o Li;
REPUBLIC OF NAMIBIA
NAMIBIA'S INITIAL GENERAL REPORT IN TERMS OF THE AFRICAN CHARTER ON HUMAN AND PEOPLE'S RIGHTS
Ministry of Justice Private Bag 13302 Windhoek
October 1997 TABLE OF CONTENTS
PAGE
PART ',General.
Land and people 1 Population of Namibia 3 Economic characteristics 14 Demographic characteristics 15 General political structure 26 General legal framework within which human rights are protected 29
PART II, The substantive rights recognised under relevant articles.
Article 2 33 3 34 4 35 5 35 6 38 7 40 8 42 9 45 10 46 11 49 12 50 13 53 14 58 15 62 16 64 17 64 18 65 19 67 20 68 21 69 22 69 23 71 24 73
Conclusion 78 PART I
GENERAL
LAND AND PEOPLE
1. Namibia is a land of 824 000 square kilometres, with 1400 km of coastline. It has a narrow coastal desert plane, from which the land rises to an extensive interior plateau, 1000- 1,500 m above sea level. Namibia is one of the most arid countries in the world. Rainfalls are low and variable, evaporation rates high, and there are no permanently - flowing rivers between the southern and northern borders. Rainfall increases from south-west to north-east. The coastal strip is hyper-arid desert, and only 8% of the country, in the extreme north-east, receives more than 500 mm of rain per, which is considered the minimum for dry land cropping. The potential rate of evaporation from open water far exceeds rainfall by 420% in the north, and 1, 750% in the south. Rain falls in short sharp bursts, resulting in low infiltration, and can be highly localized.
2. Just as critical as average rainfall, is its variability. The driest areas suffer most variability. This means 2 years of well-below-average rainfall, or drought, are to be expected. This variability also demands flexible land-use in order to prevent degradation, because what the land can sustain in a wet year becomes over - exploitation in a dry one. Climate, sild and water availability determine the three vegetation biomes: desert (16% if the land areas), savanna (64%) and dry woodland (20%). The low, variable rainfall accounts for may of the adaptions developed by plants and animals, and has also shaped the land settlement and management patterns of people.
3. As one of the world's most arid countries, it is not surprising that Namibia is also one of the least densely populated. Average population density is 1.7 people per a square kilometre. Countries such as Pakistan and Turkey, of a similar size, support 30 times as many people. In the past, settlement was confined to those areas with reliable water (such as the Cuvelai drainage basin with seasonal "Oshana" along the Okavango river, riverine areas of East Caprivi, and near Windhoek's spring)while transhumance was practised elsewhere. Nomadic pasteurism, as practised by the Himba, is a way of coping with variations in pasture between areas and years. Under current land-use patterns, determined by politics and economics as much as ecology, commercial farms occupy 54% of the country, mainly in the south and centre, communal land accounts for 40% largely in the north, proclaimed conservation areas 13% and diamond areas 2%.
The key implications of these geographical characteristics are:
water is scare: difficult and expensive to locate and extract; the majority of the land is only suitable for extensive livestock or game farming; the land has an inherently low carrying capacity (of animals and hence humans); carrying capacity fluctuates with rainfall; there is a risk of irreversible degradation.
Therefore the capacity of the resource base to continue to sustain the growing population is questionable.
POPULATION OF NAMIBIA
5. The question about population size can now be answered in concrete terms and with a greater measure of confidence than ever before, thanks to the Central Planning Commission, through its Central Statistics Office, which successfully conducted the 1991 Population and Housing Census. This report provides a glimpse at the census results*.
Population Size and Growth
6. According to the census results, in 1991 Namibia had a total population of 1,409,920 made up of 686,327 males (48.7 per cent) and 723, 493 females (51,3 per cent). When the 1991 total population figure is compared with
*Excluding Walvis Bay which was enumerated under the 1991 Population Census of the Republic of South Africa (Population 23,000: Male 14,484; Female 8,516). the records of the censuses held in 1971 and 1981, the evidence is that the population of Namibia has been growing rapidly. This is illustrated as follows
Census Population Annual Growth Year Size Rate (%) 1971 737,497 - 1981 1,033,196 2,89 1991 1,409,920 3,0
7. Most other countries in Africa show similarly high rates of population growth. Out of the 43 African countries with data refered to 1991, 17 countries have growth rates of between 2.0 and 2.9 per cent per annum and 25 countries (including Namibia) exhibit growth rates of between 3.0 and 3.8 per cent. Mauritius has the lowest growth rate of 1.1% per annum.
Some characteristics of Namibia's population
8. Unlike the earlier population censuses during the colonial period, the 1991 first post independence census was simply about numbers; it collected data on some basic social, economic and demographic characteristics of the people and their housing environment. The purpose was to enable the different sectors of the economy and society to better understand the prevailing population issues and thereby formulate appropriate policy and program responses. Information is provided in the following sections on some selected characteristics of the population of Namibia derived from the 1991 census results.
Population Distribution and Density
9. During the 1991 census exercise, 382,680 persons were enumerated in places designated as urban, while 1,027,240 persons were found in rural localities. Given the increasing rural-to urban migration trend, the urbanization of Namibia's population will continue to increase. Table 1 shows the population of the proclaimed Municipalities and major towns as of 1991.
Namibia, Population and Proclaimed Municipalities and major town
Municipality/Town Population 1. Windhoek a) Main 147.059 b) Katutura 41.521 c) Khomasdal 86,639 2. Swakopmund 18,899 3. Gobabis 17,881 4. Grootfontein 8,340 5. Karibib 12,829 6. Karasburg 2.978 7. Mariental 15,032 8. Keetmanshoop 4,602 9. Okahandja 7,581 10. Omaruru 11,040 11. Otavi 3,506 12. Otjiwarongo 15,921 13. Outjo 4,535 14. Tsumeb 16,211 15. Usakos 3,548 16. Henties Bay 1,612 17. Luderitz 7,700 18. Okakarara 3,725 19. Ondangwa 7,916 20. Ongwediva 6,172 21. Opuwo 4,234 22. Oshakati 21,602 23. Rehoboth 21,439 24. Katima Mulilo 13,372 25. Rundu 19,366 26. Khorixas 7,358 27. Arandis 4,303
Source: Central Statistics Office, 1991 Census of Population and Housing, Final Tabulations.
10. Namibia's total population of about 1.4 million is spread over a vast, largely arid, territory of 824,269 sq km , giving the country an average density of about 1.7 persons per sq km, one of the lowest in the world. However, about 70 per cent of the total population live in only five of the 27 census districts (Oshakati/Ondangwa, Caprivi, Windhoek, Kavango and Rehoboth). The distribution of the population by sex, region and rural\urban residence is provided hereunder.
Namibia: Population by sex and region
Region Total Both Sexes Male Female Caprivi 90,422 44,065 46,357 Erongo 55,470 28,939 26,531 Hardap 66,495 33,728 32,767 Karas2 61,162 33,923 27,239 Khomas 167,071 87,706 79,365 Kunene 64,017 32,359 31,658 Ohangwena 179,634 80,165 99,469 Okavango 116,830 55,763 61,067 Omaheke 52,735 22,312 25,423 Omusati 189,919 83,623 106,296 Oshana 134,884 61,544 73,340 Oshikoto 128,745 61,979 66,766 Otjozondju- 102,536 55,221 47,315 pa (All regions) 1,409,920 686,327 723,593
11. One major factor in the spatial distribution of the population is migration which is induced largely by a continuous search for better economic opportunities among able-bodied people. The census in 1991 counted 1,290,527 persons as born and enumerated in Namibia; and out of this total, 280,130 or 21.7 per cent, were enumerated as "usually resident" in districts outside their districts of birth. This gives an impression of the magnitude of internal migratory movements among the in-born population in the country; but more detailed analysis of the census data would reveal the pattern and characteristics.
Age/Sex Structure
12. The sex ratio (i.e.) number of males per 100 females of the total population is 94,47, although there are variations among the districts. The sex ratio is in excess of 100 in the urban areas because more males than females migrate to these centres of population.
13. The age composition of the population can be described as youthful; children aged 0-14 years make up about 42.0 per cent of the total population, while older persons aged 65 years and over constitute barely 4.8 per cent of the total. The preponderance of young persons in the population is a reflection of the high level of fertility, (that is, the rate at which children are being born) while the small numbers surviving to older ages show the effect of high mortality rate (the rate at which people are dying) on the population.
SOCIAL CHARACTERISTICS OF THE POPULATION
Housing and household characteristics
14. Different housing types were identified in the course of 1991 census exercise; but by far the most predominant are the detached and the Kraal or hut. Overall, about 50.4 per cent of the total population were enumerated as living in Kraals or huts, while 32,5 per cent live in detached houses. However, the Kraal is a feature of the rural population, as detached houses are largely fashionable in the cities. About 67 per cent of urban residents were enumerated in detached houses, while close to 74 per cent of rural 10 dwellers lived in huts. Over 70 per cent of the total population rely on paraffin or candle as fuel for lighting and 24 per cent have access to electricity. The rural/urban contrast is striking but predictable: some 64.3 per cent of urban households have access to electricity, compared to only 4.2 per cent of the rural households. In the rural areas also, about 90 per cent of the households rely on paraffin or candle.
15. Access to the supply of potable clean water is critical to health and human survival. Pipe borne water is reported to be available to 98 per cent of the urban population; but in the rural areas, the overwhelming majority (about 75 per cent) rely on wells, boreholes, rivers, canals and lakes for water.
16. In the rural areas also, some 86 per cent of households use the bush as toilet facility, whereas in the urban areas, water closet facilities are used in about 80 per cent of households.
17. Overall, the reported average household size is 5.2 persons; but it is 4.7 in the urban and 5.4 in the rural areas. As shown below, close to 40 per cent of all households are headed by women and this is more so in rural than urban areas. 11
Household Rural Urban Total Head Male 57.1 68.0 60.7 Female 42.9 32.0 39.3 All 100.0 100.0 100.0 Households
Language Groups
18. The major language groups identified during the census are Bushman, Caprivi, Herero, Kavango, Nama/Damara, Ovambo, and Afrikaans. Others are German, English and other European and African languages. The results show that majority (about 50.6 per cent) of Namibians speak the Ovambo languages; followed by Nama/Damara (12.5%), Kavango (8.0%) and Caprivi (4.7%). The remaining 4.6 per cent are speakers of the other languages.
Marital status
19. The question on marital status was directed at males and females aged 15 years and above in the population. Out of the total population of 821,533 in this age category, 409,078 (or about 49,8%) had never been married; in terms of sex distribution, 54.3 per cent of the male and 65,1 per cent of the female population in this age group were never married. About 17 per cent of all marriages had been 12 disrupted by separation, divorce or death of spouse. Of sociological interest is the fairly large proportion of persons not in any union at the older ages. The census data show that 7.0 per cent of males and 14.1 per cent of females aged 40 years and above were not in any marital union in 1991.
Education
20. The census attempted to measure educational performance in the population through questions on literacy and levels of educational attainment. Of the total 998,436 aged 10 years and above enumerated, 76.5 per cent said they were literate (i.e. able to read and write), made up of 77,7 per cent of the male and 75.6 of the female population. Literacy level is as high as 90.0 per cent among urban residents but 69.2 per cent among the rural population.
21. While the overall school attendance ratio is generally high (77,6 per cent participated in the school system), the level of educational attainment is overwhelmingly low. Among all the 459,414 person aged 6 years and above who have records of past school attendance, the levels of educational attainment are distributed as follows:
Some Primary School 173,634 Completed Primary 55,834 13
Some Secondary school 174,931 Completed Secondary school 28,931 Technical/Vocational 11,167 Teacher Training 5,946 University 8,470 Not stated 762 All educational levels 459,414
Disability
22. The census also attempted to measure the nature and extent of permanent disability conditions in the population. Tabulated results show that disability conditions afflicted 43,823 persons, or 3.1 per cent of the total population, in 1991. About 53.5 per cent of all disabled persons were males while 46,5 per cent were females. The overwhelming majority of disabled people (79.3 per cent) resided in the rural areas. When tabulated by age, disability conditions seem to be positively correlated with age, more and more people get afflicted as they grow older.
23. The census identified five major permanent disability conditions within the population: blindness, deafness, impairment of speech, limb impairment and mental disability. Only 431, or about 1.0 per cent of all disability cases referred to conditions outside the major five listed. 14 Impairment of the limbs accounts for most disability cases (35.0%), followed by blindness (30.0%) and mental derangement (16.0%).
Foreigners
24. The census results also indicated that foreign nationals number 49,404 or 3.5 per cent of the total enumerated population. About 87.4 per cent of the foreigners in Namibia are from African countries, mainly from Angola, South Africa and Zambia. Outside Africa, the majority of foreign nationals in the country are from European countries.
ECONOMIC CHARACTERISTICS
25. According to the census records, the working age population, defined as all persons aged 10 years and above, has a total of 998,436, made up of 493,580 persons defined as "economically active", (i.e. those currently employed and those 'actively" looking for gainful employment) and 503,610 identified as "not economically active".
26. For those employed, agriculture is the major pre- occupation; it engages 47,4 per cent of the gainful occupied. Manufacturing is still a minor sector of economic activity employing barely 5.8 per cent of the workers and most of the remaining workers are in administrative and service activities. While males are 15 predominant in mining and quarrying, construction, public administration, defence and social security, women workers dominate the services and, to some extent, education sectors.
27. Out of the 493,580 persons enumerated as economically active, 393,341 (or 79.9 per cent) were actually found working;resulting in an unemployment rate of 20.1 per cent in 1991. Unemployment was almost equally distributed among the male and female labour force; 20.6 per cent of males and 19.0 of females were unemployed. It is striking to note that over 70 per cent of those unemployed are graduated from the primary and junior secondary school system.
28. Labour force participation rate (ratio of active population to the total population) varies by age and sex. The pattern shows a higher activity rate among the males than females, and a generally low level of participation at the younger ages (10-19 years) largely because of schooling. For both sexes the participation rates are highest between ages 25 and 59 years.
DEMOGRAPHIC CHARACTERISTICS
29. The census collected information from women aged 15-49 years (conventionally defined as the childbearing years)on the number of children born within the 12 months preceding the census, and number of children dead. 16 30. Together with the information on the age profile of the population, it is possible to derive indirect estimates of fertility and mortality from the census data.
31. Based on the conventional technique, age specific and total fertility rates are derived from the census data; the estimates from the census data show that the total fertility rate in Namibia in 1991 was 5.7. This implies that, in the count of the • population census, if fertility remained constant at the 1991 levels, a Namibian woman at the completion of childbearing (age 45 - 49 year) would give birth to 5.7 children. Compared to fertility estimates in other parts of the world, the level of fertility in Namibia is among the highest.
32. Based on the census age/sex structure of the population, it is possible to derive indirect estimates of mortality, as well as estimates of life expectancy for each age group in the population. A preliminary analysis has revealed that mortality is fairly low and declining; the crude death rate in Namibia in 1991 was 12 per 1000 population, life expectancy at birth for both sexes was 58.32 years; 60.30 years for females and 56.3 years for males.
33. It is the combination of high birth rate and declining death rate in the population that has given Namibia such a high rate (3.0 per cent) of population growth. It also implies that if the high rate of population growth persists, the population of Namibia, now about 1,5 million, would 17 increase to about 3 million by the year 2015.
Gross National Product and
Size and Structure of the Economy .
34. Estimates put Namibia's Gross Domestic Product (GDP) at US$ 2,106 million in 1992 giving it a per capita income of US$ 1,610. This compares to US$ 2,670 for South Africa, US$ 570 for Zimbabwe and US$ 530 for Sub-Sahara Africa as a whole. Despite prolonged drought in 1991 and 1992 and sustained world and regional economic recession, the Namibian economy has performed better since Independence than at any time since 1980. Between 1990 and 1994, real GDP grew at an average of 3.5% per year (although it fell in 1990) demonstrating Namibia's economy exhibits the classic characteristics of past colonial exploitation where large multinational firms and settler farmers exploit natural resources for export, leaving other sectors largely undeveloped. The large commercial agriculture and mining sectors dominate the small manufacturing sector.
35. The Namibian economy recorded steady annual real gross domestic product (GDP) growth 3,6% for the past five years, inspite of a decline of 1,9% in 1993. The better performance was on account of the moderate recovery in diamond production and increase in fish output. Fish processing, water and electricity also contributed to the 18 1994 real growth. Excluding diamonds, the growth in the other sectors would have resulted in a 4,8% growth in real GDP. Real gross national income expanded by 14,8% in 1994 after receipts from the rest of the world decreased by 1% as share of GDP at current market prices. Real GDP per capita showed a moderate improvement of 2.3% to US$ 1 288.00 when compared with the decline of 4,9% in 1993. Real GDP at market prices grew by 5.5% in 1994, which was responsible for the better performance in real per capita GDP.
36. Namibia's overall balance of payments was provisionally estimated at N$ 2,266 million in 1994, the result of a widened current account surplus of N$ 748 million and a deficit on the capital account of N$440 million. The position of foreign reserves assets improved to N$ 719 million, equivalent to six weeks of merchandise import and non-factor services. The level of foreign assets at December 31, 1994, was N$ 10.5 million compared with foreign liabilities of N$ 8.9 million.
37. Reflecting the positive growth rates in mining and general government output, the Namibian economy showed an expansionary stance during the first quarter of =1995. According to the short-term indicators of real sector development, developed by Research Department of the Bank of Namibia, the economy expanded by 3.8 per cent. The growth in the economy is accounted for by a significant growth rate in mining and general government, 19 which expanded 15 per cent and 1.6 per cent respectively. General government and mining account for 49.7 per cent of GDP. Other significant growth were recorded in transport and communication, retail sales and fishing. Commercial agriculture declined by about 9 per cent, while manufacturing activities slowed down by 6.4 per cent.
Rate of inflation
38. Due to the dominant influence of South African - produced goods in Namibia's imports, and the pegging of the Namibian dollar to the Rand, consumer price inflation remains heavily influenced by that in South Africa. Nevertheless, domestically - produced goods and services have an influence on overall inflation, and Namibia's public sector pay and budget deficit also have an impact on wage and price inflation.
39. The year-on-year inflation rate averaged 9.9% in the first quarter of this year, up from 8.4% in the final quarter of 1993. The faster upward trend in the Windhoek all-items index was largely due to sharp increases in the prices of clothing and footwear (up by 16% on a year earlier) and, to a lesser extent, housing (up by 12% compared with a year earlier). Food price inflation remained relatively subdued, with prices averaging 6.4% more in the first quarter than during the same period last year.
40. Namibia's inflation rate, as measured by annual percentage 20 changes of the interim consumer price index of Windhoek, closely follows that of South Africa. However, during 1994 the increase in general price level in Namibia remained higher than in South Africa. The annual average inflation for Namibia was recorded as 10.7% in 1994 compared with 8,65 in the previous year. The major consumer item influencing the upward trend of the Namibian inflation is food, which accounts for more than 28% of the total consumer basket.
41. Low international inflation together with South Africa's restrictive stance of monetary policy and its downward correction in the price levels of fresh food stuffs because of improved weather conditions, have prompted the overall inflation rate in Namibia (as measured by the consumer price index for Windhoek) to recede slightly from 10.8% per cent in 1994 to 9.9 per cent in 1995. A considerable deceleration in consumer price as regards the indicators of human resources utilization, it is evident that this needs to improve as a matter of urgency to ensure that the talent of the young generation is not wasted. In terms of activity status, the census enumerated 998 436 persons in the working age group (10 years and over), made up of 493 580 (49,4%) defined as economically active , or in the labour force, leaving over 50 per cent of the working age population in the economically inactive category. Out of the economically active population, 99 239 or 20,1 per cent are unemployed. 21 42. The majority of those unemployed, about 74 per cent, are first time job seekers, most of them below 25 years of age but almost equally divided by sex. It is noteworthy that about 71 per cent of the unemployed males and 78 per cent of their female counterparts are products of the primary and junior school system. Equally striking is the emergence of the university graduate unemployment, it is estimated that the underemployment rate could be as high as 41 per cent of the economically active population. Labour force participation rates are generally high, but considerable variations exist between males and females and according to age. Participation in the labour force is very limited among boys and girls below age 15 years, in part because of schooling.
Literacy rate
43. Literacy rate (any language)77.7 Literacy rate, in official language English 49,0
Religion
44. Namibia is a secular state (meaning that there is no official religion for the country). Of the various secular denominations in Namibia it is estimated the 95% belongs to the Christian Faith. The majority of them are either Catholic or Protestant with a few charismatic denominations afloat. 22 External debt
45. Sustainable Economic growth is one of the objectiyes of the government of the Republic of Namibia. In order to realize this objective; the government is intending to lower its fiscal deficit to around 3% of GDP by the year 2000, this implies reducing the public expenditure and avoiding - unnecessary borrowing. A very restrictive approach to all forms of borrowing was applied for two years after independence. Government remains extremely concerned to avoid incurring debt unnecessarily, but recognizes that selective borrowing can play a legitimate role in financing development plans. It is planned that foreign borrowing will be considered for particular projects, where this is consistent with Government's deficit target, if
• the project involves productive investment • the project has high returns on investment. • the borrowing is on grant basis or concessional terms, which facilitate long-term repayment.
The Present Situation
The following section provides an initial overview of the Namibia's current debt situation. The table below provides the external debt of Namibia. 23
Summary of Namibia's external debt (in thousand Namibia Dollars) Balance Balance % of GDP % of GDP Outstanding Outstanding 1995/12/31 1996/01/31 1995/12/31 1996/01/31 Central Govt 474,985 471.074 4,33% 4,29 debt
Source: Ministry of Finance CS-DRMS Report 504 printed on Thursday 15 February 1996. Note: Only external loans included in the report. The report selects only central Government debt.
46. Central Government's debt per GDP which at the end of 1995 was 4,33% dropped slightly to 4,29% at the end of January 1996. Before 1992 the debt of the Government of Namibia was above 12.5%. A shift occurred in 1992 from the foreign debt being wholly a liability of the Bank of Namibia, following the rescheduling arrangements. At the end of 1993, the official external debt was recorded at N$ 459.4 million and by the end of the 1993/94 financial year it amounted to N$488.4 million - this was equivalent to about US$ 134 million. This was 5.58% and 4.76% of GDP respectively. However it is quite clear from the point of view of the country, that this debt transferred to the Bank of Namibia is external and should be included in the total of external debt. If this is done, total debt as at the of 1993/94 amounted to N$ 1,118.4 m or approximately US$ 308 m. Relative to the 1994 GDP total, this indicates an 24 external debt/GDP ratio of 11%.
47. The Ministry of Finance estimated the servicing cost of the debt (principal and interest payments) for the financial year 1995/96, which it is still servicing, to amount to about N$75.9m. This is additional to the payments of N$78,5 m per annum for 17 years from April 1995 against the Bank of Namibia Facility. Bringing the total servicing costs of the official external debt at that time to approximately N$155m. This was only 2.6% of the total exports. Since the end of "no-borrowing policy" in 1992 a number of new Rand as well as hard currency loans have appeared on the books of the Government. However these are concessional loans.
The following table indicates the private external debt for the years 1994 and 1995.
PRIVATE EXTERNAL DEBT IN THOUSANDS OF NAMIBIAN DOLLARS (L) 1994 1995 % of GDP % of GDP 1994 1995 Currency 100170 911989 0.98% 0.84%
Namibia's private external debt with the rest of the world was N$100,17 m and N$92,0m in 1994 and 1995 respectively. This shows a decrease of 8.2 per cent in 1995 from that of 1994. 25 These figures might considerably underestimate the private external debt. At the end of 1993 the private external debt was about 11% of GDP. It is worth noting that the above figures of the private external debt are the total of the private external debt of the following currencies converted to Namibian dollars: Swiss francs, Deutsche marks, US dollars, ECU and Rands. The underestimate of the private external debt can be attributed to the fact that not all private sectors responded to the survey questionnaire by the Bank of Namibia.
48. According to the figures available the total external debt at the end of 1995 was N$56,974 m. This gives a total debt: GDP ratio of 5,2%. A larger share of the private external debt is borrowed in Rands, 76,9% and 74,9% of the total private debt was in Rands for the years 1994 and 1995. It is clear for this type of debt that it carries no foreign exchange risk. Future projections shows a declining foreign private debt, but these projections might not make sense as they do not include future borrowing.
49 It is envisaged that the overall fiscal deficit of 1996/97 will amount to 4.1% of the projected GDP of N$ 13,520m. Only 9% or N$ 50 m of this deficit will be financed by foreign loans which will as in the past take the form of project related loans at highly concessional terms. Therefore one concludes that Namibia has low deficit compared to other Sub-Sahara developing countries. 26 GENERAL POLITICAL STRUCTURE
50. Namibia was called South West Africa before the territory regained its independence on 21 March 1990. The German colonization of the territory began with the hoisting of the German flag at Luderitz Bay in May 1883. Thereafter the inland boundaries of German South West Africa, as the territory was known when it was a German colony, were defined under the Anglo-German Agreement of July 1890. Armed resistance to German colonial rule by the people of Namibia was finally broken in 1907.
51. The outbreak of the First World War in 1914 saw the demise of German colonialism in Namibia in the first year of the War. After the war Namibia was placed under the League of Nations Mandated System as a "C" Mandate. The mandatory power was therefore given full powers of legislation and administration over the territory in accordance with principles laid down in the Covenant of the League of Nations, as well as the mandate agreement. The mandate was given to His Britannic Majesty of Great Britain. The King accepted it but delegated the Mandate to the Government of the Union of South Africa, now Republic of South Africa. Vigorous attempts by South Africa to annex the territory as the fifth province of the Union were thwarted by international pressure.
52. South Africa ruled Namibia under the Mandate from 1920. The General Assembly of the United Nations ins` 1966 27 formally terminated the Mandate and assumed direct legal responsibility, to be exercised by the United Nations Council for Namibia. During South African rule the heinous system of apartheid based on racism and oppression of the black indigenous majority became also the basis of colonial administration in Namibia.
53. In 1966 the broad masses of the Namibian people took up arms under the vanguard of the South West Africa's People's Organisation (SWAPO) in a bitter anti-colonial struggle. With the support of the United Nations and the international community the successful liberation struggle culminated in the regaining of independence on 21 March 1990. Dr Sam Nujoma, leader of SWAPO since its formation, became the new country's first President, becoming both the Head of State and Government.
54. Namibia is a unitary, secular State with a multi-party system of government. It is divided into thirteen administrative Regions. Each region has an elected Regional Council, with a Regional Governor as the regional chief executive. It has an executive presidency system with the President as both the Head of State and Head of government. But executive power is vested in the President and the Cabinet of Ministers. In this way, the presidential system partakes of aspects of both the American presidential system and the British Cabinet system. The Cabinet consists of the President, the Prime Minister (who is the head of government administration) 28 and Ministers.
55. At present there are twenty-three Cabinet members, including of the President (Chairperson), the Prime Ministers and the Attorney-General. The larger ministries have deputy ministers, e.g. the Ministry of Foreign Affairs. All ministers must be members of the National Assembly in which legislative power is vested. It has the power to pass laws with the assent of the President and subject, where applicable in terms of the Constitution, to review by the National Council whose membership of twenty-six consists of two members elected by each of the thirteen Regional Councils. The National Assembly on the 'other hand has seventy-two members elected through the party list method of the Proportional Representation system and up to six non-voting members appointed by the President. Municipal, town and village councils constitute local government. All members of the councils are elected by secret ballot on the basis of the first-past-the -post electoral method. All elective institutions of the State operate upon the basis of multi-partism.
56. The Judicial power of the country is vested in the courts which consist of (a) the Supreme Court, (b) the High court, and (c) Lower Courts. The independence and impartiality of the judiciary are guaranteed by the Constitution. The High Court has unlimited jurisdiction and therefore it is better placed to protect human rights. The Supreme Court has only appeal jurisdiction except when it is called upon 29 by the Attorney-General to determine the constitutionality of an act or law.
GENERAL LEGAL FRAMEWORK WITHIN WHICH HUMAN RIGHTS ARE PROTECTED
57. Namibia has a justiciable Bill of Rights which is incorporated in the Namibian Constitution. Any person who alleges that his or her human rights have been violated or are likely to be violated may seek redress in the High Court. If he or she is dissatisfied with the decision or judgement of the High Court, he or she may appeal therefrom to the Supreme Court. So the Supreme Court has appellate jurisdiction only. But it also has original jurisdiction because it can pronounce on the constitutionality of legislation if the matter is referred to it by the Attorney-General.
58. Apart from judicial protection, there is the Ombudsman who is also empowered to investigate allegations of human rights violations mero motu or after receiving a complaint from an individual. There is also a State-funded legal aid scheme under the Ministry of Justice which offers legal assistance and representation to indigent persons who may wish to seek redress in the courts or before the Ombudsperson for abridgement of their human rights. In this way the Ministry of Justice also plays a useful role in the protection of human rights in Namibia. Finally there is an independent and free legal profession which advises and 30 represents persons seeking redress for alleged human rights violations.
59. An individual may apply to the High Court or the Ombudsman for redress. In a successful application the High Court may make any order aimed at compensating the applicant. The compensation may take the form of payment of damages determined by the court. In addition the High Court may order restitution, so may the Ombudsman.
60. The Bill of Rights, which is incorporated in the Constitution, protects some of the human rights referred to in the various international human rights instruments. For example, the right to life is protected. Flowing from this, the death penalty is totally abolished in Namibia. Personal liberty is protected. Freedom from torture or cruel, inhuman or degrading treatment or punishment is also
protected, so is freedom from slavery and forced ' labour. Right to equality before the law is also protected. Freedom from discrimination based on sex, race, colour, ethnic origin, religion, creed or social or economic status is also protected, so is freedom from arbitrary arrest and detention. The right to a fair trial before an independent and impartial tribunal is also protected. Right to privacy is also protected. Various rights of the child, including the right to education, are also protected. Various fundamental freedoms like freedom of speech, expression, thought, conscience and belief, association and movement are also 31 protected.
61. Some human rights are derogable during a state of national defence or any period when a declaration of emergency under the Constitution is in force. However derogation from or suspension of certain human rights is not permissible. They include the right to life including freedom from the death penalty; freedom from torture or cruel, inhuman or degrading treatment or punishment; freedom from slavery or forced labour; rights to equality before the law; freedom from all forms of discrimination; the right to a fair trial; the various rights of the child; and freedom from speech, expression, thought, conscience and belief, and association.
62. In terms of the Namibian Constitution, international agreements binding upon Namibia under the Constitution form part of the law of Namibia. Thus international instruments to which Namibia is a State Party are generally self-executing. But nothing in law prevents a Ministry sponsoring a piece of legislation on any matter from ensuring that human rights protected under the Constitution or international human rights instruments are taken into consideration when drafting the legislation. This helps to reinforce the country's commitment to the carrying out of relevant provisions of the Bill of Rights or international human rights instruments, or to make implementation easier to monitor and evaluate. 32 63. The Ministry of Justice has final responsibility for the promotion and protection of human rights on behalf of the government. To this end it ensures implementation of human rights. It does so when scrutinizing bills, i.e. draft legislation, to ensure that Bills promote but not violate human rights. The Ministry has in corroboration with the University of Namibia set up the HUMAN RIGHTS AND DOCUMENTATION CENTRE (HRDC), responsible for the promotion and protection of human rights. When it comes to implementing specific human rights referred to in the various international instruments, the Ministry or government agency responsible for the specific items under the instruments are charged with the responsibility of implementing the rights protected.
64. For instance, the Ministry of Justice is responsibie for implementing the right to a fair trial and freedom from torture together with the Ministry of Education, Home Affairs and Defence. The Ministry of Local and Regional
Government and Housing, the Ministry for . Youth and Sport and the Ministry for Basic Education and Culture are responsible for implementing relevant aspects of the rights of the child. The Ministries are assisted in this regard by various governmental and non-governmental agencies and organizations engaged in various socio-economic activities. 33 PART II
THE SUBSTANTIVE RIGHTS RECOGNIZED UNDER RELEVANT ARTICLES
Article 2
65. In the preambular provisions of the Namibian Constitution, the basic human rights and fundamental freedoms contained in the Bill of Rights of the Constitution (Chapter 3) are guaranteed to all persons regardless of race, colour, ethnic origin, sex, religion, creed or social or economic status. Most of these rights are stated in. the African Charter.
66. In addition Article 10(2) of the Constitution provides: " No persons may be discriminated against on the grounds of sex, race, colour, ethnic origin, religion, creed or social or economic status." In order to fortify and practicalize this constitutional provision, racial discrimination has been criminalized by the Racial Discrimination Prohibition Amendment Act, 1991.
67. The main object of this statute is to render criminally punishable certain acts and practices of 'racial discrimination (and apartheid) in relation to, inter alia, public amenities, the provision of goods and services, immovable property, educational and medical institutions, employment, associations, religions services, and the 34 incitement of racial disharmony and victimization. The upshot of the object of the legislation is to ensure enjoyment without discrimination of the rights and freedoms guaranteed to persons and groups by the Constitution.
Article 3
68. The Namibian Constitution guarantees equality before the law. In fact, Article 10(1) of the Constitution rehearses Article 3(1) of the African Charter as it provides that:, `"= All persons shall be equal before the law." There is no national or international record prepared or sponsored by private human rights monitors to indicate that individuals have been denied access to the courts or other tribunals solely on the basis of any of the prohibited grounds under the Constitution or the African Charter. Indeed, one way whereby the right of equality before the law is implemented is that indigent persons can benefit from the State - provided legal aid scheme under the Ministry of Justice for almost free legal assistance and representation. The object of this near-free legal aid scheme is to afford equal opportunity to persons so that a person does not fail to obtain justice or gain access to the courts or other tribunals solely as a result of his or her indigence. 35 Article 4
69. The substantive provisions of Article 4 of the African Charter are stated under Article 6 of the Namibian Constitution. Article 6 provides:
The right to life shall be respected and protected . No law may prescribe death as a competent sentence. No Court or Tribunal shall have the power to impose a sentence of death upon any person. No executions shall take place in Namibia.
70. Indeed, the individual's right to respect and protection of his or her life and to the inviolability of his or her existence as a human being has been carried to its logical limits by totally abolishing the death penalty in Namibia. Thus Namibia as a total abolitionist of the death penalty has implemented to its fullest this basic human right, because the right is not derogable under any circumstance or situation or for any reason.
Article 5
71. The Namibia has taken the appropriate legal measures to implement the substantive provisions of Article 5 of the African Charter. Slavery and forced labour, and other form of servitude are outlawed by the Namibian Constitution. Article 9 provides:
I. No persons shall be held in slavery or servitude. 36 2. No persons shall be required to perform forced labour. 3. For the purposes of' this Article, the expression 'forced labour" shall not include: (a) any labour required in consequence of a sentence or order of a Court; (b) any labour required of persons while lawful detained which, though not required in consequence of a sentence or order of court, is reasonably necessary in the interests of hygiene; (c) any labour required of members of the defence force, the police force and the prison service in pursuance of their duties as such or, in the case of persons who have conscientious objections to serving as members of the defence force, any labour which they are required by law to perform in place of such service; (d) any labour required during any period of public emergency or in the event of any other emergency or calamity which threatens the life and well-being of the community, to the extent that requiring such labour is reasonably justifiable in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation; (e) any labour reasonably required as part of reasonable and normal communal or other civic obligations.
72. Indeed, forced labour has been criminalized by the Labour Act, 1992. Section 108 of the Act provides:
(1) Any person who causes, permits or requires any other person to perform forced labour shall be uilty of an offence and on conviction be liable to t e penalties 37 which may be imposed by the law for abduction. (2) Subject to the provisions of Article 9(3) of the Namibian Constitution, in this section `orced labour" includes - (a) any work or service performed or rendered involuntarily by any person under threat of any penalty, punishment or other harm to be imposed or inflicted upon, or caused to such person by any other person in the event of such first-mentioned person not performing or rendering any such work or service; (b) any work performed by any child under the age of- 18 years of any employee of an employer in terms of any arran ement or scheme in any undertaking who is or any reason required to perform such wor in the interest of such employer; (c) any work per ormed by any person by reason only of the act that such person is for any reason subjected to the control, supervision or jurisdiction of a traditional chief or headman in his or her capacity as such chief of headman.
73. There has not been any case of forced labour prosecuted in the courts since the promulgation of the Act.
74. Similar provisions like those in the second part of Article 5 of the African Charter can be found in the Namibian Constitution. Article 8(2)(b) of the Constitution provides that: "No persons shall be subject to torture or to cruel, inhuman or degrading treatment or punishment." And freedom from torture or cruel, inhuman or degrading treatment or punishment is one of the human rights which are not derogable under Namibian law. 38 75. Although there is no specific domestic law transforming this human right, this right is justiciable and forms part of the laws of Namibia because according to Article 1(6) of the Constitution, the Constitution is "the Supreme Law of Namibia." So any instance of torture is considered as a criminal or a civil wrong attracting criminal or civil proceedings. When it comes to torture, particularly state- - sponsored torture, it is the law enforcement agencies, e.g. the police, that are most in need of control and from whom the individuals must be protected. The Namibian Police has laid down administrative directives aimed at preventing torture from occurring in the police force. These instructions are used as teaching material during training and as a service manual to be used by police personnel.
Article 6
76. The substantive rights contained in Article 6 of the African Charter are also guaranteed to persons by Article 11 of the Namibian Constitution which provides:
(1) No persons shall be subject to arbitrary arrest or detention. (2) No persons who are arrested shall be detained in custody without being informed promptlyin a language they understand of the grounds fog' such arrest. (3) All persons who are arrested and detained in custody shall be brought before the nearest Magistrate or other judicial officer within a period of forty eight (48) hours of their arrest, or if this is not reasonably 39 possible, as soon as possible thereafter, and no such persons shall be detained in custody beyond such period without the authority of a Magistrate or other judicial officer. (4) Nothing contained in Sub-Article (3) hereof shall apply to illegal immigrants held in custody under any law dealing with illegal immigration: provided that such persons shall not be deported from- Namibia unless deportation is authorised by a Tribunal empowered by law to give such authority. No persons who have been arrested and held in (5) custody as illegal immigrants shall be denied the right to consult confidentially legal practitioners of their choice, and there shall be no interference with this right except such as is in accordance with the law and is necessary in a democratic society in the interest of national security or for public safety.
77. Persons who alleged that any of the rights guaranteed to them by Article 11 of the Constitution has been or is about to be violated may seek redress in the courts or complain to the Ombudsman for protection. There have been occasional problems brought about by financial and logistical constraints, as well as the paucity of magistrates' courts, particularly in the distant parts of the country, with regard to compliance with the 48-hour rule contained in the above-quoted Article 12(3) of the Namibian Constitution. But since independence, the Ministry of Justice has pursued vigorously and consistently a policy of ensuring that justice is brought to the people. To this end, and appreciable number of magistrates' courts have been established in many areas of the country, particularly those 40 which were hitherto denied this service in the colonial period.
Article 7
78. All the substantive rights guaranteed by Article 7 the African Charter are also guaranteed by the Namibian Constitution. Article 12 provides:
1. (a) In the determination of their civil rights and obligations or any criminal charges against them, all persons shall be entitled to a fair and public hearing by an independent, impartial and competent Court or Tribunal established by law: provided that such Court or Tribunal may exclude the press and/or the public from all or any part of the trial for reasons of morals, public order or national security, as is necessary in a democratic society. (b) A trial referred to in Sub-Article (a) hereof shall takeplace within a reasonable time, failing which the accused shall be released. • (c) Judgements in criminal cases shall be giVen in public, except where the interests of juvenile persons or morals otherwise require. (d) All persons charged with an offence shall be presumed innocent until proven guilty according to law, after having had the opportunity of calling witnesses and cross-examining those called-against them. (e) All persons shall be afforded adequate time and facilities for the preparation and presentation of their defence, before the commencement of and during their trial, and shall be entitled to be 41 defended by a legal practitioner of their choice. No persons shall be compelled to give testimony against themselves or their spouses, who shall include partners in a marriage by customary law, and no Court shall admit in evidence against such persons testimony which has been o tainedfrom such persons in violation of V-- Article 8(2)(b) hereof (2) No persons shall be liable to be tried, convicted or punished again for any criminal offence for which they have already been convicted or acquitted according to law: provided that nothing in this Sub- Article shall be construed as changing the provisions of thecommon law defences of previous acquittal" and previous conviction . (3) No persons shall be tried or convicted for any criminal offence or on account of any act or omission which did not constitute a criminal offence at the time when it was committed, nor shall a penalty be imposed exceeding that which was applicable at the time when the offence was committed.
79. These rights which have been translated into rules of court in both civil and criminal proceedings are protected by the courts whose independence and impartiality have been given constitutional protection by the Namibian Constitution. Article 79 of the Constitution provides:
No member of the Cabinet or the Legislature or any other person shall interI ere with Judges or judicial officers in the exercise of their judiciarfunctions, and all organs of the State s all accord such assistance as the Courts may require to protect their independence, dignity and effectiveness, subject to the terms of this Constitution or any other law.
80. Various enabling statutes and rules and regulations made 42 thereunder together with rules of the common law are enforced by the courts and other tribunals so as to give practical meaning to the rights guaranteed under the above- quoted provisions of Article 12 of the Namibian Constitution. The statutes are the High Court Act, 1990, and Rules of Court made thereunder; the Supreme Court Act, 1990, and Rules of Court make thereunder; the Magistrates' Court Act, 1944, and regulations made thereunder; and the Criminal Procedure Act, 1977. The statutory provisions under the above-mentioned statutes and regulations and rules are reinforced by common law rules of evidence.
81. The constitutional and other statutory provisions and the common law rules are adequate to protect the rights adumbrated under Article 12 of the Constitution. The above-mentioned provisions are adequate and effective to enable individuals to obtain remedies for any violation of the right to fair trial, even against the State and its agents and agencies. Apart from the state-sponsored legal aid scheme, individuals have an independent legal profession to turn to for legal advice and representation.
Article 8
82. The fundamental freedoms protected by Article 8 of the African Charter are also protected by the Namibian Constitution. Article 21 (1)(b) of the Constitution provides that : " All persons shall have the right to freedom of 43 thought, conscience and belief, which shall include academic freedom in institutions of higher learning". And Article 21(1)(c) provides that: "All persons shall have the right to freedom to practise any religion and to manifest such practice." The above-mentioned rights, and some specified others, may be derogated from under the Constitution. The exclusive justificatory limits to the enjoyment of those rights are provided for by the Constitution. Article 21(2) provides:
The fundamental freedoms referred to in Sub-Article ereof shall be exercised subject to the law of amibia, in so far as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by the said Sub-Article, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
83. Individuals are free, subject only to the Constitution and any law, to study for a profession and to practise their profession, and also to form professional associations. For instance, legal practitioners are free to practise their profession, and have been grouped together into the Law Society of Namibia under the Legal Practitioners Act, 1995, so as to protect their interests and promote the objects of the Society. The Act provides as follows-:
40. There is hereby established the Law Society of Namibia which shall by that name be a body 44 corporate with perpetual succession and a common seal, and which shall be capable of suing and being sued and, subject to the provisions of this Act, do and suffer all such acts and things as bodies corporate may lawfully do and suffer.
41. The objects of the Law Society shall be-
(a) to maintain and enhance the standards of conduct and integrity of all members of the legal profession; (b) to present the views of the legal profession; (c) to further the development of law as an instrument of social engineering and social justice; (d) to encourage and promote efficiency. in and responsibility in relation to the profession; (e) to promote the education of lawyers at all stages and levels, with particular emphasis on the broadening of such education; to make recommendations to interested parties in relation to the training of lawyers; to define and enforce correct and uniform (g) practice and discipline among members; (h) to give all necessary assistance to the effective implementation of any legal aid scheme established and governed by or under any law; (i) to promote social intercourse among members: to consider and deal with all matters affecting the professional interest of members; 45 (k) to co-operate with the representative bodies of other professional bodies; (1) to promote applied research in the development of-the law and participate in the reform of the law by the Government and other agencies; (m) to seek the enhancement of the Rule of Law and promote the protection of human rights; (n) to represent, protect and assist members with regard to their conditions of practice and related matters.
84. Freedom of religion is also a right with clearly laid down justificatory limits in terms of the above-quoted provisions of Article 78(3) of the Namibia Constitution. In the same way persons may freely exercise their thought and conscience and propagate their beliefs and views within limits set by the Constitution and the law. Such exercise of thought and conscience should not offend against, for example, the Prohibition of Racial Discrimination Act referred to in paragraph 66 above.
Article 9
85. Article 9 of the African Charter provides for freedom of expression. This right is ensured by Article 21(1)(a) of the Namibian Constitution which states that 'all persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media'. Article 13 of the Namibian Constitution also states that 'no person shall be subject to interference with the privacy of 46 their homes, correspondence or communications save as in accordance with law and as is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others'.
Article 10
86. The substantive right protected under Article 10 of the African Charter is guaranteed to individuals and groups by the Namibian Constitution. Article 21(1)(e) of the Constitution provides:
"All persons shall have the right to freedom of association, which shall include freedom to form and join associations or unions, including trade unions and political parties. The enjoyment of this right is limited only by express language contained in the provisions of Article 21(2) of the Constitution. The provision are quoted in paragraph 82 above.
87. Thus in Namibia a person's right to form or belong to any lawful association is protected by the Constitution. For instance , a persons is free to form or belong to a trade union of his/her choice. Indeed, it is a part of the principles of state policy expressed in the Namibian Constitution that-
The State shall actively promote and maintain the welfare of the people by adopting, inter alia, policies 47 aimed at the following: c) active encouragement of the formation of independent trade unions to protect workers' rights and interests,...
88. The Labour Act (Act No.6 of 1992), 1992, facilitates the registration of trade unions. Section 54(1) of the Act provides:"Any trade union or employers' organization may apply for registration to the Labour Commissioner in such form as may be determined by the Commissioner."
89. If an application for registration of a trade union or employers' organizaton made in terms of the above-quoted section 54(1) is refused by the Labour Commissioner, the aggrieved trade union or employers' organization may appeal against the Commissioners' decision to the Labour Court which is presided over by a high court judge, who may be assisted by assessors nominated by trade unions and employers organizations.
90. By the same token, individuals are free to form or belong to any political parties if they so wish. This right is limited only by the Constitution. So the practice of multi-partism in Namibia right from its birth has its basis in the basic human right of Namibians to form or belong to political parties of their choice. Just as the Labour Act regulates the registration of trade unions so does the Electoral Act (Act No.24 of 1992), 1992 regulate the registration of political parties. Section 39(1) provides that:"The (Electoral) 48 Commission shall on the written application in the prescribed form of a political party, direct the Director (of Elections) to register it as a political party...."
91. The individuals' right to participate in the government and politics of Namibia is guaranteed by the Constitution. Article 17 of the Namibian Constitution provides -
I. All citizen shall have the right to participate in peaceful political activity intended to influence the composition and policies of the Government. All citizens shall have the right to form and join political parties and, subject to such qualifications prescribed by law as are necessary in a democratic society, to participate in the conduct ofpublic affairs, whether directly or through freely chosen representatives. 2) Every citizen who has reached the age of eighteen (18) years shall have the right to vote and who has reached the age of tweny-one (21) years to be elected to public office, unless otherwise provided herein. 3) The rights guaranteed by Sub-Article (2) hereof may only be abrogated, suspended or be impinged upon by Parliament in respect of specified categories of persons on such rounds of infirmity or on such grounds ofpublic interest or morality as are necessary in a democratic society.
92. The Electoral Act lays down certain requirements that a political party must meet before being registered. The act makes provision for a system of appeal where the Commission rejects an application for registration of a political party. Secton 45 provides: 49 (1) Any political party which is aggrieved by a decision of the Commission in connection with its application or registration, or its cancellation under the provisions of section 41(b) as a political party, may within 30 days after the political party has been notified of the said decision, appeal against that decision by way of application on notice of motion to the court. The court shall enquire into and consider the matter and may confirm or set aside the decision of the Commission, and may make such order as to costs as it may deem fit. Any judgement given or order made by the court in terms of subsection (2), shall be subject to appeal to the Supreme Court ofNamibia on the same conditions as if it were a judgement given or order made in a civil proceeding in the court.
Article 11
93. The right to assemble is protected under Namibia's Constitutional Bill of Rights. Article 21(1)(d) provides:"All persons shall have the right to assemble peaceably and without arms. Like the right to freedom to practice any religion the right to freedom of association and the right to freedom of thought and conscience, the enjoyment of the right to assemble is subject to the provision of Article 21(2), quoted in paragraph above.
94. As stated in that paragraph Article 21(2) states the exclusive justificatory criteria - outside the fact that no arms should be carried during the assembling - against which limitations on those rights, including the right to 50 assemble, must be measured. In this connection, public gatherings are regulated by Public Gatherings Proclamation, 1989 (AG No. 23 of 1989). Section 2 provides:
Subject to subsections (3) and (4), no person shall hold, preside or otherwise officiate at, or address a public gathering unless he, or another person, has given notice in writing to the commander of the police station nearest to the place where the gathering is to be held of - (a) the place and time at which the gathering is to be held; (b) the nature of the gathering; (c) the person or organisation by or in the name, on behaU. or in the interests of whom or which the gathering is to be held; and (d) the names and addresses of the person who will preside and otherwise officiate at and address the gathering.
Article 12
95. The substative rights contained in Article 12 of the African Charter are guaranteed to persons under Article 21(1)(g)- (I) of the Constitution: 51 All persons shall have the right to- move freely throughout Namibia; reside and settle in any part of Namibia; leave and return to Namibia.
96. The enjoyment of this right like the enjoyment of those referred to in paragraph 94 above, is subject to the same constitutional limitations that are mentioned in that paragraph. Namibia is fulfilling its international obligations under both the United Nations Charter and the Charter of the OAU with regard to the acceptance and protection of refugees or asylum seekers within its borders. In terms of the law no person may be expelled from Namibia unless such explusion or removal from Namibia has been authorized by an immigration tribunal. Section 43(1) of the Immigration Control Act, Act No 7 of 1993, provides-
For the purposes of the provisions of Article 1 44) of the Namibian Constitution, the Minister shall establish so many tribunals to be known as immigration tribunals as the Minister may deem desirable for the hearing and determination of applications for authorisation for the removal of persons from Namibia in terms of this Act or any other law.
97. And Article 11(4) in the relevant part provides that an
illegal immigrant in Namibia "shall not , be deported from Namibia unless deportation is authorised by a Tribunal empowered by law to give such authority". The tribunal will take into accout all relevant facts including the 52 likelihood of the person to be deported being tortured in the country to which he or she may be expelled. If there is this likehood, then the person will be referred to the agency responsible for refugees to determine whether such a person should be given refugee status. This agency usually seeks advice from the Ministry of Foreign Affairs and the United Nations High Commissioner for Refugees's office in Windhoek, Namibia. Namibia has yet to enact a law dealing with refugees, although Namibia provides asylum to a considerable number of persons, particularly Angolans.
98. In the experience of the Legal Assistance Centre (LAC, a non-governmental human rights organization based in Windhoek which also provides free legal assistance and representation to deserving persons), the immigration tribunal deals with approximately 50 to 130 cases in one
- sitting. The immigration authorities usually respect the status of refugees, although the LAC is aware of a recent case in which an Angolan refugee was deported to Angola. The LAC is of the view that in that case it is unlikely that a claim for refugees status before the immigration tribunal would be seriously considered by it. Failure to apply for refugee status at a very early stage counts heavily against an asylum seeker and he or she is likely to be returned to his or her country of origin, unless legally assisted. In a case dealt with by the LAC at the beginning of 1996, the Ministry of Home Affairs refused to consider an application for refugee status by a Nigerian national, allegedly because he had remained in Namibia illegally 53 after his temporary residence permit expired. The Ministry only undertook to consider his applicatin after application was made to the High Court.
99. The Minister of Home Affairs may set aside a decision by an immigration tribunal to authorise the explusion of a person from Namibia. The tribunal may of its own motion, and shall at the request of the applicant, reserve for the decision of the High Court any question of law which arises upon an application heard by the tribunal. If the applicant or the Chief Immigration officer is aggrieved by a decision of the High Court , he or she may appeal to the Supreme Court.
100 A person is entitled to legal representation during the hearing of his or her case by the tribunal or during an appeal in the High Court. An indigent person may apply for and receive legal assistance and representation from the Legal Aid Department of the Ministry of Justice or from the LAC.
Article 13
101 Namibia has a multi-party system of government. Therefore all citizens have the right to participate freely in all governmental structures directly or through their freely elected representatives - at the national, regional and local government levels. Such elections are conducted in terms of the Namibian Constitution and the Electoral Act, 1992 54 (Act No. 24 of 1992). There is an independent Electoral Commission established in terms of section 3 of the Electoral Act which has the "exclusive authority to direct, supervise and control in a fair and impartial manner any elections under this act." In terms of section 5 of the Act, the Commission consists of -
(a) ajudge or formerjudge ofthe Supreme Court or the high Court who shall be the chairperson of of the Commission; and (b) four persons as the other members, of the Commission, appointed by the President, with the approval, by resolution, of the National Assembly.
102 In Namibia every citizen, subject to the law, has an equal access to the public service. Considering the colonial history of the country during which time the policy and the law of the colonial, occupying power were systematically aimed at disadvantaging the majority black population, the framers of the Namibian Constitution saw it fit not only to condemn racism and apartheid, the controlling ideology of the South African racist, colonial regime, but to attempt to correct some of the wrongs of the past. To this end, Parliament has been empowered by the Constitution to promulgate an affirmative action legislation aimed at achieving a balanced structuring of the personnel establishment of the public service, including the police, the defence force and the prison service. Article 23 provides that: 55 (2) Nothing contained in Article 10 (see paragraph 6 above) hereof shall prevent Parliament from enacting legislation providint directly or indirectly for the advancement of persons within Namibia who have been social y, economically or educationally disadvantaged by past discriminatory laws or practices, or for the implementation of policies and programmes aimed at redressing social, economic or educational imbalances in the Namibian society arising out of past discriminatory laws or practices, or for achieving a balanced structuring of the public service, the police force, the defencede force, and the prison service. (3) In the enactment of legislation and the application of any policies and practices contemplated by Sub-Article (2) hereof, it shall be permissible to have regard to the fact that women in Namibia have traditionally suffered special discrimination and that the need to be encouraged and enabled to play a full, equal and effective role in the political, social, economic and cultural life of the nation.
103 The constitutional provision promotes affirmative action in general terms. This has the danger of leaving the interpretation of the constitutional provision to the whims of individual employers and other key players. Such a situation will in turn tend to engender arbitrariness and breaches of human rights. To avoid these pitfalls, the Ministry of Labour and Human Resources Development is preparing an affirmative action Bill which will be tabled before Parliament shortly pursuant to the constitutional directive. In the absence of such legislation, the public service has in any case been pursuing an affirmative action programme upon the authority of the above - quoted 56 constitutional stipulation. It is hoped that incoming legislation will achieve some measure of certainty and clarity in the implementation of affirmative programmes.
1.04 The right of access to public property and social services and amenities contained in subarticle 3 of Article 13 of the African Charter is guaranteed to individuals by the anti- , discrimination provisions of the Namibian Constitution quoted in paragraph 65 above and the anti-discrimination legislation referred to in paragraph 66 above.
105 The Racial Discrimination Prohibition Amendment Act, 1991 (Act No. 26 of 1991), was passed so as to render criminally punishable, in pursuance of the Namibian Constitution, certain acts and practices of racial discrimination in relation to, inter alia, public amenities, the provision of goods and services, and immovable property. This law was passed to cure the mischief of the colonial period where in terms of government policy and law certain sections of the Namibian society were denied equal access to public property and services contrary to equality of all persons before the law. Section 2 of the Act provides:
2. (1) no person shall- (a) deny any other person access to or the use of any public amenity or any facility in a public amenity; (b) permit any other erson such access or use on less favourable terms or 57 conditions than those upon which he or she would otherwise permit such access or use; or (c) require any other person to leave or cease to use any such amenity or facility, because such other person is a member of a particular racial group. (2) No person shall in respectof any public amenity apply any practice or policy whereby any facility or service available at such public amenity is provided to members of thepublic on a segregated basis according to colour, race, nationality or ethnic or national origin. (3) For the purposes ,of subsections(1) and (2), "public amenity' means - (a) any public accommodation establishment, including any hotel, uest-house pension, rest camp, guest arm, holiday farm, caravan park or anyf other premises in or upon which accommodation is normally available for and provided to members of the public; (b) any public recreation area, including any game park nature reserve, tourist recreation area, holiday resort or any other similar area to which members of the public normally have access or may obtain admission either free of charge or against payment of a fee; (c) any public restaurant, including any refreshment room, tea room or other premises in or upon which food or drink (whether alcoholic or not) for consumption on the premises is normally provided to members of the 58 public; (d) any public conveyance which members of the public are normally entitled or allowed to use for travelling, whether by air, rail, road or sea; (e) any threatre or other premises where a dramatic performance, play, concert or film is presented or shown to members of the public; any premises where an exhibition, sports meeting or any function is held or may event takes place which members of the public have been invited or are normally allowed to attend
Article 14
106 The substantive right , protected by Article 14 of the African Charter is guaranteed to individuals and associations. But this right is derogable under the Namibian Bill of Rights as it is under the African Charter. Article 16 of the Constitution provides:
(1) All persons shall have the right in any part of Namibia to acquire own and dispose of all forms of immovable and movable property individually or in association with others and to bequeath their property to their heirs or legatees: provided that Parliament may by legislation prohibit or regulate as it deems expedient the right to acquire .property by persons who are not Namibian citizens. (2) The State or a competent body or organ authorised by law may expropriate propety in 59 the public interest subject to the payment of just compensation, in accordance with requirements and- procedures to be determined by Act of Parliament.
107 As Article 16(2) provides that, the "State may expropriate property in the public interest subject to the payment of just compensation." Pursuant to this constitutional provision, Parliament has passed the Agricultural (Commercial) Land Reform Act, 1995 (Act No 6 of 1995), to regulate the expropriation of privately owned land. Section 14 provides:
(1) Subject to subsection (2), the Minister ma =out of moneys appropriated by Parliament or the purpose, acquire, in accordance with the provisions of this Act, agricultural land in order to make such land available for agricultural purposes to Namibian Citizens who do not own or otherwise have the use of agricultural land or adequate agricultural land, and foremost to those Namibian citizens who have been socially, economically or educationally disadvantaged by past discriminatory laws or practices. (2) The Minister shall under subsection (1) be competent to acquire - (a) any agricultural land offered.for sale to the Minister in terms of section 17(4); - (b) any agricultural land classified as under- utilised and in terms of subsection (3); (c) any agricultural land or portion or portions of such land classified as excessive land in terms of subsection (3); or (d) any agricultural land acquired by a foreign 60 national, or by a nominee owner on behalf or in the interest of a foreign national, in contravention of section 58 or 59.
108 In terms of the provisions of Artile 16(1) of the Namibian Constitution, Parliament has passed the Agricultural (Commercial) Land Reform Act, 1995 (Act No. 6 of 1995) to deal with the issue of foreign ownership of agricultural land in Namibia. Section 58 of the Act provides:
Notwithstanding anything to the contrary 07 any (1) other law contained, but subject to subsection (2) and section 62, no foreign national shall, after the date of commencement of this Part, without the prior written consent oft e Minister, be competent- (a) to acquire agricultural land thourgh the registration of transfer of ownership in the deeds registry; or (b) to enter into an agreement with any other person whereby any right to the occupation or possession of agricultural land or a portion of such land is conferred upon the foreign national- (i) for a period exceeding 10 years; or (ii) for an indefinite eriod or for a fixed period of less than 10 years, but which is renewable from time to time, and without it being condition of such agreement that theright of occupation or possession of the land concerned shall not exceed a period of 10 years in total. (2) if at any time after the commencement of this 61 Part the controlling interest in any company or close corporation which is the owner of agricultural land passes to any _foreign national, it shall be deemed, for the purposes of' subsection (1)(a), that such company or close corporation acquired the agricultural land in question on the date on which the controlling interest so passed. (3) The provisions of subsection (1) shall not apply in respect of the registration in the deeds registry, at any time during a period of 60 days following the date of commencement of this Part, or such extended period as the Minister in any particular case may allow, of any agricultural land in the name of a foreign national where such registration is affected pursuant to an agreement or any other written instrument duly made and entered into before the date of commencement of this Part.
109 The restriction on the acquisition of agricultural land by foreign nationals does not apply to the acquisition of agricultural land by a foreign national-
(a) by virtue of any succession ab intestato or testamentary disposition; (b) which is a public company conducting business as a banking institution as defined in section 1 of the Banks Act, 1965 (Act 23 of 1965); or (c) which is a company of which the shares are listed on a licensed stock exchange in Namibia as defined in Section 1 of the Stock Exchanges Control Act, 1985 (Act 1 of 1985).
110 There is however no restriction on the acquisition of dwelling houses by foreign nationals. Indeed, many foreign nationals have acquired dwelling houses in 62 Namibia, in most cases through credit granted by the Namibian Government, financial institutions and building societies. And their right to their property is guaranteed by the Constitution and other laws.
Article 15
111 Apart from Articles 9 and 21(1)(e) of the Namibian Constitution, the Namibian National Policy on Labour and Manpower Development (Annex 1), adopted by the Cabinet on 31 July 1990, outlaws "all forms of discriminatory practices.., unfair labour practices and the general exploitation of workers...". The discriminatory practices and unfair labour practices include unequal pay for equal work. To ensure that employees do enjoy fair and satisfactory conditions of service, the National Policy puts an emphasis on the right to freedom of association for the purpose of bargaining collectively for better conditions of service with employers.
112 To strengthen its National Policy on Labour, the Government prepared a labour code which was enacted by Parliament in 1992, i.e. the Labour Act, (Act 6 of 1992).
Section 107 of the Labour Act prohibits discrimination in employment by virtue of sex ..., race..., colour or economic status. Discrimination whether in recruitment procedures or pay structure for equal job is forbidden in Namibia. In order to demonstrate its commitment and seriousness with 63 the regard to the idea of equal right to work, the Government has prepared a Bill on Affirmative Action and Equal Opportunity in Employment. The aim is to give further effect on the Constitutional, National Policy and Labour Act provisions which are aimed at promoting individual rights at work place or in employment and occupation.
Section 107, subsection 3 says:
"For the purpose of the provision of subsection (1) a person shall be regarded to have been or about to be unfairly discriminated against on the ground of sex, if in terms of any term and condition contained in contract of employment entered into with an employer such person is by virtue of his or her employment entitled to any condition of employment which is less favourable than any condition of employment to which any other person of the opposite sex is entitled for work of equal value".
113 Finally, the Labour Act in an effort to provide fair and satisfactory conditions of service, regulates minimum conditions of employment applicable to all employees in Namibia, with an exception to a certain extent to the Defence and Police Force. 64 Article 16
114 Whereas article 16 of the African Charter refers to the protection of health, article 6 of the Namibian Constitution provides for the protection of life and states :
`The right to life shall be respected and protected'
As regard the children at article 15(c) of the Constitution states that:
`Children are entitled to be protected from economic exploitation and shall not be employed in or required to perform work that is likely to be hazardous or to interfer with their education or to be harmful to their health or physical, mental, spritual, moral or social development.'
Article 17
115 The reference to the right to education in the African Charter finds resonance in article 20(1)-(3) of the Constitution of Namibia which states -
1) All persons shall have the right to education
2) Primary education shall be compulsory and the State shall provide reasonable facilities to render effective this right for every resident within Namibia, by ,se
65 establishing and maintaining state schools at which primary education will be provided free of charge
3) Children shall not be allowed to leave school until they have completed their primary education or have attained the age of sixteen (16) year, whichever is the sooner, save in so far as this may be authorised by act of parliament on grounds of health or other considerations pertaining to the public interest.
Article 18
116 The obligations cast on the State and the substantive rights protected by Article 18 of the African Charter are also contained in the Namibian Constitution. According to Article 14(3) of the Constitutional Bill of Rights, the "family is the natural and fundamental group unit of society and is entitled to protection by society and the State".
117 Children's rights are protected by the Namibian Constitution. Article 15 of the Constitution provides:
1). Children shall have the right from birth to a name, the right to acquire a nationality and subject to legislation enacted in the best interests of children, as far as possible the right to know and be cared for by their parents. 2) Children are entitled to be protected from economic exploitation and shall not be employed in or required 66 to per orm work that is likely to be hazardous or to inter ere with their education, or to be harmful to their health or physical, mental, spiritual, moral or social development. For the purposes of the Sub- Article children shall be persons under the age of sixteen (16) years. 3) No children under the age offourteen(14) years shall be employed to work in any factory or mine, save under conditions and circumstances regulated by Act of Parliament. Nothing in this sub-Article shall be construed as derogating in any way from Sub-Article (2) hereof 4) Any arrangement or scheme employed on any farm or other undertaking, the object or effect of which is to compel the minor children of an employee to work for or in the interest of the employer of such employee, shall for the purposes of Article 9 hereof be deemed to constitute an arrangement or scheme to compel the performance of forced labour. 5) No law authorising preventive detention shall permit children under the age of sixteen(1 6) years to be detained.
118 Indeed, Namibia is a State party to the United Nations Convention on the Rights of the Child, and has endeavoured to implement the rights protected by the Convention. Namibia's efforts at implementing the Convention are contained in the initial report submitted to the UN Human Rights Commission in December 1992 (Annex 2).
119 The outlaw of any form of discrimination against women is contained in the Namibian Constitution. In terms of Article 10(2) of the Constitution, "No persons may be discriminated against on the grounds of sex...". This is 67 meant to prohibit all forms of discrimination against women. One way in which this provision has been implemented is the promulgation of the Married Person Equality Act, 1996(Act No. 1 of 1996) (Annex 3). The main object of this legislation was to do away with certain discriminatory laws and practices against married women in Namibia.
120 It is important to note also that Namibia is a State party to the United Nations Convention on the Elimination of All Forms of Racial Discrimination against Women. Namibia has presented its report on measures taken to implement the Convention Article 19
121 As pronounced in the second preambular clause of the Namibian Constitution the rights guaranteed by the constitutional Bill of Rights are extended to all persons regardless of inter alia, race, colour or ethnic origin. The idea of the superiority of the white race over the black majority of the Namibian society, as a direct result of the practicalization of the ideology of apartheid of the occupying South African regime, was eschewed at independence. The State considers all Namibians as one people belonging to one nation. As has been emphasized passim in the present Report, racial discrimination by the Government and its agencies and private persons or institutions has been prohibited and criminalized by the Racial Discrimination Prohibition Amendment Act. There 68 is therefore no question of the domination of one section of the Namibian society over the other. There will neither be a legal nor political support for such a retrogressive scheme.
Article 20
122 The people of Namibia exprienced 105 years of colonial rule. After a lengthy liberation struggle the country conducted its first 'free and fair elections' under the supervision of the United Nations from 7-11 November 1989.
Article 1 of the Namibian Constitution states that all power is vested in the people of Namibia, who exercise their sovereignity through the democratic institutions of the State.
123 The Electoral Act of 1992 (Act 24), as amended by the Electoral Amendment Act of 1994 (Act 23) reformed and restructured the previous unfair arrangements and translated to the ballot box, through the democratic process the provisions of Article 1 of the Constitution. 69 Article 21
124 The State is ultimately the custodian of Namibia's mineral and energy resources. The State therefore facilitates the orderly development of Namibia's resources through the Ministry of Mines and Energy. The Government ensures that the nation benefits directly or indirectly from the expolitation of mineral and energy resources.
125 The Government does not directly participate in either exploration or mining activities, except its part ownership and control of NAMDEB, a diamond company in Namibia. The Government has promulgated the Minerals' (Prospecting and Mining) Act, 1992 (Act No.33 of 1992). The Act provides for the reconnaissance, prospecting and mining and disposal of, and the exercise of control over, minerals in Namibia.
Article 22
126 The concerns of article 22 of the African Charter relate to economic, social and cultural rights as well as the right to development. On the 8th April 1992 the National Assembly promulgated the Labour Act to safeguaid the conditions of employment of employees in Namibia. Amongst other matters this act prevents and remedies any unfair dismissal of and unfair disciplinary actions against employees The act regulates the termination of contracts 70 of employment and provides for the registration of trade unions and employer's organisations.
127 A draft Affirmative Action bill is ready for Parliament which levels the playing fields in the area of employment for all segments of society and creates an equitable situation for labour in general, removing previous discriminatory arrangements.
128 Article 19 of the Constitution of Namibia secures rights to culture and states-
Every person shall be entitled to enjoy, practise, profess, maintain and provide any culture, language, tradition or religion subject to the terms of this Constitution and further subject to the condition that the rights protected by this article do not impinge upon the rights or the national interest.
129 Namibia's small population occupies a large land mass and spatial population distribution could affect rights. A case in point is the Khoi-San population (otherwise known as the Bushmen). Government has given substantial resources to this community in the form of clinics, schools and other development assistance, likewise it supports the Ovahimba people.
130 Concerning land rights, on the 3rd March 1995 the Namibia Parliament passed the Agricultural (commercial) 71 Land Reform Act providing for the acquisition, by the State, of agricultural land for the purpose of land reform, primarily for the benefit of citizens formally socially, economically and educationally disadvantaged. So far land has been acquired by the government from commercial farmers on the principle of willing seller willing buyer. Currently a flexible land registration and tenure system is being discussed with the stakeholders. This system will bring secure land ownership titles nationwide by means of effective land title registration.
Article 23
131 As a result of its membership of the OAU and the United Nations, Namibia is fully committed to the principles enshrined in the African Charter and affirmed by both the Charter of the OAU and the Charter of the United Nations.
132 The goals of the Ministry of Foreign Affairs which is responsible for the management of Namibia's foreign policy are as follows -
a) to establish and maintain stable and good neighbourly relations with states around the Republic of Namibia.
b) to promote world peace and security and the settlement of all international disputes by negotiations, not war. 72 133 It is therefore in fulfilment of the policy referred to in paragraph 132 that Namibia has signed or acceded to the following international instruments:
1. African Nuclear - Weapon Free Zone y Treaty (Pelindaba Treaty). 2. Comprehensive Nuclear Test Ban Treaty. 3. The United Nations Conventions on Chemical Weapons: The Prohibition of Development, Production, Stockpiling and use and their Destruction.
134 Indeed, the major principles mentioned in the African Charter form a part of the Principles of State Policy under Article 96 and Article 97 of the Namibian Constitution as follows
Article 96 of the Constitution: Foreign Relations
The State shall endeavour to ensure that in its international relations it: a) adopts and maintains a policy of non-alignment; b) promotes international co-operation, peace and security; c) creates and maintains just and mutually beneficial relations among nations; 73 d) fosters respect for international law and treaty obligations; e) encourages the settlement of international disputes by peaceful means.
Article 97 of the Constitution: Asylum
The State shall, where it is reasonable to do so, grant aylum to persons who reasonably fear persecution on the ground of their political beliefs, race, religion or membership of a particular social group.
Article 24
135 Together with the establishment in 1992 of the Directorate of Environmental Affairs, the name of the Ministry of Wildlife, Conservation and Tourism was change to the Ministry of Environment and Tourism.
Currently the Ministry of Environment and Tourism is implementing the following programmes:-
1. Biodiversity. A country study is being worked on to compile a national resource map.
2. Community based natural resource management. This is aimed at improving the lives of the rural population through the sustainable use of renewable natural resources, and seeks to maintain biodiversity outside 74 of protected areas.
3. Environmental impact assessment. A national policy was adopted in 1994 and legislation to implement it is being formulated to determine all major future developments at projet, programme and policy levels.
4. Environmental profiles are being elaborated for each region of the country and will be published in book form.
5. Environmental legislation. All environmental legislation is being reviewed and revised to develop a framework Environmental Management Act to provide co-ordination and enforcement across sectors. Also being developed is new legislation to deal with pollution control and waste management.
6. Environmental Economics Programme. Established in 1993 to ensure that policy and planning decisions made in the field of environmental management result in the allocation of scarce resources efficiently. A major component of this activity is that of natural resource accounting integrating environmental and resource information with economic analysis at the macro level across sectors.
7. International treaties: Namibia ratified the International Climate Change Convention in 1996, 75 and the Biodeiversity Convention, as well as the Convention to Combat Desertification in 1997.
8. Industries programme: Data is being collected on toxic and hazardous waste production and management.
9. The Namibian programme to combat desertification seeks to combat desertification by promoting the sustainable and equitable use of natural resources, research, integrated planning, training, education, promotion of sustainable resource management at community level, and policy analysis as well as advocacy.
10. The Green Plan - This plan considers the main environmental issues facing the country and the actions required to address these. The plan is to provide guidelines for promoting sustainable development within various sectors.
136 The Ministry of Justice from the public sector and the human rights non-governmental organizations (NGO's) have been striving to promote a sustainable human rights culture in the country. The NGO's include the Legal Assistance Centre, the Namibia Institute for Democracy, the National Society for Human Rights (NSHR) and various women organisations. The Ministry of Justice has been holding workshops and seminars with support from 76 its co-operative partners in the form of the NGO's to propagate the general concept of human rights and fundamental freedoms protected by the Namibian Constitution and international human rights instruments, including the African Charter. Some of the NGO's have produced simple texts in the form of manuals aimed at assisting individuals and groups to know and understand their human rights and how to protect them.
137 It is the desire of both the Government and the people to promote a culture of respect for human rights in Namibia. It has been realized that one effective way of achieving this is to start human rights education right from the primary school level of the educational system. To this end the Ministry of Basic Education and Culture has drafted a blueprint for civic education in Namibia.
138 The blueprint has a special section dealing with human rights issues. Although work on the framework has not been completed, the information and ideas deriving from this initiative have been incorporated in the primary school curricula. The curricula addresses civic values, including rights and responsibilities; and causes of change and development that influence a peaceful and harmonious life in the family, community, country and the world. The curricula therefore foster the development of attitudes such as commitment to human values of justice, equality, diversity, and human rights. 77 139 The Ministry of Justice in collaboration with the University of Namibia has established the Human Rights and Documentation Centre (HRDC)as a research and documentation agency to support the efforts of both the Government and NGO's in the promotion and protection of human rights in the country.
140 As reported in paragraphs 78 and 79, the protection of human rights in Namibia is pursued through the institution of an independent and impartial judiciary. It is also undertaken through the institution of Ombudsman. Article 25 of the Namibian Constitution provides:
(2) Aggrieved persons who claim that a fundamental right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled to approach a competent Court to enforce or protect such a right or freedom, and may approach the Ombudsman to provide them with suchlegal assistance or advice as they require, and' the Ombudsman shall have the discretion in response thereto to provide such legal or other assistance as he or she may consider expedient. 3) Subject to the provisions of this Constitution, the Court referred to in Sub Article (2) hereof shall have the power to make all such orders as shall be necessary and appropriate to secure such applicants the enjoyment of the rights and freedoms conferred on them under the provisions of this Constitution, should the Court come to the conclusion that such rights or freedoms have been unlawfully denied or violated, or that grounds exist for the protection of such rights or freedoms by interdict. (4) The power of the Court shall include the power to award monetary compensation in respect of any 78 damage suffered by the aggrieved persons in consequence of such unlawful-denial or violation of their fundamental rights and freedoms, where it considers such an award to be appropriate in the circumstances of particular cases.
CONCLUSION
This Report was compiled by the Ministry of Justice with inputs from members of the Interministerial Committee on Human Rights whose membership is drawn from staff of government ministries and other agencies and from the University of Namibia. Both the LAC and the HRDC of the University of Namibia received the original draft for their comments.
REPUBLIC OF NAMIBIA
NATIONAL POLICY ON LABOUR AND MANPOWER DEVELOPMENT
1. INTRODUCTION
1.1 The Government recognises the urgent need to 3.3 Furthermore, the statutory framework will restructure labour and manpower development include mechanisms and procedures aimed at programmes and procedures so that all vestiges the protection, development, motivation and of apartheid, racism and the colonial past may be utilization of the Republic of Namibia's human replaced by a system of equality, justice and full resources to their fullest potential. potential development and participation by all able-bodied Namibian citizens. 3.4 All employers will be encouraged to adopt suitable grievance and dispute solving 1.2 The Government is extremely concerned about procedures, equitable disciplinary codes and the present inherited high rate of unemployment comprehensive staff regulations. of over 30% of the total working force, mainly involving black workers. This situation is 4. POLICY ON MATTERS PERTAINING TO attributable to the apartheid policy and the TRADE UNIONS AND EMPLOYERS' colonial regime's unwillingness to recognise work ASSOCIATIONS as a right and duty of every able-bodied Namibian citizen. The Government envisages 4.1 The right to freedom of association, including addressing the situation by the urgent the right to form or to join trade unions and introduction of affirmative corrective action, employers' organisations is fully endorsed by labour intensive projects and programmes. the Government. This right extends to agriculture, domestic servants and all other 2. PROTECTION, FOSTERING AND economic sectors. DEVELOPMENT OF NATIONAL HUMAN RESOURCES 4.2 The Government accepts trade unions' right to establish various forms of union security by 2.1 The Government accepts its responsibility and mutual agreement with employers or their the challenge it represents to protect, foster and organisations (taking into account the right of develop Namibia's human resources, which are freedom of association). seen as vital and treasured national assets. 4.3 Collective bargaining between employers or 2.2 The Government perceives and employs the their organisations on the one hand, and trade expression "labour" as inclusive of all unions on the other, in pursuance of regulating occupational categories and skills, whether matters of mutual interest is regarded as an predominantly mental or physical. essential process of sound labour relations and should, therefore, be promoted. 3. FUNCTION OF TRIPARTISM IN FOUNDING SOUND LABOUR RELATIONS 4.4 The Government supports the introduction of a flexible and voluntary "industrial council" type of 3.1 The Government recognises the function of forum in Namibia's labour relations system for tripartism and will encourage and promote full the purpose of ongoing bilateral collective co-operation and consultation between the bargaining between employers' organisations Government, employees and employers, and trade unions at industry level. Such bodies including the respective representative trade should be registered with the competent unions and employers' organisations. authority and should function within the structure of a statutory framework. 3.2 In order to fulfil its commitment to securing sound labour relationships, the Government will provide 4.5 Official assistance to trade unions and a statutory framework within which sound labour employers' organisations, or to prospective relations may function and develop. trade unions and employers' organisations should be limited to the provision of training, shall be introduced. This shall include providing professional advice and conciliation services. employees (and, where appropriate, employers) with the means to have recourse to the Labour 4.6 The Government recognises the employees' Court which shall be competent to take right to strike and the employers' right to whatever decisions necessary. lock-out after all reasonable attempts to resolve a labour-related dispute have failed and the 6.2 Special ministerial sections shall be instituted statutory conciliation procedures have been which, inter alia, shall give particular attention to exhausted. The right to strike shall not, the protection of women and children, as well however, extend to employees engaged in as to agricultural and domestic workers from essential services as defined by the Labour the aforementioned malpractices. Code. 6.3 No discrimination on the basis of sex, race, 4.7 Employees employed in non-essential service ethnicity, political persuasion, religion or activities who are involved in a legal strike shall physical or mental disability, where such a not be dismissed by their employers, nor shall disability does not affect the workers' ability to legal action to recover costs or losses incurred perform a related task efficiently, shall be or suffered as a result of any legal strike be tolerated in any labour legislation, labour instituted against any trade union or its agreements, or in employment or remuneration members. practices. 1
4.8 Government intervention in labour relations 6.4 The prevention, whether by consent of processes should be kept to a minimum, otherwise, of any person from pursuing his/her allowing primary parties, namely employers and skilful labour shall not be permitted and any employees or their respective organisations, to provision for such exclusion in any agreement deal with and settle their own affairs to their shall not be enforceable by law. mutual satisfaction. 7. LABOUR EXCHANGE 4.9 The Government is generally in favour of the concept of workers' co-determination in the 7.1 The Government intends establishing, without management function of large enterprises. undue delay, a National Labour Exchange However, it acknowledges the sensitivity of this which will operate on a nationwide basis, having issue and possible pitfalls associated with it. regional offices to facilitate communication Therefore the Government intends submitting between work seekers and prospective the matter of workers' participation to the employers. National Labour Council for a thorough 7.2 It will be compulsory for all employers and investigation and report thereon. employees, workseekers and prospective _ employers, to register with the Ministry cf: 5. ESTABLISHMENT OF LABOUR COURT Labour and Manpower Development. 5.1 The Government subscribes to the view that an independent, specialized judiciary body, 8. UNEMPLOYMENT appropriately equipped to adjudicate and determine labour related transgressions and 8.1 The Government is deeply concerned over the disputes, is an indispensable component of a existing high rate of unemployment. well-functioning, equitable labour system. 8.2 Measures to combat unemployment will broadly Urgent legislation and other preparatory steps be based on the following strategies will, therefore, be initiated as soon as possible to establish a Labour Court for the Republic of The institution of comprehensive and systematic Namibia. (i) manpower development programmes to provide occupation-orientated education and POLICY ON DISCRIMINATION, RACISM, 6. vocational training. APARTHEID AND UNFAIR LABOUR PRACTICES (ii) The promotion of labour-intensive production methods in preference to capital-intensive 6.1 All forms of discriminatory practices, racism, apartheid, unfair labour practices and the methods. general exploitation of workers shall effectively The nurturing of entrepreneurial values and be combated. Suitable statutory measures to (iii) prohibit and make punishable such skills. discrimination, racism, apartheid, unfair labour The minimising of regulations pertaining to practices and the general exploitation of workers (iv) economic activity. The establishment of an Agricultural Workers Interests Section as well as a Domestic Worker (v) The utilization of efficient and objective Interests Section in the Ministry; assessment, selection and counselling techniques. negotiations between the Ministry and representatives of agriculture; (vi) The purposeful improvement of national labour productivity. encouragement of the establishment of an appropriate trade union for each of these (vii) The securing of equitable labour relations and categories of workers; and industrial harmony. if and when necessary, to pass legislation to (viii) The reservation of job opportunities for citizens ensure attractive terms of employment, a living of the Republic of Namibia. The employment of wage, proper housing and other universally expatriates shall only be permitted in the bona recognised benefits associated with a decent fide absence of suitably qualified or experienced standard of living. local candidates. 9.5 Steps should be taken by the Government at (ix) The provision of legal protection and institutional the earliest opportunity to secure adequate arrangements, technical and infrastructurai social security measures for workers such as support to the informal sector to enable it to workmen's compensation, unemployment develop as a bulwark against unemployment. insurance and a national pension scheme.
8.3 The Government recognises that every able 9.6 Women and childrens' interests section. adult has a right and duty to work and that, therefore, the public, parastatal and private 9.6.1 The Government should establish a section in sectors all have a fundamental duty in the the Ministry instructed to promote and protect national interest to rigorously maximise job the employment and conditions of service of opportunities and the general employability of all women so as to ensure that all discriminatory or Namibian workers. harmful practices are effectively combated.
9. CONDITIONS OF SERVICE 9.6.2 Statutory provision shall be made to enforce a minimum period of maternity leave and to 9.1 A Labour Code will stipulate minimum prohibit the termination of services on the conditions of employment for all categories of grounds of pregnancy. employees. It shall also be prohibited to require an 9.2 Industrial self-government by employers and expectant mother to perform work in an employees in respect of the determination of 9.6.3 environment which is considered unsafe or conditions of employment, the fixing of wages harmful to her and her unborn child. and salaries, the provision of, or assistance with, housing, pension, medical aid benefits and 10. OCCUPATIONAL HEALTH AND SAFETY unemployment insurance, and the settling of disputes shall be encouraged and promoted. 10.1 It shall be required of all employers, including the public and parastatal. sectors, to take all 9.3 The Government is, however, committed to necessary steps to ensure occupational safety, actively promote and, where necessary, to lay health and welfare of employees in the work down guidelines to ensure that attractive terms environment. and conditions of employment, including living wages, equitably distributed and enjoyed by all 10.2 Also envisaged is the establishment of an employees, without discrimination, becomes a Occupational Safety and Health Division to national object and achievement. The Ministry effectively inspect and enforce compliance with will devote its attention in promoting a fair statutory safety and health requirements. minimum wage in sectors in which it is most needed and will actively promote collective 11. MANPOWER DEVELOPMENT bargaining in other sectors. The Government considers it to be its primary 9.4 In this regard the Government takes cognizance responsibility, as well as that of the entire public of the plight and the poor general working and and private sectors to ensure that all citizens are living conditions of domestic and agricultural Granted equal and adequate opportunities to workers. In order to alleviate the situation the develop to their full potential. Manpower following steps are envisaged- development and training shall therefore enjoy top priority in the Government's approach to done with due regard to the country's financial 7.ddress the human resources issues of Namibia. resources and qualified and experienced personnel. 11.2 Action shall be taken to gather and evaluate information and statistics pertaining to the many 11.6 Since the Government believes that labour facets and factors relating to labour and legislation, labour policy and practices should manpower development. A research section be continuously evaluated and adopted where shall be instituted in the Ministry to analyse, necessary, it endorses the need for a separatr correlate and evaluate data obtained, and to tripartite National Labour Council which shah make meaningful conclusions and recommen- investigate and advise the Ministry on labour dations. related matters. For this purpose the existing National Labour Council shall be restructured 11.3 The Government will give consideration to ways and reconstituted along lines acceptable to the and means of encouraging and promoting major parties in the field of labour as soon as well-planned training programmes closely linked practicable. to the actual and future requirements for skilled human resources in the economy as a whole. 12. INTERNATIONAL CO-OPERATION
11.4 The Government will establish technical 12.1 The Government shall, with due regard to the institutions and job-related vocational training national interest and specific requirements, align programmes to develop skills and technological its labour policies to that of the International know-how in order to stimulate and sustain Labour Organisation's conventions and manpower development. A suitable planning, recommendations as well as with other research and co-ordinating department will be international instruments. In pursuance of this established in the Ministry to achieve the aim the establishment of international mutually objective. Formal and informal (in-service) beneficial ties between Namibian and foreign training should supplement one another in order labour organisations will be encouraged. • to obtain urgently required skill development. 12.2 The Government shall co-operate with other 11.5 Formal labour relations and manpower governments in establishing and executin institutions are to be realisticaly structured to labour and manpower development suit the labour administration requirement of the programmes and projects, as well as the Republic of Namibia. This should, however, be exchange of skills and expertise.
Adopted by the Cabinett on 31 July 1990. kimEPA ,,e
INITIAL REPORTS OF NAMIBIA
Presented at the Fifth Session
by
Dr L.I. Amathila
13 January 1994 - Geneva, Switzerland IMPLEMENTATION OF THE CONVENTION ON THE RIGHTS OF THE CHILD THE INITIAL REPORT OF NAMIBIA
Introduction
Members of the Committee on the Rights of the Child, Namibia was represented at the World Summit for Children in 1991 by the Head of State, His Excellency President Sam Nujoma, who led our country to accede to the Convention on the Rights of the Child. Children .are highly valued members of Namibian society and our Government has ensured that their interests are firmly protected by the law. At the time of independence in 1990 we found a multitude of children living on the streets, alienated by society, and most often referred to as "thieves". In response to this treatment the children found ways to protect themselves and make their lives worth living: some carried knives, some sniffed glue, some smoked marijuana ... Almost all were hostile towards adults, which became evident when personnel of the Ministry of Regional & Local Government and Housing approached the children in conducting a survey in 1991 as a first step towards helping them. An interministerial committee had been set up to examine the situation of Namibian children in general, and the Ministry of Regional & Local Government and Housing was given the special responsibility of tending to the children living on the streets. The commitment of the Ministry personnel eventually allowed them to gain the children's trust, and since then, much progress has been made to relieve their plight. After just six months of rehabilitation work, all the children who were part of the Ministry's programme were placed in normal schools, and industrial schools. They are still there to date. The derogatory term "street kids" has been discarded and replaced by the more meaningful expression, "children under difficult circumstances". And circumstances, as we all know, do change.
1
GENERAL MEASURES OF IMPLEMENTATION (Arts 4, 42 and 44, pars 6 of the Convention)
1. The process that Namibia went through in the preparation of its report. The Ministry of Local Government and Housing has been designated the focal point for Children Affairs by the President. There is a Children's Affairs Division in the Directorate of Community Development headed by a Deputy Director. This division was the focal point for the reporting process. The division coordinated all inputs from the Government Ministries and the Ombudsman's Office. This division nominated the Legal Assistance Centre (an NGO) to coordinate input from all NGOs dealing with Children's issues. The Legal Assistance Centre was chosen to coordinate NGO inputs as it is represented in major centres of the country through its Legal Advice Centre Offices. These offices receive complaints regarding the violation of human rights some cases of which concern child rights. Information received from these offices was compiled together with those received from other NGOs and the Government. This and court cases of child abuse and rape provided the elements for the report. The names of NGOs dealing with children's issues appear on page 5 and 6 of the report. Most of these organisations were Consulted during the preparation of the report. Ministries were requested to fill in a questionnaire on measures they have taken to improve the conditions of children. The draft report was widely circulated for comments before being finalised.
2. a) In May 1993 a Child Rights Workshop was held in Opuwo which brought together the Ombudsman, teachers from the North, community leaders of Opuwo, UNICEF, NGOs and school authorities. The workshop was sponsored by the University of Namibia and the Swedish Embassy in Namibia, with UNICEF support. Various faculties of the University were involved in the organisation and made presentations on various aspects of the Convention on the Rights of the Child, especially within the Namibian context.
b) In commemoration of the Day of the African Child, two weeks of events were planned focusing on the Rights of the Child, and Namibia's National Programme of Action as an important tool for ensuring implementation of the Convention. Six key messages to promote the Convention were identified. Posters and TV commercials were developed, widely disseminated and televised. The 2 messages were: 1. Right to Education 2. Right to Childhood 3. Right to Protection 4. Right to Health 5. Caring (drawing attention to children in difficult situations) 6. Right to talk Various NGOs, the private sector and key government ministries were involved in the planning and mobilisation of the public. The media also played a prominent role. They covered the two-week events on radio and TV (child rights commercials were shown during prime time and major events were given extensive coverage). The major daily newspapers also covered the activities.
The National Programme of Action for Children is seen as an important tool for ensuring implementation of the Convention. It is for this reason that celebration of the Day of the African Child in Namibia was used to monitor progress in NPA implementation.
3. Day of the African Child celebrations is certainly one of the opportunities planned for promoting child rights issues. As a result of a.good ihter-sectoral collaboration for planning the events of 1993, a coalition of NGOs, the private sector, government ministries, international organisations and other community partners has been forged, which provides the vehicle for greater public mobilisation and increased awareness of the Convention's provisions.
4. The question of the rights of children is partly a school governance and a Civic Education issue. Since learners have to study the Constitution of Namibia, Chapter 3: Fundamental Human Rights and Freedoms, provides a good starting point about education on the rights of children. As far as school governance is concerned the school organisation is guided by the "Code of Conduct of Schools", "Discipline from Within", and "Discipline with Care".
5. Discussions are still being held on this subject. Involved in these discussions are relevant NGOs and government ministries, the Ombudsman, UNICEF and some concerned bilateral donors. The National Planning Commission - as the focal point for the implementation of Namibia's National Programme of Action for Children (NPA) - and the University have also joined the discussions. It is hoped as these partners meet on the formulation of the Children Act, the implementation of the NPA, the running of the Women and Child Abuse Centre and other child-related activities, ideas will emerge on how best to establish such mechanisms and who should be responsible for the coordination.
3
6. Article 144 of the Namibian Constitution makes provision for the "general rules of public international law and international agreements binding upon Namibia" to form part of the law of the country. The word "shall" indicates that this is peremptory. However, the same Article 144 also commences with the phrase "unless otherwise provided by the Constitution or Act of Parliament". International agreements which are ratified by Namibia seem to be self-executing unless an Act of Parliament states otherwise. This is therefore slightly stronger than the situation prevailing in other common law systems. At the very least, international law would have great persuasive value in the interpretation of domestic law.
See the case of ex parte Attorney-General Namibia: in re corporal punishment of organs of state.
7. The Child Care and Protection Act is at present in the draft bill stage and is being widely circulated to community organisations for comments. NGOs such as the Legal Assistance Centre (a public interest human rights organisation) and other institutions are working closely with the Ministry of Health and Social Services, acting as coordinator, in drafting.comments and submissions on the Bill in its present form.
8. Within the context of the National Programme of Action for Children a number of initiatives have been established for the monitoring of the NPA goals and indicators. The primary sources of information have been within the sectoral ministries through the development and implementation of their ministerial information systems. Work has focused on assisting the information systems to incorporate the goals and indicators of the NPA into their data collection systems. In addition the National Planning Commission has established a data base for information related to the NPA, which collects and compiles the information from the various line ministries.
Ministry Sectors Monitored
Health Health, household Food Security/Nutrition
Education Education
Agriculture Household Food Security/Nutrition
Department of Water Water and Sanitation (efforts just beginning)
Other areas where monitoring systems require strengthening 4 are for Women, and Women and Children in Difficult Circumstances. There is considerable research being undertaken in all of these areas - too lengthy to document.
9. Government budgetary allocations continue to reflect the attention paid to the implementation of the four priority development sectors declared at Independence: Agriculture and Rural Development, Education, Health Care, and Housing.
As a share of total government expenditure, the four priority sectors command over 43% of the total national budget; a pattern which has been maintained since independence. Inter-sectoral allocations to essential services remain difficult to estimate accurately, however the Ministry of Finance presentation of major functional and economic classifications suggests a mixed profile.
Budgetary allocation to basic education saw a real increase during the year, while current expenditures for clinics and public health services fell by 14%. Estimates of the allocations are that Namibia has allocated 15% of the budget to basic health and education which is a fall from 1992/93 levels; allocations for other sectors toward basic services remain unclear. (See Annex 3)
10. Following a 79% increase in development assistance from 1990 to 1991, support appears to have somewhat levelled off at approximately US$ 135 million per year. The UNDP and Bank of Namibia presentations do not isolate basic services well, however an estimate to broadly defined social services, including the drought relief programme, received approximately 55% of total donor assistance. Over half of this assistance was directed to education. Efforts are underway within the creation of the National Development Plan to improve the definitions and categories of development assistance to make them more useful to in- country users. Cooperation with donors has been strengthened through the process for the creation of the National Development Plan, which is being done in a highly cooperative manner. The Keynote Issues paper for the National Development Plan includes among the list of policy documents which will serve as the basis of the Plan, the National Programme of Action for Children.
DEFINITION OF THE CHILD
1. a "child" In the draft Children's Act, a child is defined as "any person, whether an infant or not, under the age of 18 years." 5 The Government Law Reform Commission is in the process of 2. addressing the urgent need for changing laws which are discriminatory and unconstitutional. The Women and Law Committee is_part of the Commission and is looking at a complete overhaul of the laws pertaining to marriage and divorce; maintenance and inheritance. NGOs such as the Legal Assistance Centre have initiated gender research projects to assist the Women and Law Committee.
GENERAL PRINCIPAL ART. (2)
Non-Discrimination
1. The-issue of discrimination is adequately covered in the Namibian Constitution by Article (10). Parliament has also passed legislation. "Racial Discrimination Prohibition Act of 1991." Labour Act is also strong against discrimination. The Labour Courts are already in place - people have access to them. Some cases were already discussed by the public whenever they occurred.
2. The Constitution is very clear on equality, and there is no obvious discrimination against girls per se. In Namibia, you find more girls than boys in many schools, particularly at primary schools. The only distinction between girls and boys could be that girls are more likely to discontinue their schooling due to pregnancy.
Best interests of the child
3. There is presently a backlog of legislation due to the few legal drafters in the country and as changes in pre- independence laws continue to be made. Further, poverty, unemployment, fragmentation in families and communities continue to pose a development challenge.
Respect for the views of the child
4. The Draft Child Care Act has lowered the age of consent to medical treatment to 14. The Ministry of Youth and Sport is also trying to set up a Youth Network. In addition, the National Youth Council is now in place and has held its first meeting. This Council will be a youth forum for discussion of ideas and needs.
CIVIL RIGHTS AND FREEDOMS
1. The responsibility of Registration of Births has since September 1993 been placed in the office of the Regional Councils - in each of the 13 Regions - people are no longer 6 required to travel to the capital for birth certificates.
2. There are no difficulties in the implementation of civic and political rights - the positive aspect is also that in Namibia there are no gender differences, any child whose one parent (man of woman) is a Namibian, becomes a Namibian citizen. The 61% pass rate for matric students - the highest ever in Namibia - shows that the Government is taking children's rights to education seriously and huge efforts are being made to equalise the formerly unequal educational system. Attitudes towards corporal punishment are also changing in light of the case of ex parte Attorney-General Namibia: in re Corporal Punishment by Organs of State, where the infliction of corporal punishment by judicial or quasi judicial authorities was held to be unconstitutional. Parents now also seem to be changing their attitudes to the infliction of corporal punishment on their children.
FAMILY ENVIRONMENT AND ALTERNATIVE CARE
1. The Maintenance Act 23 of 1963 is still in force in Namibia although it is the subject of scrutiny by the Law Reform Commission and will in all probability change. At present the custodial parents lays a charge of non-support with the maintenance officer at the Magistrate's Office. The Magistrate's Office then uses the information provided by the custodial parent and the respondent is summonsed to appear before the Maintenance Court. Maintenance Court process can be and most often is served by the police rather than messengers or sheriffs. Failure to comply with a maintenance order is a criminal offence. When a verdict of guilty is reached in respect of non-compliance with a maintenance order, a garnishee order can be issued by the Court whereby the employer of the defaulting person is ordered to deduct the amount of maintenance from the defaulter's salary.
As far as State responsibility is concerned, State maintenance grants are available although in a very limited amount. The procedure is currently under review.
2. Unless there is a court order denying access to a child by a parent or a guardian - access is allowed to both parents. However, this issue has been taken up by the Women and Law Committee. The existing law regarding custody and access in regard to extra-marital children does not seem to be in the best interests of children: fathers of such children are not willing to support such children when they have no legal rights to custody or even access. In any event emotional support is as necessary to these children as financial support. r-
7
3. The Ministry of Health and Social Services has in 1993 launch a new concept known as "Baby Friendly" initiative - which was widely reported in the mass media - to compel employers to have a "breast-feeding corner" for mothers. Thus there is progress in this regard.
4. There has been no problem in general, but the children who returned from Germany after the war have great problems adjusting, and therefore some Namibians of German origin have "adopted" these children and placed them in German schools. All other children have been successfully united with their families and communities and most of them are attending school. Alternative care options are sufficient in the sense that there is a long waiting list of adoptive parents. There is a 5. Progress has been made in this respect. Children's Lifeline where they can call for help if abused. Article 30 in the new.Draft Children's Act states that: "any person convicted of any offence under this section shall be liable to a fine not exceeding N$ 20 000,00 or to imprisonment of not exceeding 5 years." Finally, the newly-established Women and Child Abuse Centre has gone a long way in educating abused women and children on their rights. Several cases have already been reported to the Centre.
6. The University of Namibia is responsible for the training of social workers in the country, and this is ongoing. Further, social workers have participated in 1993 in training workshops in South Africa and Mozambique on participatory approaches that involve children in difficult situations analysing and providing solutions to their problems. This new methodology is known as "Action Research".
BASIC HEALTH AND WELFARE
1. The total national budget for health is N$440 million and the distribution is as follows:
Curative service N$ 119.50 million Community health/subsidies 151.50
Medical laboratory services 9.80
Pharmaceutical services: - Administration 2.50 - Supplies 40.00 Social services 136.00
Clinical supplies 55.00 8 The budget of Maternal and Child Health/Family Planning covers health care for children. Details of the expenditure are attached as ANNEX I.
2. The epidemiological pattern are: Infant mortality rate 56.6 per 1000 live birth Under-five mortality rate 83.2 per 1000 live birth
Maternal mortality 225 per 100000 lives The nutritional status of children deteriorates during the first 18 months of life and then remains relatively unchanged until the fifth birthday. Stunting, a sign of chronic undernutrition, is observed for 28 percent of children under five. The prevalence of stunting increases with age, from 13 percent of children under 6 months to 33 percent of two-year-olds. Stunting is much more common in the Northeast region (42 percent) than elsewhere in Namibia. Almost 9 percent of children are wasted, an indicator of acute undernutrition. The amount of wasting is higher than expected for Namibia and may' have been caused by the J drought conditions during 1992. Wasting is highest in the Central region (13 Percent). The first cases of AIDS were diagnosed in 1986. Since j then, the country has witnessed a geometric increase in the number of cases. j As of March 1992, over 2000 cases of AIDS/HIV were recorded. This represents a fraction of the actual number of HIV infections and AIDS cases in Namibia since no J national epidemiological prevalence study has been undertaken. The present number of cases is based on diagnostic tests J for clinical reasons, screening of voluntary blood donors, voluntary testing for insurance companies and for people applying for external training scholarships. The breakdown of the number of cases by age and sex are as follows: J Distribution of cases by SEX (March 1992): Overall, 54% of the reported cases were male and 44% female and 2% unknown. Distribution of cases by AGE (March 1992): The age distribution shows 3% of the cases to be in the under- five year age group while 5% were in the age group of a 45 and over. Most of the cases - 69% - fall within the sexually and economically active age group of 15- 44 years.
LEADING CAUSES OF DEATH:
• Diarrhoea (42%) • Undernutrition (40%) • ARI (pneumonia) (30%) • Malaria (31%) 3. Namibia Demographic Health Survey has been finalised in 1992. Summary of main findings and conclusions is attached.
4. Namibia is still facing problems in improving the situation of disabled children. The main constraints have been mobilising the community to make rehabilitation community- based. Long distances and lack of transportation poses a further challenge in addressing this problem.
5. Ministry of Labour is still in the process of completing the package.
EDUCATION, LEISURE AND CULTURAL ACTIVITIES
1. The 1993/94 appropriation (recurrent) to Sector: Education and Culture totalled N$ 789,772,000. The breakdown per sub-sector of the Sector is as follows:
1.1 Policy Formulation and Alleviation N$ 555,000 1.2 Administration N$ 27,496,000
1.3 Development and Monitoring of Educational Standards N$ 36,912,000 J 1.4 Pre-Primary and Primary Education N$407,752,000 1.5 Secondary Education N$228,184,000 1.6 Tertiary Education N$ 58,868,000
1.7 Adult Continuing and Non-Formal Education N$ 15,451,000 1.8 Culture N$ 14,554,000
Pre and Primary Education is allocated about 51% of the total Budget. Meanwhile the share of the Education and Culture Sector is about 28% of the total National Budget. j 2. The main guideline on pre-school or early childhood education is that communities have to take responsibility for organising and running pre-school centres. Municipal and Local or Regional Authorities should find means to
10 assist the communities financially. The Central Government may have to provide subsidies to Regional Authorities or mandate them to impose certain levies for the purpose of financing pre-school education. Relevant ministries will provide technical support. For example, the Ministry of Local and Regional Government and Housing has to secure Central Government subsidy and devise a formula to share such subsidy among the regions; register pre-school centres, etc. The Ministry of Health and Social Services is to ensure that basic health is maintained at pre-school centres and immunisation against common preventable diseases is carried out to all pre-school children. The Ministry of Education and Culture is to train pre- J school educators and provide basic learning materials. These guidelines need, however, to be formalised in a law or regulation. That is the responsibility of the Ministry 1 of Regional and Local Government and Housing. 3 The New Education Bill is still being discussed by all the stakeholders. In particular the Ministry is working on the various regulations which will guide the administration of the Education Act once passed by the Namibian Parliament. If things go well the Education?Bill will be brought before the Parliament later this year.
4. The National Institute of Educational Development (NIED) will be completed in the second half of this year. However, the actual programmes which will be carried out at NIED are being currently housed in the Ministry of Education and Culture Head Office. These programmes include Curriculum Research and Development/ Language Research and Development, Teacher Education Materials Development, etc. As far as the teaching of Human Rights is concerned, this is being taken in Civics Education and also as a cross- curricular theme. 1 SPECIAL PROTECTION MEASURES A. Children in situations of emergency 1 1. Currently there are 617 registered refugees in Namibia, the majority - about 90% - from Angola. It is estimated that several hundred more Angolans are in exile in Namibia without having registered with the authorities or with i UNHCR. Other registered refugees are from Zaire, Rwanda, Somalia, Ethiopia, Uganda and Kenya. (See Annex II)
11 2. The Namibian Constitution provides that illegal immigrants may be deported from Namibia if deportation is authorised. 11 Refugees children are provided with education. With the assistance of the Council of Churches in Namibia (CCN), UNHCR, UNICEF and the Namibian Red Cross, the following were enroled in 1993: 2.1 Kindergarten: 68 pupils (0-5 years); 4 teachers; instruction in Portuguese and English. 2.2 Primary school: 95 pupils (6 years and up); 4 teachers; instruction in Portuguese and English. 2.3 Adult classes: 100 adults; 5 teachers; instruction in English. 2.4 Adult classes: French and English
3. Apart from what is mentioned above, it is worth mentioning that the refugees are encouraged to engage themselves in activities which will in the long run be beneficial to them, e.g. a small shop for household essentials, small bakery, a number of vegetable gardens is the sight of Osire Refugee camp today.
B. Children in conflict with the law
4. This is the subject of an investigation by UNICEF, the Legal Assistance Centre and the Ministry of Youth and Sport. The Ministry of Home Affairs is cooperating in this regard. At present there is only one school of industries in Namibia. It caters for boys only. There are no schools of industries for girls and there are no reform schools in Namibia. At present juvenile prisoners are being sent to the Gobabis prison for special training programmes.
5. The project has not yet been implemented. C. Children in situations of exploitation
6. Section 42 of the Namibian Labour Act (Act 6 of 1992) prohibits children under the age of 14 to be employed in any mine or other work related to mining activities. This Act went even further to prohibit children under the age of 14 to be employed in construction works and factories.
7. The Labour Act is now fully operational since the recent promulgation of the Labour Act rules. District Labour Courts have also been established. The Act makes provisions for Labour inspectors to carry inspection regularly. Inspections are not only related to labour practices but also to employees, and inspectors are required to report incidents of child labour. The Act imposes mandatory sanction of N$4 000,00 or 4 months imprisonment or both for violation of its provisions.
8. The Office of the Labour Commissioner has submitted its
12 recommendations on ILO Conventions relating to child labour to competent authorities for consideration and decisions. Namibia will participate fully in ILO Conventions after the competent authorities have accepted and approved recomme-ndations so submitted.
9. As indicated in question 7, labour inspectors are equipped with powers to report all unfair labour practices including r-4 unpaid workers anywhere in the country, farms included. IA Hence, children are protected from being unpaid and exploited workers. However, this proved to be difficult where and when children do perform work as part and parcel of their contribution in a family. The plight of rural farm workers and their families is being seriously investigated. 10. Again, the Namibian Constitution and the Labour Act (Act 6 1 of 1992) have both prohibited a child under the age of 14 being employed in any capacity. Minimum age for admission to employment in Namibia is 14 1 years. Section 34 of the Labour Act does prohibit any employer to require or permit any employee under the age of 18 years to work on night duty. Technically this implies that all working persons under the age of 18 have only to work 9 hours per day, which is less than 45 hours per week. Part V of the Act provides for Basic Conditions of Employment and any violation thereof may result in a District Labour Court's order or award. Inspection visits are made on a regular basis, be it daily, weekly, monthly or periodically. It is difficult at this stage to provide accurate data of non-observance of regulations reported and of sanctions imposed because Namibia does not possess a central data-bank.
11 The Ministry of Health and Social Services has established a unit which also serves as a resource centre providing rehabilitative services. The aim is to have rehabilitation centres in all the regions. Public awareness and support is considered important and therefore public mobilisation has become a key strategy in combatting drug and substance abuse. Further, the Ministry of Youth and Sport has just completed an in-depth desk survey of health matters concerning youth in Namibia and has published the first booklet "a Youth Health Profile" informing the youth about the issues of:-
- Teenage pregnancy - Contraception - Drug abuse including alcohol - Smoking - Aids and STD 13 12. A Women and Child Abuse Centre was opened at the Katutura Hospital in mid-July (12th) 1993. This centre is very much appreciated by the public. Around 120 criminal cases have so far been reported. Many of these cases were referred by schools, clinics, hospitals, police stations, employers private doctors, social services and NGOs. Cases dealt with at the centre included rape, attempted rape, indecent assault, sodomy, abduction and offences under the Children's Act.
(r) 9 2 2 o o o o o o a 0 „=, 0 ,0 ,0o9oo o 1 o o 6. 6. 5.0 8E90.09 0 no o o c o c.) CO C./ 01. 0 g 8 0, o 6. o c o 0 i o o
0 0 0 I Ci C) 000 L .--. tr; Ul. t... Ci .. Ci 0. 0; S O. C c O- 1.--. ci O -. . - --> CV cn cv - z 0 -- --CIO --. 000 cO I coulNim C CV .- (0 CD N- N. cocoN-CV,- c_scoululncl0 CO I CO CO co 6 O _ in vr c.i ..-- •c- - a Cl c‘i -ri - CV I CV CV 237, Cn CCD CD 0,, - .cv -• - - TOTA In - - 0) - o•I I o o 0,
CO M1'7' c 4 CV- -I ..c.. c- 4
ct) CO 0(000 000110 II t lllll
c, 0 I 0 c.) oac) 00 CD 0 000 o 0 = cn0 0 0 0 0 0 00 :-1 0 000 00 cos 0 0 ri vi h. - t✓ ; cti cc uS _ co 10 01 o CV .- 2, 0 cz IX con CO cm cm CO 7 .,... 0 5
in 572, E 0 572, Cb •-• (/)/) CSC
C) co 2, 2, 2, . C. O 0 0 0 c 0001000 I g c I_0 0 0 0 000 cnoc co 0 Coco 0 o 0 ccc ccc cc„ ocoo C 0 0
0 000 - co c- a co - trT !-- ci v- cu- "":- P.: O o" - - 0- 1:11,-0..L.n c‘.1coto c.ic ,,-. co __.'i (..) - o C c to .,- Loa.) CO -ulcv to CO cl co C) 0 .- U) In o 8 .-- „ , .- _ a .cr 0 a) C) 951, u) © 0.1 - - . Cl) in 7-- - C) U) V)
CV CI CI 35,
Y I,. 1 4; 1 0 0 0 0 00o 10 so s I lllll I 0 0 0 0 000 0 0 n 0 ?.7) >-• 0 CD C _ - tr) C0 0 0 0 0 0 0 0 0 cl 0 a> 0 0 0 147 N CO - el -cf: 0- a °- - it, -.Y. cvl C") co .- ,- 03 cn 0 cn ..- CD -c- -c• c- 0 2 -5 ,m 0, 0 m 0 CD 0 0 C Ici C'D C•7 CD CO CO CD CO CQ -J CT) C) cri C C O c) C o cic)Intoc3c),0 I t c),z) 1 I , ,
0 0 C.. (Doc --) c)00Qc,c co 0 o 0 000 - 000000,9 C 0 0 CI 0 0 ity 0 . - . d ,-.: C 0 0 0 n 1 li 6 6 1.-- - C -/- C -C N C) -- - - -
il - 0 ,0 N.. ,-- al tr, 0 cv tr: CO C ices e' o U) CC) en ,.., -r- r-- t.... cn 0 05- ...- s'J CO C) tilicl cp co CD CID rv
loa .-- a; CO tn •c- C7) - & ci 0_ I In LO U) I O .- - CV - - - U- Se CD -CV GI ..- - ...- Commu 0 C in In Cl) u_ ...- - ,-- Y 0 (.5 .-.-.— 000000 0 , ,„ „ ;,. 0 8 8 0 C 0 C 0 C 0 c 0 0 0 coo 0. o o 0 o o o c c 0 0 .0 c 2rz vi 0 0 H N , , C) C0- CV . U) S 0. CD . 0 - Ci C‘r CC CI 0- - 0 0- --- ''-'' C.) CI ^COM COLD0C,MCVW - 01 C) M M C cp ,... - es/ VI03 ,71,.. ■CV h co (S) - .-- Cr) CO CZ In CD CV - QS hi C1/41 CD' to U) CO 0 S 77] a 1.....- - •-• - _ - ,c.., co Cl) 0 0 (r) c) C) I cn cc) - •- ,-- _ ,...... -
1-- 0000 0000000 0 I I I I ) I t 0 000 0,000000 0 C 0 00° 0 000000 C0 0 0 00 0
76 0 0 0 ci c\i ix; CI cc - ci ci tri -: cl C - 0 - cv co 0 C) o./ c7) ...., •,q- cl tr) 0 N. cr) N. - O CD 6, CO o - crl CV 04 CD CD ■- 0 ..c- .:_': U) co- h: •-• CV ,-c0 CD 0 01 0 E (x c ci 6
- - 20, < -.... cv c‘.1 , 0000 000 I I op I - 11111Ii 0 0 0 C) 0 C/ 0 0 Z. " C 0 0 0 C) 0 0 C) 0 0 0 0 o a 000 0 - - V_ 777 •c- cv •c- Cv . ., ....,- .... •s- .- CD 0 0, V) h. C t ‘1-4, C.0 1.0 0 3 -6.- Y. 1,, in N. 76 \./
0 r.:. 1 .—L r•-• _'. 5 uri I.:_. < 7-."-: to -1 H C .0 CI) 0 ---Z.-' z I- i- .= > - 0 --< 0 0 - - ..... (.; LL1 n r- . C m Z = C.. -,_, i •- o -,, Y 0 Z /- 5 W 0 -,_. - C/) cn 5 '-' • v) CJ __ cD cow • c = C() i- 0 1 ut "!---- cl - < .,= --- f•-- a D--- rm _ c 0 .=.-- -5 -0 >, -5- 0 > GI - w 0 zn .1-7 -ILu 0 5 .-.1 ,-, r, _ D Z - 0 ..-.0'.. .c L) 0 u D X C = 71 7) GaO] ILI < (3 --, ...- X Z 0 cul)c) a. '." — , U) CO .'' LL1 w 0 X al:: 0 = -- Z Z 0 ''' ,- -6 0 X -r LLI =c (r) ,- (3 c?iul — c -.. o -. • .---- 1— •P. < w - Ill 5 -a ..., w "ii 71- o -2; o Z < -J P 15 c_ 0 1:1 - cr, a ,-- 3 0 < 7.;; c eJ _ lid M = 17. ,-- 5. ,-, X c) - CD .- 41 0- H ..,„ M LI 0 Z 0 O o .o cn w En 0 . ..= - 0 ,0 al -0 --- a 5 o , __ < M 0 o0=--'w ci) c o u 0 _ - in -o .:_-= Zi oct 3' co -7 0 - ,- Z 0 Z c) ,- I- 7-; .'p,-. ,--,c° c C < L.v-..i - ).2 0 -0 ;:i UJ < 0 I c)c)0Z et 0 - . 0 c - I- c;- o , c) co ..-1 . . 0 0 co a) 0 C,..,-F,, CI- (1., ..= 7.1 0__, 0 - 0 - c. 0 a C') LI - - •-• cr) o - tn - - ,- =u_ ,-- 0 CD .-- > CD .- _z C: CD 0 = 7., .i'd n3 _ 7,-% - •-• •-■H I- cD7ciair0-05 ■-0 3 ..7..- En -.92:H 0, ,- w= -11.1x , - __. ..., H0 0 LU 01 .12:1:M .200 2".2.."=cnc.T,=::nx 1- - c.: c-) -.:1,- - :\I f71 •C- VD h 0 — ,; Lc) c:_-... 0 - tr) :::. 0 0 C Q 0 CN CN CV CV CV CD 0 co 0 - cv -- - '1' '," U) V)• - --: C CD 0 C 0 0 0 0 0 0 0 0 C 0 0 6 (5 o o C o C 0- o ,- cn • -
N
r3 0 CD>> u-)
.7. P.- V CIINI NI =,' t., 0 rr 0 L ed, 0 a) 1— tr'-- E p., LU mu o B 1.0 1.1 e
1,—. u L
0 w B H 0, )-- 11 . 0) co 0 LU 0 t. O z cri co 0) ri z k-s -0 0 1 1--, 0 --, 5 Q 7.; 1-t 1--, U )--- 0, , 1--,- al H r--- H- ,__ 0 /N ap !-- r-- H- 0) 0) H u - c.) 0) !---0 a) s :II CO to n M
I a
vel o fl I i e A U
1 CO Ul 1 N I CD I H U I
U
L.) 1 1 1 1 H N.) I L 1 H 1 1
N U u -... -.I N0 H --I Ul Ul N H H H 0 1 I i- N H u 0 ,... 0-N > I1 LO 1 11 f•-■ II 11 I 1
\ I\ < Ul \ crt ... U1 N H H H 0 H (..j ,,...) Li ,... a, 1 2--, --.1 . LU t1).) C
G >
O )-< :C
o r0 o 1-. H o H 0 0 co 0 H LU L.) 0 0 H 0 0 up CI) rs3 LU 0 0 -..I H U H 1--+
Al
H
s a li o Jd od CD 5v usi l sy T I
M uT
oc Di r T CD H o 0 eonp sT
ati n cr noT q
g/C /a a Aautur fD caq p
o n /i uoT n t o o mmuni p eaH ean4i g anoaS oes o T o InT B u A;T aog a t si y D c /E66T ev S e el rvi o 6661 pme c es nt
TVDSIJ
uvax B
1/40 w +0) 01 v1 O Crl U
01 .0. CJ N C1-1 Y Y .0. 01 DG
0 0 0 0 0 0 0 0 E
0 0 0 0 0 0 0 0 Fa (1) T ALLO I Z )1:1 C
rt• ATIO • fy N TO
H oi r.j CD Ao _SELE H 0,0 \s, p d‘c Y cho c!P 6.0 -4 0 cr
td C 0 TE a■ D MI
fi NI ST RIES + I + I 1 I + I H W U1 H N H co I-I at 0\0 4:). cm. 0\0 co N.) ov. 6\0 0 cko op 0\0
CO /SECTORS ts) 0
MI .D. CO --.. 000000000 0 0 0 0 CD CD 0 0 0 0 0 CD cp CA 01 01 C11 (Ji _D. 3). _r_. .0. CJ ro (...) NJ N.) NJ NJ --. 0 0 0 C.) 0 01 0.1 - (II 4,- C.) to .-- 0 (...) NJ - 0 o-cn cx) c..3 - o --4 NI CD 0 0 -1 -I Cr) W 3] cr) Kcnir K 0 0.'"C -4 K --i -0 0 M M 0 c c 0 c 09,7(---6.,...,:, STRY 0 0 o = a>. = il. 0, al m s.- 3 a, -0 CD CO 3 ,-, - " .wi,-:,„ - 3 ar) ID -I -I i,-,- . a 40 al 5 = CD cc< cr, --, - c3 m > > --C co FA-- -a m - o- cr 0 - a 6. -ig 7-- - II I- -0 -0 0 CD (") 0 1)-' 0 0 .< --1 - CT 0 0 ..,.. LI - CU --, 47 7 Z -, •-■ 1 > al D (1) O ;( '' ''. D' > D --{ co 0 0 C1) 0- Z 0. VI- -.tu -
Z F, 0 OF C 1--- Go 0 cu Cn. 6-, 0 z -,-7 . = cr) m _: o 0 a) 0 > - „ o cn p_ a- - 0 cD c° o. c r- - = 0
73 J:1 --- o a- - -r, 0 0 z M GR Z 17 -cT 2 T CO 0Cr M D D rn al o S -0 0 D e. -I cu .o c . ).< GI o", > AIN cu EXP 2) m X -a- (n o '0 FA 13 0 6,' (- HE 0 ii.7 003 2 cr) 123 a AN o su tu D 0 > Z m c /SU --i 0 3 = c f T1 -. z cr) -. m --4 --I i a, X T D T .° '-') -171 BDIV m a o • ' cn (I) AL 0 - M. JO cn m cD mi ' 0, Z X cn o- 0 crc c 6 a M 7:1 al 7.)- 0 T II)' > 0 co io- cu 3 c„ < cr3 - 0:1 c° -5. Z URE OTAL ._. TH m c -s- cr 0 0 m a ISI r ..-(-- 0 c :-... 0 D CD Cl, z Do 6-. i-o- 1D In I CD > ITI ---1 ON 0 D3 CO 0 0 . 0 0 G) Di 0 5 0 cn C AND o • o I . --1 `.. 0 = C 71 MI S FD C -I a) •-•,:;,, 0 Co 0 1M . CD D Co " -I .71 cn 1 0 0 ■-• C 0 in 0 -.4,1 -nc = CD co X. D-- -I -I ,.. 0 > S Z - , -, 0 r- (r) 0 en g -1 m ..c.. . > OC MI o r" a) ! CO k E,. ... IAL 760 ti".• r \ S 7 76 ....1. CP . 0 0 60 I4 Z ..,, ) _, (Ti .,.....-.., 5 - 0 0 co -4 (.5- -. ERV •-• --s. - co - t... ro .... PO .D. rn .0. ,0 ,0 ,00 - 01 - G.) -.4 - CID r..1 NJ 7L..-7 a 0 00 0 0 00 C4N.:-. --, n 0 .0 "co c lo co co 0 0 ,‘D CD 0 C, 0 0 0 CD 1 .111 ( 1 r-: 0 0 I ! 0 0 0 0 0 0 C) ICES A 2 20 --.. , ...a d 0 N 0 0 CO mi ,016 ,0 - - IND 01 L.73 -. V ni CO a) co - 0 16 -.a __1. st 2 a)- Z1. C -- 1:-) O 4..) ra Cn - -• leo X a) -.4 cn -4 co (..n c...) n- co o c..) r..o r ,000 o ,00 _ ati c - - al C) C -... CI - 01 CV :V — o b ..--,ocooc000 o o o "co on 0 0 0 0 '-'000000 C 0 0 0 7 0 0 !1 1 1il tO 0000000 0 000 1 1 -.., •-• S 1 C) CO pecl 9 CO (.0 (.0 0 co ,569 -, - - --• -4 -....1 O C.71 (T1 C IV N' 0) 0 ND C.r, 03 ali C Cn 0 --, 0 CO -.1 r..) -.4 .O. C1 In 2-- CO - Cl ND CO ..-1 0 0 CO 0.) C) - co zod ,000 C0 0 - - CD - CO IV C.) 0 0) CD - CA OJ 0 CD 0 0 0 °lobb -cc -cob cp-o -o -c) O co o o 0 o c)c)ccoo c'c000 z O co 0 11111101 .::::)oc)c)c)occ Qc000 O __, 151 --4. .... O C_71 AD- 0 C VI o _.. -n CO 0 mmuni ,565 - _Nr iv - CID U1 U1 CD CZ 01 CO CO - (.0 -... .1t, (.11 _ 04 0 Cn O) 0 CT .01 CO 0 C.) --, 0 01 CO -..1 .-4 -c.. in Cri 0 0 CD (.11 N CD (Ti co --A -4 C) 0 - ,000 C-n C DE) - 0 CD .. C.) V -D. 0 1).. 0 - •■1 c, 0. t 0 0 0 y 0 -0 -0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 C) 000C:3000 0 C:, CD 0 -o 0 0 0 1 1 I I o 0 I I 0000000 0 0 cp 0 a) (0 c.rD Cl r" QD C,D cn r., co OD CO .D. CD CO Cll CD 0' CD CD CO 0 CD 0 Ca 0 CO -.D. 7", -• ° 41E 0 -D. .D. .D. CI --, Cl 0 0 CO -.. -- 0 F.: al 3. C/1 - r...) o .o. co - cn -4 (.11 (I) o -o 0 a 0 0p c) -co -o -co b o co co 0 CJ 0 0 0 0 b c> o 0 o .-c 0 0 0 I I IiIIIII CO I 0 I 0 0 0 0 0 c:;■0 CD 1 ..., 1 -.i. 53- co 3 3 5 5 ry Cl __.. _, (..-: S ,951 co ,951 PO oci CO 0 -... A. 1,0 -.D. - .O. 06 01 __,, 0 CO In () c) co tv cm - C) co ift X - 0 0 0- OD OD cn Cl to al ,000 CO cn to 5- cc co ,0 o c) -.1 -- - to 4). c) ---4 u, - c) Cl c..) 00 o 0 b "c) "cc -o c' c) C D C > 0 0 0 C 0 0 0 CD 0 0 C:D 0 0 0 0 CD CD CD `.2 I 0 0 0 C)C, CD CD - I I 1 r 0 00 I 000 C 0 0 0 0 -ID 2 2 7" 2 cu ,572 ,57 C) ,572 C,„) 0 CTI c> - o 3 2 W r0 TV C.) C.) CI 0.) 0 .a. trl - ND (..0 ."---• - - 0 ---.4 ,0 C....) 0 ,00 Cil ,0 -4 01 CD Cl (7, - -,1 VI CD c- 0 ■ 00 (1) 00 -C 0 0 0 0 0 0 0 F s 0 (z) 0.00 0 0 0 C) Fc I I i t I i I q C) I i QC) CD 0 0 0 0 0 c13 Cl) -N. ...%. z. - r,..) .0 ..0. ... (4) co - O 0 TOT N.> IV - -c. CV C.) Crl ...J. ..c.. --, _es) .1). .Lrt --• c) 10 0 Cr") (..,-1 (..0 CO CJ ■ 0 (.0 In c..) Ift 1..n on cn -` b..) --, -4 C.) 0/ 0 CO J -c.n Cl X AL I -4 -4 . .-.4 co 0 0 0 - 0 0 -, - OD on ---,- n.) 0 a? A.. - IND cc o -.., -. 0 0 0 0 - CD 0 C.) - CO -,1 - 4,-, hi -0 0 O b ------0 -__ _ - - - - 0 0 o - CD § § 8 8 8 8 8 8 . :`-:,' 8 8 8 8 8 .888' 6 6 C 0 °o 00 op.... 0 00000C:D 0 ct) .• ...... l . . C :3; t‘l 0 xj Ca °r1 C C) CA ro !71- z NI N IV II CI I V •Jamo! UZAZ ZnIEA ewleD Jad jeal -JeaC sno!naul atp JOJ IEL)) JO ohs-6 'quo s! 1a2pnqi7661/E661 atp Jo anreA !ea! ato `anuanai luawuJonoo pue aotrewiopod 3!tuouoaa paonpoi o1 asuodsoi uI - paiaidap mou are tio!qm samosa.' List° s.luaururano8 umop 8u!melp ,Cq paoUEUU ,c!an!snioxa lsouire SEM 1101)0p Ot11 `JraX" sno!nard alp u! -qouop laSpnq otp JanoD o1 autp 4521J alp Jo. J 2u1mau oq opsaulop of patutp luawuJanop `£661/Z661 ul ainl!puadxg pUE aotreutA DI1Cricl 'Et I -uopIsod motreuy wapuadopu! ire Jo luaurdolonap atp u! clols otp Si sp.p `pueli ow 02 ponad XLIEPtu! alN.A.-k '£661 `Jaqtualdas .relloa e!q!ureN atp `SouarinD IEUO9UU S-11 paonpopu! e!q!ureN "nlf) gu1nuptio3 ale sap!Apou Johan 1112noip ptre `.rea s!tp u!.e2E suIel anlooal loo pm suadar aortp q&lotpre `£661 u! knunao atp Jo sued Is= u1 aAJant anoqe of a2EJane s-em lndlno aouols!sqns - 0.6-vE M0.12 01 papodxa s! Swou= am Jo 1SO.I Qt.r1 `putti ratpo acp uo !.E661 u! %6' I lnoqu Xci au!pap 02 paioadxo s! lonpald opsawop SS032 fear zip ralsetu puoure!p atp u! wiruumop alp 04 anp XiaIlul r 'ESELITUG JO EaTE 1E1MUIUICr3 Jal1.10j atp U1 MI %Z-17 JO a2E..12Ae Ire 11)1M `SiU1p1011 Slap JO % DE Jo a2E.raAe tre lsoI mpg!! :pais autim `sdaro pan ilatp JoJ olrupsgns e se azletu asetpind 01 )a)treut alp olu! pooloJ at sJauued -re-aic 1s-el uopaldap rasse annOS palonns smplaq loo)s pue siatuseJ aoualsIsqns Amyl -au!tarej aoualsIsqns Xpeinnpred `lolaos leiruino!).ge zip tprm a8eTal1 pamuill alp 02 anp `pap-alle ,c isnopas lou sem .1010-as fuii0.1 ot • -pax-lur s-em 1118noip alp Jo loedtu! o!urouona ata 'Z661 II! % C LI luu!Eag %8 uetp ssa! to alai poz!rentrue ire u! pa‘oidui! uopEuu! 031.2c1 .lownsuo-3 lE '£661 "Z661 III Z'ZL 01 {COI = 0861) 1661 ul £'LL 1110-1J -r 31.1111u3 Z661 8upnp span Jo sulial s‘e!q!meN u! uopeJo!Jarap panupuoo E SEM alatti -z661 QUPnp 1:AlpOld IeuDtleil sso.38 lea] atp u! %s-•0 inoqe Jo ire; E ol poi Lapap Jo sunal atp Jo uope.topaiap 1-11tei PralEloosn '1661 uP tretp z661 ionpoicl opsaurop sso.iteal u! tpme..d Jamoi gILL spadsoid: am-Ina pue ;ouEuno_pod o!tuoucceg 1661/Z661 tn naaparo .11-9Da33y swatudoianaa OpT10110Da *sap!redppnw Jamo 0M2 luatutisllqtasa Joi pappatps are salluaD luop!ppv -stualqatd uappi1-2uoi asotp uo awqap omnd po)ouload pue asncie Jo gauss! Jo ssoua.reme ollqnd paptredxo Xpealp stq `palloddns sas-eo alp q2noit1 `anuao aUj .loapou pilqa puE `Swopos `linesse luaaapm `adui Jo sasED map 3E111P pouado a.rluao atp aoms C -eo!_tjv Xicllssod ptre `E!cpurew U! pup! s!tp j0 ism.; am s! anuao aqy •aoHod rIqp.ieFI am ptre Sauwas repos pre tprealljo Sils!um Xic[Elou `SU011n1pSU1ivatuulano2 puE 500N pangs 8uotur uope.roqelloo Jo lonpoad atp s! alluao ota -lootIpu!AN u! rewisoq u!etu alp lu £661 u! pouado s-em allua0 aSng Nip ptre uotnom C osnqv ppo put: uaLuolyk £ £661 - E!q!tutt.,1 u! uopent!s alp u0 uodaj rentiuy dEDINci iftiOwe_cr GOVERNMENT GAZETTE OF THE REPUBLIC OF NAMIBIA No. 1316 WINDHOEK - 28 May 1996 N$2.52 CONTENTS Fage GOITERNAlENT NOTICE Promulgation of Married Persons Equality Act, 1996 (Act 1 of 1996), No. 122 1 of the Parliament Government Notice OFFICE OF THE PRIME MINISTER 1996 No. 122 PROMULGATION OF ACT OF PARLIAMENT The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution. No. 1 of 1996: Married Persons Equality Act, 1996. UV Vv4 411Lb11L - - Act No. 1, 1996 MARRIED PERSONS EQUALITY ACT, 1996 EXPLANATORY NOTE: 1-Words underlined with solid line indicate in- sertions in existing enactments. Words in bold type in square brackets indicate omissions from existing enactments. ACT To abolish the marital power; to amend the matrimonial property law of marriages in community of property; to provide for domicile of married women; to provide for domicile and guardianship of minor children; to further regulate the liability for household necessaries of spouses mar- to give effect ried out of community of property; to amend certain laws to the abolition of marital power; and to provide for matters incidental thereto. (Signed by the President on 20 May 1996) ARRANGEMENT OF ACT 1. Definitions PART I ABOLITION OF MARITAL POWER 2. Abolition of marital power 3. Effect of abolition of marital power PART H PROVISIONS REGARDING MARRIAGES IN COMMUNITY OF PROPERTY 4. Application of this Part 5. Equal powers of spouses married in community of property 6. Spouse's juristic acts generally not subject to other spouse's consent 7. Acts requiring other spouse's consent 8. Consequences of act perfoimed without required consent 9. Litigation by or against spouses 10. Power of court to dispense with spouse's consent with regard to specific ju- ristic act 11. Power of court to suspend powers of spouse 1,4a• - Act No. 1, 1996 MARRIED PERSONS EQUALITY ACT, 1996 PART III PROVISIONS REGARDING DOMICILE OF MARRIED WOMEN AND DOMICILE AND GUARDIANSHIP OF MINOR CHILDREN 12. Domicile of married women 13. Domicile of minor children 14. Guardianship of minor children of a marriage 'PART P1 PROVISIONS REGARDING MARRIAGES OUT OF COMMUNITY OF PROPERTY 15. Liability of spouses married out of community of property for household necessaries PARTY "*-- *MISCELLANEOUS AND AMENDMENT OF CERTALN LAWS 16. Provisions not applicable to marriages by customary law Amendment of section 1 of Matrimonial Causes JurisdictionAct, 1939 17. 18. Amendment of section 5 of Magistrates' Courts Act, 1944 19. Amendment of section 111 of Magistrates' Courts Act., 1944 20. Repeal of section 1, 2 and 3 of MatrimonialAffairs Ordinance, 1955 21. Amendment of section 4 of MattimonialAffairs Ordinance, 1955 22. Amendment of First Schedule to Defence Act, 1957 23. Amendment of section 1 of Marriage Act, 1961 24. Amendment of section 26 of Marriage Act, 1961 25. Substitution of certain expression in Marriage Act, 1961 26. Substitution of section 23 of Banks Act, 1965 27. Repeal of section 17 of Administration of Estates Act, 1965 Amendment of section 72 of Administration of Estates Act, 1965 28. Substitution of section 85 of Administration of Estates Act., 1965 29. 30. Amendment of section 3 of Prescription Act, 1969 31. Amendment of section 216 of Companies Act, 1973 32. Amendment of section 218 of Companies Act, 1973 33. Amendment of section 1 of Rents Ordinance, 1977 34. Repeal of section 13 of Boxing and Wrestling Control Act, 1980 Amendment of section 2 of Combating of Immoral practicesAct, 1980 35. 36. Substitution of section 62 of Building Societies Act, 1986 37. Amendment of section 32 of Close Corporations Act, 1988 38. Short title and commencement No. 1316 Governntent Ga.zette 28 May 1996 4 MARRIED PERSONS EQUALITY Actct No. 1, 1996 ACT, 1996 arliament of the Republic of Namibia, as fol- • BE IT ENACTED by the p lows:- Dennitions In this Act, unless the context indicates otherwise - 1. "bank" means any person carrying on a banking business as defined in the Banks Act, 1965 (Act 23 of 1965); "court" means the High Court, and includes, for the purposes of section 10 and 11, a judge in chambers and, for the purposes of section 10, a magistrate's court which has jurisdiction in the matter concerned; "building society" means any person carrying on business as a building society as defined in the Building Societies Act, 1986 (Act 2 of 1986); "joint estate" means the estate of a husband and wife married in community of property. PART I ABOLITION OF MARITAL POWER Abolition of marital power 2. (1) Subject to the provisions of this Act with regard to the adminis- tration of a joint estate - the corn law rule in terms of which a husband acquires the marital thepower over the person and property of his wife is hereby repealed; and (b) the marital power which any husband had over the person and property of his wife immediately before the commencement of thisAct, is hereby abolished. (2) The abolition of the marital. power by paragraph (b) of subsection (1) shall not affect the legal consequences of any act done or omission or fact existing before such abolition. Effect of abolition of marital power 3. Subject to this Act, the effect of section 2(1) is - (a) to remove the restrictions which the marital power places on the legal capacity of a wife to contract and litigate, including, but not limited to, the restrictions on her capacity - (i) to register immovable property in her name; Act No. 1, 1996 MARRIED PERSONS ACT, 1996 to act as an executrix of a deceased estate; (ii) to act as a trustee of an insolvent estate; (iii) to act as a director of a company; and (iv) (v) to bind herself as surety; and (b) that the common law position of the husband as head of the family is abolished, provided that nothing herein shall be construed to prevent a husband and wife from agreeing between themselves to assign to one of them, or both, any particular role or responsibility within the family. PART II IN COMMUNITY PROVISIONS REGARDING MARRIAGES OF PROPERTY Application of this Part every marriage in community 4. The provisions of this Part shall apply to of property, irrespective of the date on which such marriage was entered into. Equal powers of spouses married in community of property 5. Subject to this Part, a husband and wife married in community of prop- erty have equal capacity - to dispose of the assets of the joint estate; (a) to contract debts for which the joint estate is liable; and (b) to administer the joint estate. (c) acts generally not subject to other spouse's consent Spouse's juristic spouse married in community of property may Subject to section 7, a perform6. any juristic act with regard to the joint estate without the consent of the other spouse. Acts requiring other spouse's consent (4) and ((5),5) and sub- subsection (1) Except in so far as permitted by on of roperty shall not 7. and 11, a spouse married in community p ject to sections 10 without the consent of the other spouse - (a) alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate; UOVerlalacut 6 MARRIED PERSONS EQUALITY Act No. 1,1996 ACT, 1996 (b) enter into any contract for the alienation, mortgaging, burdening with a servitude or conferring of any othetreal right in immovable property forming part of the joint estate; (c) alienate, cede, orpledge any shares, stocks, debentures, debenture bonds, ce policies, mortgage bonds, fixed deposits or similar assets, or insuranceany investment by or on behalf of the other spouse in a financial institu- tion, forming part of the joint estate; (d) alienate or pledge antjewellery, coins, stamps, paintings, livestock, or any other assets forming part of the joint estate and held mainly as in- vestments; of fufurniture or other effects (e) alienate, pledge, or otherwise burden any the common household forming part of the joint estate; (f) as a credit receiver enter into a credit agreement as defined in the Credit • Agreements Act, 1980 (Act 75 of 1980)and to which-the provisions of that Act apply in terms of section 2 thereof; (g) as a purchaser enter into a contract as defined in the Sale of Land on Instalments Act, 1971 (Act 72 of 1971), and to which the provisions of that Act apply; (h) bind himself or herself as surety; (i) receive any money due or accruing to that other spouse or the joint estate by way of - remuneration, earnings, bonus, allowance, royalty, pension or (1) gratuity by virtue of the other spouse's employment, profession, trade, business, or services rendered by him or her; - compensation for loss of any income contemplated in subpara (ii) graph (1); inheritance, legacy, donation, bursary or prize left, bequeathed, (iii) made or awarded to the other spouse; income derived from the separate property of the other spouse; (iv) dividends or interest on or the proceeds of shares or investments (v) in the name of the other spouse; or the roceeds of any insurance policy or annuity in favour of the (vi) th p other spouse; or (j) donate to another- person any asset of the joint estate or alienate such en- an asset without value, excluding an asset of which theprejudice donation the rinterestate unreasonably anon does not and probably will not Act No. 1, 1996 • MARRIED PERSONS EQUALITY ACT, 1996 of the other spouse in the joint estate, and which is not contrary to any of the provisions of paragraph (a), (b), (c), (d) and (e). (2) The consent required under subsection (1) for the performance of an act contemplated in that. subsection may be given either orally or in writing, but the consent required for the performance of - (a) any such act which entails the registration, execution, or attestation of a deed or other document in a deed registry; or (b) an act contemplated in paragraph (h) of that subsection, shall, in respect of each separate performance of such act, be given in writing only. (3) The consent required for the performance of any act contemplated in paragraphs (b) to (j) of subsection (1), except where it is required for the registra- tion, execution, or attestation of a deed or other document in a deeds registry, may also be given by way of ratification within a reasonable time after the perfor- mance of the act concerned. (4) Notwithstanding subsection (1)(c), a spouse married in community of property may without the consent of the other spouse - (a) sell listed securities on a stock exchange and cede or pledge listed secu- rities in order to buy other listed securities; or (b) alienate, cede, or pledge - (i) a deposit held in his or her name at a building society or bank; or (ii) building society shares registered in his or her name. (5) A spouse married in community of property may, in the ordinary course of his or her profession, trade, occupation, or business perform any of the acts referred to in paragraphs (b), (c), (f) and (g) of subsection (1), without the consent of the other spouse as required by that subsection. (6) In determining whether a donation or alienation contemplated in sub- section (1)(j) does or probably will unreasonably prejudice the interest of the regard to the value of the other spouse in the joint estate, the court shall have property donated or alienated, the reason for the donation or alienation, the finan- cial and social standing of the spouses, their standard of living and any other factor which in the opinion of the court should be taken into account. Consequences of act performed without required consent , . . ,. _. ried in community of property enters into a trans- 8. (1) If a spouse mar action with another person without the consent required by the provisions of sec- or tion 7, or without leave granted by a competent court in terms of section 10 contrary to an order of a court in terms of section 11, and - No. 131t Government Gazette 28 May 1996 8 MARREED PERSONS EQUALITY Act No. 1, 1996 ACT, 1996 (a) that other person does not know and cannot reasonably know that the transaction is being entered into without such consent or leave or in contravention of that order, as the case may be, such transaction shall be deemed to have been entered into with the required consent or leave or while the power concerned of the spouse has not been suspended, as the case may be; that spouse knows or ought reasonably to know that he or she will prob- (b) ably not obtain such consent or leave or that the power concerned.has been suspended, as the case may be, and the joint estate suffers a loss as a result of that transaction, in adjustment shall be effected in favour of the other spouse - upon division of the joint estate; or (i) upon demand of the other spouse at any time during the subsis- tence .of the marriage. (2) In determining for the purposes of subsection (1)(b) whether or not a joint estate has suffered any loss as a result of the alienation of any property, regard shall be had not only to the economic value of the property in question but lienation of that also to any sentimental replacement value which, at the time of a property, such property had to the spouse without whose consent the property was alienated. (3) Where the amount of a loss determined for the purpose of subsection (I )(b) consists of, or includes, an amount representing - (a) the sentimental replacement value of any property as contemplated in subsection (2); or the value of any asset being a personal effect of the spouse without (b) whose consent such asset was alienated, the amount representing that value shall upon the making of an adjustment be allocated in full for the benefit of the spouse without whose consent the property in question was alienated, and no deduction shall be allowed in respect of the other spouse by virtue of his or her interest in the joint estate. (4) Where pursuant to a demand of a spouse in terms of subsectionz mined( an adjustment during the subsistence of a marriage an amount is determined to be payable to that spouse in settlement of such adjustment, the amount in question shall be recovered from the separate property, if any, of the other spouse, and only in so far as such other spouse has no separate property, from the joint estate: Pro- vided that where an amount is recovered from the joint estate, there shall, upon a subsequent division of theioint estate, be allocated to the spouse to whom the payment was made, and as a first chaff against the value of the assets available have contnluted to the said distribution, such an amount as that spouse may foradjustment by virtue of his or her interest in the joint estate. Government Gazette i. May 177u No. 1316 Act No. 1, 1996 MARRIED PERSONS EQUALITY ACT, 1996 Any amount paid or asset transferred to a spouse during the subsistence (5) of the marriage in settlement of an adjustment demanded by that spouse in terms of subsection (1)(b)(ii), and any proceeds derived therefrom, chall be the separate property of such spouse, but in the event of the sequestation of the joint estate such property and proceeds shall vest in the trustee of that insolvent estate as if the adjustment in question had not been effected. For the purposes of paragraph (b) of subsection (1), if it is proved in any civil (6)proceedings that a spouse entered into a transaction without the consent re- quired in terms of section 7(1), or leave granted in terms of section 10, it shall be resumed, unless the contrary is proved, that he or she knew that he or she would Pprobably not obtain the consent,or leave in question. Litigation by or against spouses 9. (1) A spouse married in community of property shall not without the written consent of the other spouse institute legal proceedings against another person or defend legal proceedings instituted by another person, except legal pro- ceedings - (a) in respect of his or her separate property; for the recovery of damages, other than damages for patrimonial loss, (b) by reason of the commission of a delict against his or her person; matter relating to his or her profession, trade, occupa- (c) in respect of a tion, or business. A party to legal proceedings instituted or defended by a spouse may not challenge(2) the validity of the proceedings on the ground of want of the consent required in terms of subsection (1). If costs are awarded against a spouse in legal proceedings instituted or I defended(3) by him or her without the consent required in terms of subsection (1), the court may, with due regard to the interest of the other spouse in the joint estate and the reason for the want of consent, order that those costs be recovered from the separate property, if any, of the first-mentioned spouse and, in so far as those costs cannot be recovered, that they be recovered from the joint estate, in which case the court may order that upon the division of the joint estate and adjustment shall be effected in favour of the other spouse. (a) An application for the surrender of a joint estate shall be made by (4) both spouses. An application for the sequestration of a joint estate shall be made against (b) both spouses: Provided that no application for the sequestration of the debtor shakbe dismissed on the ground that such debtor's a estate ofis a joint estate if the application satisfies the court that despite reasonable steps taken by him or her he or she was unable to establish whether the debtor is married in community of property or the name and address of the spouse of the debtor. Government Gazette ao 10 MARRIED PERSONS EQUALITY Act No. 1, 1996 ACT, 1996 (5) Where a debt is recoverable from a joint estate, the spouse who in- curred the debt or both spouses jointly may be sued therefor; and where a debt has been incurred for necessaries for the joint household, the spouses may be sued jointly or severally therefor. Power of court to dispense with spouse's consent with regard to specific ju- ristic act a spouse married in community of property withholds the consent required10. inIf terms of section 7 or 9 or if that consent cannot for any other reason be obtained, a court may on the application of the other spouse give that spouse leave to perform the act in question without the required consent if the court is satisfied, that such withholding is unreasonable , the case where the consent is withheld inor, in any other case, that there is good reason to dispense with the consent. suspend powers of spouse Power of court to A court may, on the application of a spouse, if it is satisfied that it is essential11. for the protection of the interest of that spouse in the joint estate, suspend for a definite or indefinite period any power that the other spouse may exercise in terms of this Part, either in general or in relation to a particular act as the court te may specify in r ' PART III PROVISIONS REGARDING DOMICILE OF MARRIED WOMEN AND DONIICILE AND GUARDIANSEEP OF MINOR CIDIDREN Domicile of married women The domicile of a married woman shall not - 12. by virtue only of the marriage; or (a) where applicable, by virtue only of the provisions of Article 41 of the (b) Schedule to the Recognition of Certain Marriages Act, 1991 (Act 18 of 1991), of her husband, but shall be ascertained by that bereference considered to the to same be the factors same as,as apply in the case of any other individual capable of acquiring a domicile of choice. Domicile of minor children The domicile of a child shall be the place with which that 13.' (1) (a) child is most closely connected. a child resides with his or her parents normal course of events, unless the contrarY is shown, (b) If, in the with one of them, it shall be resumed,psumed, or is where he or she so resides. that such child's domicile ACT, 1996 (2) For the purposes of subsection (1) - "child" means any person under the age of 18 years, excluding such a person who by law has attained the status of a major, and "parents" includes the adoptive parents of a child and the parents of a child who are not married to each other. ' Guardianship of minor children of a marriage 14. (1) Notwithstanding anything to the contrary contained in any law or the common law, but subject to any order of a competent court with regard to sole guardianship of a minor child or to any right, powea or duty which any other person has or does not have in respect of a minor child, the father and the mother shall have equal guardianship over a minor child, including an adopted child, of their marriage, and such guardianship shall, subject to subsection (2), with respect to rights, powers and duties be equal to the guardianship which every guardian immediately before the_commenceraent of this-Act hadamder the.common law in respect of his or her minor children. (2) Where both the father and the mother have guardianship of a minor child, each one of them is competent, subject to any order of a competent court to the contrary, to exercise independently and without the consent of the other any right or power or to carry out any duty arising from such guardianship: Provided that, unless a competent court orders otherwise, the consent of both parents shall be necessary in respect of - the contracting of a marriage by. the minor child; the adoption of the minor child; the removal of the minor child from Namibia by either of the parents or any other person; (d) the application for the inclusion of the name of the minor child in the passport issued or to be issued to any one of the parents; (e) the alienation or encumbrance of immovable property or any right to immovable property vesting in the minor child. PART IV PROVISIONS REGARDING MARRIAGES OUT OF COMMUNITY OF PROPERTY Liability of spouses married out of community of property for household necessaries (1) Spouses married out of community of property are jointly and 15— severally liable to third parties for all debts incurred by either of them in respect of necessaries for the joint household. Government Gazette 28 May 19V0 12 ERSONS EQUALITY Act No. 1, 1996 NIARRIED PACT , 1996 Unless the parties agree otherwise, a spouse married out of community (2) of property before or after the commencement of this Act is liable to contribute to rata according to his or her financial means, necessaries for the joint householdpro thisAct, a spouse and, in the case of a marriage subsisting at the commencement of shall, notwithstandingthe provisions of section 3 of the MatrimonialAffairs Ordi- which were in force immediately before the nance, 1955 (Ordinance 25 of 1955) commencement of this Act, be deemed to have been so liable as from the begin- ning of such marriage. out of community of property has a right of recourse (3) A spouse married against the other spouse in so far as he or she has contributed more in respect oof necessaries for the joint household than for which he or she is liable in terms sisting at the date of commence subsection (2), and, in the case of a marriage sub ment of this Act, such right of recourse is enforceable also with respect to the period of the marriage before the commencement of this Act, but without preju- dice to the provisions of subsection (4). In any action commenced by the issue of process on or before the date (4) of commencement of this Act, a claim based on the right of recourse conferred by the proviso to section 3 of the Matrimonial Affairs Ordinance, 1955, shall, not- withstanding the repeal of that section by this Act, not be affected by any provi- sion of this section, and such claim shall be justiciable as if this Act had not been passed. This section shall not be construed as conferring on the husband a right (5) to reclaim anything that he had already paid at the date of commencement of this Act in satisfaction of a right of recourse exercised by his wife by virtue of section the Matrimonial Affairs Ordinance, 1955, before the repeal of that Ordinance 3 of by this Act. PART V MISCELLANEOUS AND AMENDMENT OF CERTAIN LAWS I- Provisions not applicable to marriages by customary law 16. The provisions - regarding the abolition of the marital power and the consequences of (a) that abolition as set out in Part I; regarding marriages in community of property as set out in Part II; and (b) regarding marriages out of community of property as set out in Part IV, (c) do not apply to marriages by.-customary law. 11U. is Act No. 1, 1996 MARRIED PERSONS EQUALITY ACT, 1996 Amendment of section 1 of Matrimonial Causes Jurisdiction Act, 1939, as amended by section 6 of Act 37 of 1953 and section 21 of Act 70 of 1968 17. The following section is hereby substituted for section 1 of the Matri- monial Causes Jurisdiction Act, 1939: "Jurisdication 1.. (I) A court shall have jurisdiction in a divorce action if the parties are or either of the parties is - (a) domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or ordinarily resident in the area of jurisdiction of the court (b) on the said date and have or has been ordinarily resident in Namibia for a period of not less than one year immedi- ately prior to that date. (2) A court which has jurisdiction in terms of subsection (1) shall also have jurisdiction in respect of a claim in reconvention or a counter-applica- tion in the divorce action concerned. (3) A court which has jurisdiction in terms of this section in a case where the parties are or either of the parties is not domiciled in Namibia shall determine any issue in accordance with the law which would have been appli- cable had the parties been domiciled in Namibia on the date on which the divorce action was instituted. (4) The provisions of this Act shall not derogate from the jurisdiction which a court has in terms of any other law or the common law. (5) For the purposes of this Act a divorce action shall be deemed to be instituted on the date on which the summons is issued or the notice of motion is filed or the notice is delivered in terms of the rules of court, as the case may be.". Amendment of section 5 of Magistrates' Courts Act, 1944 18. Section 5 of the Magistrates' CourtsAct, 1944 (Act 32 of 1944) is hereby amended by the substitution for subsection (2) of the following subsection: "(2) The court may in any,case, in the interest of good order or public mor- als, direct that a [civil] trial shall be held [with dosed doors] in camera or that other cat- (with such exceptions as the court may direct) [females or) minors or I.JL12..e1§M1a-1r the public generally shall uct be permitted to be present thereat?. 14 lijOVernnaent. LialrGUA• MARRIED PERSONS EQUALITY Act No. I, 1996 ACT, 1996 Amendment of section 111 of Magistrates` Courts Act, 1944, as amended by section 10 of Act 63 of 1976 Section 111 of the Magistrates' Courts Act, 1944, is hereby amended by 19. the deletion of subsection (4). Repeal of section 1, 2 and 3 of MatrimonialAffairs Ordinance, 1955 Sections 1, 2 and 3 of the MatrimonialAffairs Ordinance, 1955 (Ordi- 20. nance 25 of 1955), are hereby repealed of section 4 of MarrimonialAffairs Ordinance, 1955, as amended Amendment by section 3 of Ordinance 9 of 1967 Section 4 of the ManimonialAffairs Ordinance, 1955, is hereby amended - 21. (a) by the substitution in subsection (1) for the words preceding paragraph (a) of the following words: WestAfrica] of Namibia or any judge thereof "The High Court [of South may -"; by the substitution for subsection (3) of the following subsection: (b) "(3) Subject to any order of court - a parent to whom the sole guardianship or custody of a minor has (a) been granted under subsection (1) or a father or mother upon whom a children's court has under section [58(1) of the Children's Or- ct dinance, 1961 (Ordinance 31 of 1961)] 60 of the 126.11(1,s135 of 1960),conferred the exclusive right to exercise any parental powers in regard to a minor, may by testamentary disposition appoint any person to be the sole guardian or to be vested with the sole custody of the minor, as the case may be; and of a minor to whom the sole guardianship of (b) the [father] parent the minor has not been granted under subsection (1) or upon whom a children's court has not conferred the exclusive right to exercise any parental powers in regard to a minor shall not be entitled by testamentary disposition to appoint any person as the guardian of the minor [in any other manner than to act jointly with the mother] unless such parent was the ale natural Guardian i me- diately before his her death."; (c) by the deletion of subsection (4); by the substitutin for subsection (5) of the following subsection: (d) "(5) The court or a "ud2e may where a parent has appointed a ard- ian or custodiairas provided in paragraph (a) of subsection (3), IVO. li 10 TC141.11.2Gia %J.:1ZZ= L.0 may 1.7.7%.; Act No. 1, 1996 MARRIED PERSONS EQUALITY ACT, 1996 upon application of the other parent or such guardian, made after the death of the testator or testarix, make such order in regard to the guardianship or custody of the minor as the court or judge may deem in the interest of the minor"; (e) by the substitution for subsection (6) of the following subsection: "(6) If an order under section [58 of the Children's Ordi- nance, 19610 60 of the Children's Act, 1960, is rescinded, or if an order under subsection (1) of this section granting the sole guardianship or custody of a minor to a parent lapses or is rescinded or is varied in such a manner that the parent is not longer the sole guardian or vested with the sole custody of the minor, any disposition made under subsection (3)(a) shall lapses."; and (f) by the deletion of subsection (7). Amendment of First Schedule to Defence Act, 1957 22. Section 78 of the First Schedule to the Defence Act, 1957 (Act 44 of 1957), is hereby amended by the substitution for subsection (3) of the following subsection: "(3) Whenever it appears to a convening authority or a court martial that, in the interests of good order or public morals or the administration of justice or for reasons of security, a trial ought not to be conducted or contin- ued in open court, the convening authority of the court martial may at any time either before the commencement or during the course of the trial, order that persons other than the accused, his or her counsel and the necessary court officials, or [females,] that juveniles or other [classes] categories of persons shall not be permitted to be present at the trial?. Amendment of section 1 of Marriage Act, 1961, as amended by section 1 of Act 51 of 1970 and section 1 of Act 5 of 1987 23. Section 1 of the Marriage Act, 1961 (Act 25 of 1961), is hereby amended by the substitution for the definition of "Minister" of the following definition: "Minister' means the Minister of Home Affairs;". Amendment of section 26 of Marriage Act, 1961, as substituted by section 6 of Act 5 of 1987 24. Section 26 of the Marriage Act, 1961, is hereby amended by the substi- tution for subsection (1) of the following subsection: "(1) No boy or girt under the age of 18 years [and no girl under the age of 15 years] shall be capable of contracting a valid marriage except with the written permission of the [Cabinet] Minister or any [officer] staff mem- • ber in the [Government Service] Public Se *ce authorized thereto by the Government Gazette 28 May 199b 16 Act No. I, 1996 MARRIED PERSONS EQUALITY ACT, 1996 he grillg may grant in any particular case [Cabinet] Mini_lter which [it or] in which [it or] he or he considers such marriage desirable: Provided that such permission shall not nelieve the parties to the proposed marriage from the obligation to comply with all other requirements prescribed by law: Pro- vided further that such permission shall not be necessary if by reason of any such other requirement the consent of a judge or court having jurisdiction in the matter is necessary and has been granted?. Substitution of certain expression in Marriage Act, 1961 The Marriage Act, 1961, is hereby amended by the substitution for the 25. expression "Cabinet", wherever it occurs, of the expression "Minister". Substitution of section 23 of Banks Act, 1965, as inserted by section 49 of Act 99 of 1980 Section 23 of the Banks Act, 1965 (Act 23 of 1965), is hereby substi- 26. tuted for the following section: "Minors a 23. Notwithstanding anything to the contrary contained in any law, i- minor over the age of sixteen years may be a depositor with a banking inst ian ex- or assistance of his or herr guard tution and may without the and cede, ecute all necessary documents, give all necessary quitt pledge, borrow against and generally deal with his or her deposit as he or she thinks fit and shall enjoy all the privileges and be liable to all the obliga- tions attaching to depositors.". 1965 Repeal of section 17 of Administration of Estates Act, Section 17 of the Administration of Estates Act, 1965 (Act 66 of 1965), 27. is hereby repealed. Amendment of section 72 ofAdministration of Estates Act, 1965, as amended by section 7 of Act 54 of 1970 28, Section 72 of the Administration of Estates Act, 1965, is hereby amended - (a) by the substitution in subsection (1) for the words preceding paragraph (a) of the following words: • "The Master shall, subject to the provisions of subsection (3) and to any applicable provision of [section 5 of the Matrimonial Affairs Act, 1953 section 4 of the Matrimonial Affairs Ordi- (Act No. 37 of 1953), and] nance, 1955 (Ordinance No. 25 of 1955), [of the territory,] or any order of court made under any such provision, on the written application of any person -"; and No. 1316 Government Gazette 28 May 1996 17 Act No. I, 1996 MARRIED PERSONS EQUALITY ACT, 1996 (b) by the substitution for paragraph (a) of subsection (1) of the following paragraph: "(a) who has been nominated by will or written instrument - (i) by the parent to whom sole guardianship of a minor has been granted under subsection (1) of the said section 4 or on whom the exclusive right to exercise parental powers in regard to a minor has been conferred under section 60 of the Children's Act, 1960 (Act 33 of 1960); or (ii) by the mother of an illegitimate minor who has not been so deprived of the guardianship of such minor or of her paren- tal powers over him or her, to administer the property of such minor and to take care of his or her person as tutor, or to take care of or administered his or her property as curator; Or". Substitution of section 85 of Administration of Estates Act, 1965 29. The following section is hereby substituted for section 85 of theAdminis- talon of Estates Act, 1965: "Applications of certain sections to tutors and curators 85. Sections 24, 26.28, 36.42(2), 46, 48. 49(2). 52. 53. 54 and 56 shall mutatis mutandis apply with reference to tutors and curators: Provided that any reference in any of the said sections to a will shall, for the purposes of its appli- cation under this section, include a reference to any written instrument by which the tutor or curator concerned has been nominated.". Amendment of section 3 of Prescription Act, 1969 30. Section 3 of the Prescription Act, 1969 (Act 68 of 1969), is hereby amended by the substitution for paragraph (a) of subsection (1) of the following paragraph: "(a) the person against whom the prescription is running is a minor or is insane, [or is a woman whose separate property is controlled by her husband by virtue of his marital power,) or is a person under curatorship, or is prevented by superior force from interrupting the running of prescription as contemplated in section 4; or". Amendment of section 216 of Companies Act, 1973, as substituted by section 15 of Act 59 of 1978 31. Section 216 of the CompaniesAct, 1973 (Act 61 of 1973), is hereby amended by the substitution for subsection (3) of the following subsection: Government Gazette 28 May 1996 No. 13 16 1 8 Act No. 1,1996 MARRIED PERSONS EQUALITY ' ACT, 1996 "(3) In respect of any of the matters referred to in section 211(1) the return referred to in subsection (2) shall contain a statement, signed by a direct(); a secretary who is a body corporate or an officer of the company, that - 211, Of the director or officer in (a) the consent, referred to in section respect of whom particulars are reflected in such return, has been obtained on a duly completed and signed prescribed form;And (b) any person appointed as director or officer of the company, is not disqualified under section 218 or 219 r; and (c) the written consent under section 218(1)(b) of the husband of any woman appointed as a director of the company has been obtained on the prescribed formj.". of section 218 of Companies Act, 1973, as amended by section 17 of Amendment Act 59 of 1978 32. Section 218 of the Companies Act, 1973, is hereby amended by the substi- tution for paragraph (b) of subsection (1) of the following paragraph: legal disability (save a married woman "(b) a minor or any other person under subject to the marital power of her husband whose written consent to her appointment as a director has, on the form referred to in section 211(1)(a), been lodged with the companyl;". Amendment of section 1 of Rents Ordinance, 1977 Section 1 of the Rents Ordinance, 1977 (Ordinance 13 of 1977), is hereby 33. amended by the substitution for the definition of "lessee" of the following definition: "lessee", with regard to - widower or widow of a lessee who rented (a) a business premises, includes the the premises in his or her personal capacity, if such widower or widow, as the case may be, was living with the lessee at the time of the lessee's death and, unless the lease ageement expressly.or by necessary implication pro- hibits sublease, cession or assignment by the lessee, a sublessee, cessionary or assignee of the lessie; and a dwelling, includes a sublessee and the widower or widow or deserted (b) or sublessee who was living with him or her at the time spouse of a lessee of his or her death or desertion and is desirous of a continued occupation 2fthalyel -". 13 of Boxing and Wrestling Control Act, 1980 Repeal of section 34. Section 13 of the Boxing andWrestling ControlAct, 1980 (Act 11 of 1980), is hereby repealed. 19 No. 1316 Government Gazette 28 May 1996 ci No. 1,1996 MARRIED PERSONS EQUALITY ACT, 1996 Amendment of section 2 of Combating of Immoral Practices Act, 1980 35. Section 2 of the Combating of Immoral Practices Act, 1980 (Act 21 of 1980), is hereby amended by the substitution for paragraph (g) of subsection (2) of the following paragraph: "(g) any person whose [wife] spouse keeps or lives in or manages or assist in the management of a brothel, unless [he] such person proves that he or she was ignorant thereof or that he or she lives apart from [her] shgiddimg.e and did not receive all the money or any share of the money taken therein.". Substitution of section 62 of Building Societies Act, 1986 36. The following section is hereby substituted for section 62 of the Building Societies Act, 1986 (Act 2 of 1986): "Minors 62. Unless otherwise provided by the rules of the society, a minor over the age of sixteen years may be a member of or depositor with any society and may without the consent or assistance of his or her guardian execute all neces- sary documents, give all necessary acquittances and cede, pledge, borrow against and generally deal with his or her share or deposit as he or she thinks fit, and shall enjoy all the privileges (except that a minor shall not hold office) and be liable to all the obligations attaching to members or depositors.". Amendment of section 32 of Close Corporations Act, 1988 37. Section 32 of the Close CorporationsAct, 1988 (Act 26 of 1988), is hereby amended by the deletion of subsection (2). Short title and commencement 38. This Act shall be called the Married Persons Equality Act, 1996, and shall come into operation on a date to be determined by the Minister of Justice by notice in the Gazette. ■•■