expressed appreciation for the cooperative atmosphere and the hospitality of the Committee.  For the previous twenty five years Namibia had made notable achievements in economic development legislative reforms and increased access to social services.  Despite the significant progress, it was confronted with many challenges, which needed to be addressed before citizens could fully enjoy human rights and freedoms contained in the International Covenant on Civil and Political Rights.  The Government had put in place numerous laws, policies and programmes and would continue to work with all stakeholders to ensure human rights protection. 
 
FABIAN OMAR SALVIOLI, Chairperson of the Committee, said that the delegation had highlighted adopted legislation and projects.  The delegation had also expressed surprise at some issues raised by the Committee even though those had been previously raised, and made public by other United Nations bodies.   He hoped that some further clarifications would be provided in writing.  There were many challenges at the legislative level, including a number of bills that were still in process and the State Party had recognized that.  Human rights were not subject to public consultation, and had to be respected an guaranteed, stressed Mr. Salvioli.

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