禁止酷刑委员会审议纳米比亚的报告

禁止酷刑委员会

2016年11月21日

禁止酷刑委员会今天下午结束审议纳米比亚关于落实《禁止酷刑公约》条款情况的第二次定期报告。

纳米比亚司法部长艾伯特·卡瓦纳（Albert Kawana）在呈交报告时表示，《宪法》明文禁止酷刑和残忍、不人道或有辱人格的待遇或处罚，并规定法院不应受理通过酷刑获得的证词或供认。另一项定义了酷刑的法律符合《公约》第一条，草案已制定完成并即将交由议会讨论，议会还有望通过一项批准《任择议定书》的法案。增加了监察员办公室的预算，以使其调查践踏人权的案件并开展意识提升方案，包括近期启动的鼓励所有人报告酷刑的活动。2001年的《教育法》编入了对学校中体罚的禁止，2015年的《儿童关爱与保护法》明文禁止了家庭体罚。目前仍在进行中的翻修使监狱和警察拘留室的物质条件得到了巨大改善，建造了两所新的监狱，一所建于国家的北部，另一所建于南部。

在随后的对话中，委员会专家提到了包括国家公务人员在内系统性地使用酷刑的报告。收到了多少这类投诉，多少已进行了调查和处罚，而为终结酷刑做法又做了什么?专家十分担忧解放斗争和国家紧急状态期间所犯罪行有罪不罚的问题，以及独立前的强迫失踪、酷刑或即审即决罪行有罪不罚的问题。专家询问了警察内部调查局的有效性以及已收到的投诉数量和已执行的处罚，尤其是在通过狱警行为守则后。专家讨论了改善拘留条件的措施、监督羁留设施的系统以及分配给监察员办公室使其充分完成访问各个拘留场所任务的预算。其他令人担忧的问题有强奸案件包括强奸儿童的起诉率之低；监狱中艾滋病毒/艾滋病的高发率以及缺乏防止该疾病进一步扩散的机制；对男女同性恋、双性恋、跨性别者和双性者的歧视与暴力行为。

纳米比亚代表团包括司法部、国防部、安全与安保部以及纳米比亚常驻联合国日内瓦办事处代表团的代表们。

委员会将于11月22日（周二）下午3点举行下一次公开会议，审议土库曼斯坦的第二次定期报告 (CAT/C/TKM/2)，此次审议于11月21日（今天）上午10点开始。

Report

The second periodic report of Namibia can be read here: CAT/C/NAM/2.
 
Presentation of the Report

ALBERT KAWANA, Minister of Justice of Namibia, explained that the report had been prepared in consultation with the Inter-Ministerial Committee on Human Rights and Humanitarian Law, a technical committee representing line ministries and agencies of the State, and that civil society organizations and the Office of the Ombudsmen had had an opportunity to comment on its final draft.  The Government of Namibia did not accept torture as it was incompatible with human rights and justice.  The Constitution expressly prohibited torture and cruel, inhuman or degrading treatment or punishment, and provided that no court should admit in evidence testimony or confession obtained through torture – this was also prohibited by the Criminal Procedure Act of 1977.  Acting on the Committee’s recommendation to enact separate legislation to clearly define and criminalize torture in the criminal justice system, the Namibian Law Reform and Development Commission had completed draft legislation which would soon be tabled in Parliament and which would define the crime of torture as explicitly stated under the Convention. 

Namibia intended to ratify the Optional Protocol which would be done as soon as the Bill was passed by Parliament.  The budget for the Office of the Ombudsmen had been increased to enable it to investigate cases of human rights abuses and carry out awareness raising programmes, including the recently launched campaign to encourage all to report cases of torture.  The Office of the Ombudsmen had developed a manual which aimed to increase compliance with the Convention by the police, and was involved in human rights training of all law enforcement officers in the country.  The prohibition of corporal punishment in schools had been codified in the Education Act of 2001, while the Child Care and Protection Act of 2015 expressly prohibited corporal punishment in the home.  The physical conditions of the correctional facilities and police holding cells had improved drastically due to major renovations which were still ongoing, and two new correctional facilities were being built, one in the north and another in the south of the country.

Questions by the Country Co-Rapporteurs

ABDELWAHAB HANI, Committee Expert and Co-Rapporteur for Namibia, took positive note of the acceptance of recommendations to ratify the Optional Protocol and to set up a national preventive mechanism, and asked about the intentions of Namibia concerning recognizing the jurisdiction of the Committee to receive individual complaints.

Commending Namibia for acting on the Committee’s recommendation from 1997 to enact a separate law defining torture in line with Article 1 of the Convention, Mr. Hani asked about the content and the scope of the draft law.

Some civil society organizations had reported the systematic use of torture in Namibia.  What measures were being taken to end the practice of torture and how were the cases of torture investigated?

Taking positive note of the support provided to the Office of the Ombudsmen, in particular the Torture Prevention Project 2015 and the valuable training manual on the prevention of torture for police officers, it was noted that the budget was not yet sufficient to enable the Office to fully implement its mandate, especially new competences, in particular visits to places of detention.  Namibia should amend the law 799 on the Office of the Ombudsmen to give it greater independence, including financial independence and independence in hiring its staff.

The Office of the Ombudsmen currently carried out two visits to places of detention every year, and this should be increased.  What mechanism was in place to address the recommendations issued by the Ombudsmen following those visits?

What was being done to improve conditions of detention?

How many cases of torture and mistreatment had been identified by the domestic investigation mechanism, and what prosecutorial and disciplinary measures had been undertaken against offenders?

The provisions relating to the fundamental legal safeguards and the right to fair trial were not implemented in practice.  What was being done to correct this?

What progress had been made on the ambitious plan of opening up three psychiatric hospitals?  Did the Office of the Ombudsmen have the right to visit those facilities and what mechanism was in place to address the recommendations?

What guarantees were there in law and practice to protect persons from illegal and abusive interment, and to ensure that no one was subjected to the illegal and inhuman practice of chaining up?

Namibia had a very rich jurisprudence on the rights of persons in conflict with the law.  Had it given rise to new legislation and how was it being implemented in practice?

Was the Anti-Terrorist Law in accordance with the provisions of the Convention against Torture?  Was the absolute prohibition of torture respected in all circumstances, including in peace, war and state of emergency?

How did Namibia cooperate with the United Nations Refugee Agency on the principle of non-refoulement?  There were reports of the precarious situation of asylum seekers during the period of examination of their requests – what efforts were being undertaken to improve conditions in those camps?  What was the intention of Namibia concerning the ratification of the African Union 1969 Convention governing the Specific Aspects of Refugee Problems in Africa?

Was the crime of torture covered by the Extradition Law?

African countries were the leaders in the setting up of the International Criminal Court, said Mr. Hani, who expressed concern about negative statements in Namibia and calls for its withdrawal from the Court.  What was the official position of Namibia concerning the cooperation with and support of the International Criminal Court?

SAPANA PRADHAN-MALLA, Committee Expert and Co-Rapporteur for Namibia, congratulated Namibia on the progress made since independence and recognized the difficulties inherent to any transition process.

What was being done to educate and train the members of the police, army, prison service and other law enforcement offices as well as medical officers on the prevention and identification of torture, and fundamental legal safeguards available to the detainees?  Were they also trained in the Istanbul Protocol on the Effective Investigation and Documentation of Torture, and on Standard Minimum Rules for the Treatment of Prisoners or “the Mandela Rules”?  Namibia should invest more efforts in training prosecutors and judges as that was critical in ensuring justice.

What system was in place to monitor detention facilities and what was being done to create an inspection mechanism?

Was the Internal Investigation Directorate of the police functional, and if so how many complaints of torture by police officers had been received and what action had been undertaken, especially after the preparation of a handbook for inmates and a code of conduct to the correctional officers?

The Country Rapporteur was very concerned about the high ratio of HIV/AIDS in prisons.  How many people living with HIV/AIDS were in prison, and how many had access to antiretroviral therapy in prisons?  What mechanism was in place to prevent the further spread of HIV in prisons?  Were people living with HIV/AIDS segregated and if so how were their human rights and dignity respected?

How was mental torture criminalized in the existing legal framework?

Concern was raised about impunity for crimes committed during the liberation struggle and the state of emergency, as well as for pre-independence cases of enforced disappearances, torture or summary executions.

How many cases of complaints of torture or cruel, inhuman or degrading treatment had been received against State agents, including superior officers and public authorities; what was the number of criminal and disciplinary proceedings instituted; and what sanctions had been imposed?

Noting that gender-based violence was recognized by the Committee as a form of torture, Ms. Pradhan-Malla welcomed the adoption of the law which criminalized rape and strengthened sanctions.  There were 24 boys among the 1,117 victims of rape reported in one year and the delegation was asked if paedophilia was criminalized and whether the definition of rape was beyond vaginal penetration.  Around 70 per cent of victims were girls: were there specific sanctions for the rape of the girl child, was compensation provided, and what was being done to encourage the use of the formal justice system? What programmes were available for the rehabilitation of the child victim?

Other concerns in relation to gender-based violence included increased incidence of intimate partner killings, harmful traditional practices, early marriages and the low rate of prosecution of cases of domestic violence.

The Committee was concerned about discrimination and violence against lesbian, gay, bisexual, transgender and intersex persons.  How did Namibia ensure the protection from refoulement of persons who faced prosecution on the basis of sexual orientation and gender identity?

Questions by the Experts

Had the Convention ever been invoked in courts and if so, in which cases?

What were the regulations governing the access to medical services in places of detention?

Asylum seekers who had committed minor offences were given 48 hours to leave the country.  Which authority made the decision and what recourse mechanism was in place?

Under the Refugee Recognition and Control Act of 1999, it was possible to expel a recognized refugee or protected person if the Government was of the opinion that the expulsion was in the interest of the country’s national security, public order, or morality.  This was in contravention with article 3 of the Convention and the absolute principle of non-refoulement.

Was trafficking a crime?  What was the dimension of the phenomenon in Namibia?

A Committee Expert commended Namibia for adopting the Domestic Violence Act in 2003 and asked what was being done to implement the recommendation made by the Office of the Ombudsmen which called for training and awareness raising in the society on the phenomenon of domestic violence.  This was particularly important given the very low rate of prosecution of cases of rape.

What was the status of the Bill which would enable the ratification of the Optional Protocol to the Convention against Torture?  Would it give rise to the setting up of the national preventive mechanism?

JENS MODVIG, Committee Chairperson, commended Namibia for the progress made in improving conditions in detention, keeping the number of pre-trial detainees low, keeping the number of prisoners commensurate to the capacity of the facilities, and for almost halving the imprisoned population.  Concern, however, remained about the lack of availability of medical services in prisons.  Were there cases of corruption in the criminal justice system and what was being done to ensure they did not happen?

Further on medical services in prisons, the delegation was asked to explain the reasons for the many vacancies for medical officers, and how Namibia trained the medical staff in identifying torture, including on the Istanbul Protocol.

Responses by the Delegation

Taking the floor to start responding to Experts’ questions, a delegate stressed that Namibia was a product of international solidarity; it was aware of the history of colonialism and apartheid and would be the last country in Africa to deliberately abuse human rights and tolerate torture.  Namibia had vowed that the experience of apartheid would never happen again and repeat itself.  Namibia was today one of the top five countries in Africa in terms of good governance and observance and protection of human rights, a number one in press freedom and was rated very highly in matters of judicial independence.

Turning to the disappearances by the South West Africa People's Organization, a delegate said that it had happened as part and parcel of the 25 years of struggle for national liberation.  Many people had disappeared and not been accounted for in Namibia since World War I, and the national liberation struggle was not an exception.  It was very dangerous to open the old wounds as that struggle had pitted brother against brother and sister against sister. 

Seven political parties which had drafted the Namibian Constitution had agreed on the policy of national reconciliation and on amnesty for all combatants, under the supervision of the United Nations.  This included combatants from the South West Africa People's Organization, South African Army, South West Africa Territory Force, and other armed groups set up by the people of Namibia.  The focus must be on Namibia of the future, of peace and stability, so that it could move forward as a nation.  Notwithstanding the amnesty, the leaders of the South West Africa People's Organization, the ruling party in the country today, had apologised for what had happened.  It was the nature of war.

Torture was considered in a very serious light and it was in this spirit that Namibia had ratified the Convention.  The Constitution was one of the most comprehensive in the world in the matter of the protection of rights and freedoms.  The protection contained in Chapter 3 could never be removed, even with a two-thirds majority of parliament. 

The Bill on the Prevention and Combatting of Torture had been approved by the Cabinet and was now on its way to Parliament, which had a prerogative to amend whatever was presented to it; regardless, the principle of non-acceptability of torture would be maintained.  The Bill contained the definition of torture using the language of the Convention; it described acts or omissions which constituted torture; criminalized torture, provided sanctions and ensured no immunity, in a language close to the Convention; and proposed to completely overhaul the investigation and interrogation rules.

The Cabinet had also approved the legislation on witness protection and whistle-blower protection, which would promote the reporting of crimes, including torture, said a delegate.

Continuing with the responses to questions and issues raised by the Experts, a delegate said that Namibia was aware of the allegations of mass graves at the border with Angola, raised by a non-governmental organization in the 1990s.  The Government had stated then that it was ready to pay all the expenses for foreign journalists to come and verify the existence of the grave, upon which the said non-governmental organization had withdrawn.  It had been later established that the mass grave contained victims of an incursion of the South African Army into some of the villages in the area in 1972.  A number of other massacres had been committed by South African troops and their mercenaries during the occupation and the liberation struggle, including in Kasinga, Angola where more than 600 civilians had been killed in 1987. 

With regard to the Caprivi high treason case and the allegations of torture, the delegation explained that the case was in relation to the 1999 attempt to secede a part of the country in the Caprivi region, today known as Zambezi.  Several police officers had been killed and injured, and their colleagues had committed acts of torture in retaliation.  To date, 77 victims had settled out of court in a civil case and had received compensation.

Namibia had indeed been one of the very first countries which had signed the Rome Statute establishing the International Criminal Court; unfortunately, the Court was discriminatory in targeting perpetrators of atrocities and genocide as all those appearing before the Court were Africans.  While millions of persons were dying in other conflicts, not one of those perpetrators was before the Court, and this was a source of great disappointment for the African Union.  Namibia would welcome an independent African institution to deal with human rights violations.  There were no indications of withdrawing from the International Criminal Court, but Namibia reserved its right to do so.

There were currently 4,505 refugees in Namibia; while refugees from the Democratic Republic of the Congo were arriving at the rate of about 15 per week, the number was now increasing to more than 20 per week, and the total number of Congolese refugees currently stood at 2,525 persons.  As for Angolan refugees, there were those who feared returning to their country, and the Government had decided to resettle them in Namibia.

The Cabinet had decided, on a political level, to ratify the Optional Protocol, and it was now up to Parliament as the legislative body to pass the required legislation.  Namibia was not at the moment able to issue the declaration under Article 22 to recognize the competence of the Committee to receive individual communications, but it would continue to give the issue due consideration.

Namibia was a low-resource developing country which had been suffering from the worst drought in living memory for the past three years, as a result of which it was forced to cut almost US$ 6 billion from the Government and State institutions, in order to provide funding for drought relief.  This was one of the obstacles that Namibia faced in meeting its international obligations, such as funding of the Office of the Ombudsmen.

Visiting justices – magistrates or Ombudsmen – could conduct unannounced visits to places of detention and make recommendations to the Government.  In order to improve conditions in detention centres, the Government was contracting two additional correctional facilities.  The Correctional Services Act provided for medical care in correctional facilities, with bigger centres having in-service nurses.

Everyone in Namibia had the constitutional right to a fair trial and legal representation and they were informed of those guarantees at the time of arrest and again at the time of the first court appearance.  The High Court could refer any case back to the Magistrates Court if due process had not been followed.

A new psychiatric hospital would be built in Nankundu, Kwango West Region, and another would be constructed in the south of the country.  The Mental Health Act of 1973 stated that no person who suffered or was alleged to suffer from mental illness would be detained at any place unless such detention was in accordance with the Act. 

Trafficking in persons was currently being dealt with under the Prevention of Organized Crime Act of 2004, and Namibia was busy drafting a separate law on the Prevention of Human Trafficking.  The bill had already been approved by the Cabinet, while the Ministry of Gender Equality and Child Warfare was tasked with tabling it in Parliament.

Namibia intended to soon assess the effectiveness of the Police Internal Complaints Department in order to ensure that justice was done, and not only seen as done.

All inmates in all correctional facilities in Namibia had access to medical care and were taken to hospitals when needed.  All inmates and all persons in the country in general had free access to antiretroviral treatment, and Namibia was one of the most successful countries in Africa in this regard.  The distribution of condoms in prisons was a culturally and religiously sensitive issue which would require extensive consultations with all stakeholders before a final decision was taken.

The Constitution had been amended in 2014 to further enhance the independence of the judiciary: the Chief Justice had been made the Head of the Judiciary and currently, the judiciary was a self-accounting entity with its own budget and staff.

Namibia was not yet a party to the African Convention on Refugees, but the Cabinet had agreed to its ratification.  In addition, the Constitution prohibited statelessness of children born to illegal immigrants.

Namibia was looking into ways to amend the Combatting Domestic Violence Act 2003 in order to strengthen the protection of victims and provide support to vulnerable witnesses.  A coordination mechanism for the implementation of the National Gender Policy had been established with the aim of providing advice to the Government and all stakeholders on best strategies to root out the scourge of gender-based violence in the society.

In 2012, the High Court had delivered a judgement in the case in which 16 HIV-positive women sued the Government for being sterilized without their consent at State health facilities.  The Court had ruled in favour of three of those women.  The Ministry of Health and Social Services had issued a directive called Guidelines on the Provision of Family Planning Methods and Sterilization, in order to provide guidance on the provision of family planning services to HIV-positive women.

Under the Criminal Procedure Act of 1977, judicial officers had the power to award compensation to a victim of crime, which included rape, during the criminal trial.  The Constitution recognized customary law and therefore what was termed “settlement out of court” was done through this process: customary law placed emphasis on the compensation of victims of crime as opposed to statutory law which put more emphasis on custodial sentences.  It was up to the victim of rape to choose which system to use.

The Ministry of Justice was finalizing the Child Justice Bill, which would include issues such as diversion programmes and the custody of juveniles as the last resort.  It was expected that the law would be passed by Parliament next year.

Namibia took corruption very seriously, it monitored its public and private institutions for corruption, including in the correctional facilities, as it aimed to becoming the least corrupted country in Africa, up from the current second least corrupted.

Follow-up Questions by the Experts

ABDELWAHAB HANI, Committee Expert and Co-Rapporteur for Namibia, said that it was not possible to build a lasting peace without justice and asked whether a new investigation had been conducted into the Caprivi case in connection with new revelations and the public recognition by a high-level official that victims had been tortured. 

Mr. Hani thanked Namibia for remaining with the International Criminal Court and not siding with those who were hiding behind “double standards” to defend the undefendable: crimes of genocide, war crimes and crimes against humanity.

With regard to refoulement of refugees and asylum seekers, did Namibia have in place a mechanism to assess on a case-by-case basis the risk of torture if they were sent back?  Did having a protection certificate by the United Nations Refugee Agency protect refugees from being sent back?

Was there a system in place to coordinate and monitor the implementation of the Ombudsmen’s recommendations?

What standards were imposed to ensure that customary law was within the laws of the country?

The draft law on the prevention of torture 2016 was a very good proposal, but the lack of reference to ill-treatment weakened it, especially as fighting ill-treatment was the first step.  This also applied to matters of universal jurisdiction which the bill proposed.

SAPANA PRADHAN-MALLA, Committee Expert and Co-Rapporteur for Namibia, referred to explanations for the lack of systematic distribution of condoms in prisons and while recognizing that it was a sensitive issue, noted that the lives of people were at stake.

What compensation was provided in cases of rape?  It was disappointing that the Constitution allowed settling out of court for acts of rape.

Other Experts raised a number of issues, including the possibility for the Ministry of Interior to oppose an expulsion decision made by the judiciary which was supposed to be independent; the age of criminal responsibility that was at 16, which was counter to the provisions of the Convention on the Rights of the Child; whether Namibia had an open and standing invitation to the United Nations Special Procedures; and the denial of property rights of indigenous people over their land.

Sexual initiation of girls might be a traditional practice, but it could not be accepted as it ran counter to human dignity and needed to be stopped.  

Responses by the Delegation

The delegate reiterated that 77 individuals had received compensation in the Caprivi case, which was a case of high treason, and said that some of those were now suing the Government for malicious prosecution.  It was stressed that the Government was still paying for their lawyers. 

No refugees had been sent to their country of origin.  An Immigration Selection Committee was in charge of hearing stories of persons seeking asylum in Namibia, and it decided on who would be accepted as a refugee. 

Rape was a very serious offence in Namibia, and all those suspected of committing rape were immediately arrested.  This was however difficult in a traditional society, in which victims and their families did not want to disclose it to the society, and preferred instead the discreet compensation mechanism of the customary law.

Chapter 3 of the Constitution addressed fundamental rights and freedoms and was very strict; it included the prohibition of torture, and defined the right to recourse and redress to victims.  That was why training of judges and prosecutors addressed first of all Chapter 3 and its rights that could never be diminished.

Concluding Remarks

CLAUDE HELLER ROUASSANT, Committee Vice-Chairperson, thanked the delegation for their responses and wished them a safe journey home.

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