United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1996 - Namibia, 30 January 1997, available at: http://www.refworld.org/docid/3ae6aa2b0.html [accessed 14 February 2016]
This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
Released by the Bureau of Democracy, Human Rights, and Labor, January 30, 1997 Namibia is a multiparty, multiracial democracy with an independent judiciary. President Sam Nujoma, leader of the South West Africa People's Organization (SWAPO), won Namibia's first free elections in November 1989. President Nujoma and the SWAPO party received just over 70 percent of the vote in the December 1994 Presidential and National Assembly elections, which, despite some irregularities, were generally regarded as free and fair. The police, supervised by the Ministry of Home Affairs, and the Namibian Defense Force (NDF), supervised by the Ministry of Defense, share responsibility for internal security. The civilian authorities maintain effective control of the security forces, although individual members of the police forces occasionally committed human rights abuses. Namibia's modern market sector produces most of its wealth while a traditional subsistence agricultural sector (mainly in the north) supports most of its labor force. The principal exports are diamonds and other minerals, cattle, and fish. Mining, ranching, and fishing the mainstays of the market sector are still largely controlled by white Namibians and foreign interests. Government policy, however, is to "Namibianize" the increasingly important fishing sector, so that more indigenous entrepreneurs are able to participate, and to provide opportunities for black Namibians in the potentially lucrative and labor-intensive tourism industry. The gross domestic product is $1,663 per capita. However, there remains a wide disparity between income levels of blacks and whites. The Government generally respected the human rights of its citizens; although problems remained in several areas. There continued to be credible reports that police abused criminal suspects. Despite the release of the "Heroes Book," SWAPO continued to fail to provide a complete accounting for missing detainees held during the preindependence period. Prison conditions remain harsh, but the Government took several steps during the year to improve them and to increase the emphasis on rehabilitation. A large court backlog leads to lengthy delays of trials. The Married Persons Equality Act, signed into law in May, eliminated discriminatory practices against women in civil marriages. Women married under customary law, however, continued to experience serious legal and cultural discrimination. Although violence against women and children, including rape and child abuse, continues to be a serious problem, the issue received increased attention from government officials and human rights activists. In September the President elevated the head of the Department of Women's Affairs to cabinet-level rank. Inherited problems of racial and ethnic discrimination and glaring disparities especially in education, health, employment, and working conditions continued, despite sustained efforts by the Government to reduce them. Societal discrimination against indigenous peoples persists.
Respect for Human Rights
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
There were no reports of political or other extrajudicial killings. There were no developments concerning the reported shooting of civilians in border areas in 1995 and no reports of such instances in 1996. According to press reports, the Namibian and South African Governments held discussions regarding the extradition from South Africa of those implicated in the murder of SWAPO activist Anton Lubowski. In 1994 the Namibian High Court determined that Lubowski had been killed at the behest of the former South African Civil Cooperation Bureau (CCB). While the Attorney General later ruled that there was insufficient evidence to prosecute the assassins, the Prosecutor General decided to reopen the 1989 inquest in 1995.
There were no reports of politically motivated disappearances. Human rights organizations, political parties, and the public continued to call for a full accounting of unexplained disappearances of persons detained by SWAPO prior to independence. In August President Nujoma released the long-promised, official SWAPO memorial book, known as the Heroes Book, which lists the names of nearly 8,000 people who died during the liberation struggle. Local human rights organizations harshly criticized the book, characterizing it as an unconvincing coverup and declaring that the listing is fraught with inaccuracies and omissions regarding those who died or disappeared in SWAPO detention camps. SWAPO was viewed widely as having failed, once again, to deal forthrightly with the missing detainee issue. While some of the Government's critics would be satisfied with an official apology for SWAPO abuses against these detainees, others are pressing for full accountability through a truth commission, prosecutions, and convictions.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution provides that "no persons shall be subject to torture or to cruel, inhuman, or degrading treatment or punishment." There were credible reports, however, that members of the police beat or otherwise abused civilians, either during arrest or in police station houses. According to human rights organizations, the overall number of such instances appears to be decreasing, although the problem remains particularly acute in northern areas. In November a policeman accused of abusing a criminal suspect was charged with attempted murder, assault, and kidnaping. The police launched internal investigations of alleged abuse of prisoners but there were no public reports that abusers were punished. Prison conditions are harsh, but do not pose a serious threat to life or health. Human rights organizations continued to complain about prison overcrowding. In March 1995 the Government created a Ministry of Prisons and Correctional Services, charged with administering the country's prisons and jails. The Ministry emphasizes correctional and rehabilitation functions, including vocational training, and has made some concrete progress. For example in 1996 the Government opened two new rehabilitation facilities where inmates are taught skills for use upon their release. The Government also expanded its model program to separate youthful offenders from adult criminals, although in many remote and rural areas juveniles continue to be held with adults. The Government continued to grant nongovernmental organizations (NGO's) and diplomatic officials regular access to prisons and prisoners.
d. Arbitrary Arrest, Detention, or Exile
The Constitution forbids arbitrary arrest or detention, and the Government generally respected these provisions in practice. According to the Constitution, persons who are arrested must be informed of the reason for their arrest and must be brought before a magistrate within 48 hours of their detention. The accused are entitled to defense by legal counsel of their choice, and those who cannot afford a lawyer are entitled to state-provided counsel. In practice, however, many accused persons in remote and rural areas are not legally represented, primarily due to resource constraints. A trial must take place within "a reasonable time," or the accused must be released. Human rights organizations criticized the length of time that pretrial detainees were held, which stretched up to 1 year in many cases while investigations were pending. Some traditional leaders reportedly continued to detain and imprison persons accused of minor offenses without recourse to police or judicial review. The Government continued training traditional leaders on the legal limits of their authority. The Government does not use forced exile.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary, and the Government respects this provision in practice. The formal court system has three levels: 30 magistrates' courts, the High Court, and the Supreme Court. The latter also serves as the court of appeals and as a constitutional review court. Most rural Namibians first encounter the legal system through the traditional courts, which deal with minor criminal offenses, such as petty theft and infractions of local customs, among members of the same ethnic group. A special commission, created to make recommendations on the prospective jurisdiction of traditional courts, concluded that traditional cultural practices and structures should be maintained, provided that they were consistent with constitutional protections and existing laws. The Traditional Authorities Act delineates which offenses may be dealt with under the traditional system. The constitutional right to a fair trial, with a presumption of innocence until proven guilty, is generally afforded by the judiciary. However, long delays in hearing cases in the regular courts and problems associated with the traditional system limit this right in practice. The lack of qualified magistrates, other court officials, and private attorneys has resulted in a serious backlog of criminal cases, which often translated into long delays sometimes 6 months or more between arrest and trial. To address these problems, the Government, together with the University of Namibia, provided in-service legal training to magistrates and other court officials at the University's training center. There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The Constitution provides all citizens with the right to privacy and requires arresting officers to secure a judicial warrant for certain listed offenses before conducting a search. Government authorities respected these rights in practice, and violations are subject to legal sanction.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of speech and of the press, and the Government generally respected these rights. The government-owned Namibian Broadcasting Corporation (NBC) operates most radio and television services. Although the NBC provides significant coverage of the opposition, there were growing complaints that the NBC, in particular the television service, became even less balanced in its coverage of sensitive issues than in 1995 and did not cover certain issues at all. This was especially evident relating to coverage of the missing detainees question where private organizations involved in the issue have been critical of the lack of coverage of press conferences dealing with the question. In April the Journalists' Association of Namibia adopted a resolution condemning the Government for attempting to suppress public debate on the detainee issue. NBC radio has a much wider audience than the television service and is acknowledged to be somewhat more balanced in its reporting. There are three private radio stations and a private cable television service which broadcasts Cable News Network and South African news and entertainment programs. A variety of privately owned newspapers operate without government restriction. While there is evidence of self-censorship in state-owned media, reporters for independent newspapers criticize the Government openly and do not engage in evident self-censorship. In April the National Assembly passed the Powers, Privileges, and Immunities of Parliament Act which included a clause making publication of leaked documents or false information about parliamentary matters a criminal offense. However, when the Media Institute of Southern Africa, other civil liberties groups, and foreign diplomats criticized this attempt at limiting press freedom, the Government and the National Council amended the bill to exclude this provision. The Government respects academic freedom.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for freedom of assembly and association, and the Government respects these rights in practice. Various organizations, including political parties and religious groups, held large meetings and public gatherings without interference.
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government respects this right in practice.
d. Freedom of Movement within the Country, Foreign Travel, Emigration, and Repatriation
The Constitution provides for these rights, and the Government respects them in practice. The Government cooperates with the United Nations High Commissioner for Refugees (UNHCR), and UNHCR officials have observed a marked improvement in the Government's refugee policy. However, in a number of cases the status of the asylum applicants had not yet been decided. In an attempt to deal with this backlog, the UNHCR recently appointed a nongovernmental legal organization to screen cases. There were no reports of forced expulsion of those having a valid claim to refugee status. Human rights organizations, however, reported cases where authorities initially denied detained illegal immigrants the right to apply for refugee status until human rights organizations or attorneys intervened. Namibia is a first asylum country and continues to permit asylum seekers to enter the country. It does not turn back asylum seekers. There are presently 2,020 refugees and asylum seekers at the Osire refugee camp, 90 percent of whom are from Angola. The rest are from Zaire, Rwanda, Burundi, Tanzania, and other African countries. Asylum seekers are interviewed by host country officials and those granted refugee status are permitted to work and attend school or the University of Namibia. Schools have been established for refugees and asylum seekers at Osire camp. Its residents are permitted to leave the camp, which is not fenced.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
Citizens exercised this constitutional right for the second time in December 1994 in what were generally agreed despite some irregularities to be free and fair presidential and parliamentary elections. The Government printed and distributed useful and informative voter guides with lists of government and opposition candidates and requested international election observers. There were televised debates, and the opposition parties were able to campaign freely. The Constitution establishes a bicameral parliament and provides for general elections every 5 years and regional elections every 6 years. Incumbent President Nujoma was reelected to a second 5-year term of office during the country's first postindependence elections for the National Assembly and Presidency in December 1994. The ruling SWAPO party won 53 of the 72 elected National Assembly seats, the Democratic Turnhalle Alliance (DTA, the major opposition party) secured 15 seats, and three smaller parties obtained a total of 4 seats. The DTA unsuccessfully challenged the results of the election, based on discrepancies in four constituencies in the north where votes cast exceeded the number of registered voters. In March 1995, the High Court rejected the DTA's challenge; this decision was upheld by the Supreme Court in midyear. Women are increasingly involved in the political process but remain seriously underrepresented. There are 3 female ministers and 3 female deputy ministers out of a total of 22 ministerial and 22 deputy ministerial positions. In addition two women hold cabinet-level positions, Director of the National Planning Commission and Ombudsman. Women hold 16 of 98 parliamentary seats. In June female legislators formed a Women's Caucus in Parliament to review legislation for gender sensitivity. Historic economic and educational disadvantages have served to limit the participation of the indigenous San ethnic group in politics.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
Local nongovernmental organizations, such as the National Society for Human Rights (NSHR) and the Legal Assistance Center, operated freely, criticizing the Government's handling of the SWAPO detainee issue, misconduct by members of the police, and discrimination against women and indigenous ethnic groups. In addition other human rights organizations such as the Namibia Institute for Democracy, the Human Rights Documentation Center, the Center for Applied Social Sciences, and the Media Institute of Southern Africa worked openly on a variety of human rights issues affecting women, ethnic minorities, and other groups. Representatives of international human rights organizations traveled to Namibia and discussed human rights issues with governmental and nongovernmental representatives.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution prohibits discrimination based on race, creed, gender, or religion, and specifically prohibits "the practice and ideology of apartheid." However, the Government has not taken effective action against discrimination faced by women and the disabled.
Violence against women, including beating and rape, is widespread. Because of traditional attitudes regarding the subordination of women, many incidents of abuse are never reported to the authorities. In those few grave abuse cases where legal action has been initiated, however, the courts often sentenced male offenders, including spouses, to long terms of imprisonment. An historical problem of low bail, which has allowed some males to repeat their offenses, appears to be lessening. The courts sentenced convicted rapists to prison terms averaging 6 to 9 years. In April the Namibian Women's Organization praised the decision by the High Court to sentence a convicted rapist to life imprisonment. The man had sexually assaulted a woman in front of her children in 1995. This was the first time a convicted rapist was given a life sentence. Centers for abused women and children in Oshakati, Windhoek, Keetmanshoop, and Rehoboth are staffed with specially trained female police officers to assist victims of sexual assaults. Despite constitutional protections and new legislation, women face persistent discrimination arising out of deep-rooted traditions of all ethnic groups and customary law. The Government, prodded by active women's rights organizations, has begun to address some forms of discrimination. In September the President elevated the head of the Department of Women's Affairs to cabinet-level rank. In addition the Married Persons Equality Act, promulgated in May, provides women in civil marriages who are married under community property laws with status equal to that of their husbands. Married women are now permitted to open bank accounts, sign contracts, and serve on the boards of companies without having to obtain their husbands' permission. This new legislation, however, does not apply to customary (traditional) marriages, where women continue to face legal and cultural discrimination. Traditional practices also continue to permit family members to confiscate the property of deceased men from their widows and children.
Children's rights, including those of protection from economic exploitation and from work that is hazardous or harmful to their health, education, mental, spiritual, moral, or social development, are enumerated in the Constitution. In practice the Government has been able to commit only limited resources to the protection of children's welfare. The Government devotes 31 percent of the national budget to education. The Government, with the assistance of international organizations, launched a national polio eradication campaign as part of its ongoing immunization program. A seminar for parliamentarians, organized under U.N. auspices, was held on the Convention on the Rights of the Child. A juvenile justice diversion program was expanded to separate juvenile offenders from adults in the criminal justice system. Child abuse is a serious and increasingly acknowledged problem. The authorities vigorously prosecuted cases involving crimes against children, particularly rape and incest, and encouraged discussion and the issuance of printed materials in schools. In September a child rapist was given a 20-year sentence for sexually abusing a 10-year-old girl. The centers for abused women and children also worked to reduce the trauma suffered by abused children and provided training to police officials on handling this problem.
People with Disabilities
While discrimination on the basis of disability is not addressed in the Constitution, the Labor Act of 1992 prohibits discrimination against disabled persons in employment. The Government does not legally require special access to public buildings for the disabled. Some municipal governments, however, have installed ramps and special curbing at street crossings for the disabled.
The San people, the country's earliest known inhabitants, historically have been exploited by other ethnic groups. The Government has taken a number of measures to end this societal discrimination against the San, including seeking their advice about proposed legislation on communally held lands and increasing their access to primary education. Similarly, the Government has sought the views of the Himba people in northwest Namibia in connection with feasibility studies for the construction of a major hydroelectric dam in the heart of their traditional territory. By law all indigenous groups are able to participate equally in decisions affecting their lands, cultures, traditions, and allocations of natural resources. Nevertheless, the San and other indigenous Namibians have been unable to exercise fully these rights as a result of historically minimal access to education and economic opportunities under colonial rule, coupled with their relative isolation in remote areas of the country. The Traditional Authorities Act, which came into effect in December 1995, defines the role, duties, and powers of traditional leaders. The act provides that customary law that is inconsistent with provisions of the Constitution is invalid and delineates which types of crimes may be dealt with in traditional courts. The act assigns to traditional leaders the role of guardians of culture and tradition, and also mandates that traditional leaders elected to Parliament must choose between their traditional and elected offices before the end of 1996. Some traditional leaders and human rights organizations have maintained that this provision is unconstitutional, and a court challenge is being pursued.
The Constitution prohibits discrimination based on race and other factors and specifically prohibits "the practice and ideology of apartheid." Nevertheless, as a result of more than 70 years of South African administration, societal, racial, and ethnic discrimination persists, and some apartheid-based statutes have not yet been repealed or replaced by the Parliament. Many nonwhites continued to complain that the Government was not moving quickly enough in education, health, housing, employment, and access to land. Also some opposition parties, including members of the Herero and Nama ethnic groups, complained that the SWAPO-led Government provided more development assistance to the numerically dominant Ovambo ethnic group of far northern Namibia than to other groups or regions of the country. In June 1995, the High Court denied the application by the "Basters" community for the Government to return its traditional land in the Rehoboth area, ruling that the community's "traditional lands" reverted to the central Government upon independence. The Supreme Court agreed with the High Court's judgment and dismissed the Basters final appeal in May.
Section 6 Worker Rights
a. The Right of Association
The Constitution provides for freedom of association, including freedom to form and join trade unions. The 1992 Labor Act extended that right to public servants, farm workers, and domestic employees. Trade unions have no difficulty registering, and there are no government restrictions on who may serve as a union official. No union has been dissolved by government action. During the year, the Namibian public service held vigorously contested union elections. Unions are independent of Government and may form federations. The two principal trade union umbrella organizations are the National Union of Namibian Workers (NUNW), and the Namibia People's Social Movement (NPSM). The larger NUNW continues to maintain its strong affiliation with the ruling SWAPO party. Roughly half of the wage sector is organized to some degree, although less than 20 percent of full-time wage earners are organized. Except for workers providing essential services (e.g., jobs related to public health and safety) and workers in the nascent export processing zones (EPZ's), workers enjoy the right to strike once conciliation procedures have been exhausted. Under the Labor Act, strike action can only be used in disputes involving specific worker interests, such as pay raises. Disputes over worker rights, including dismissals, must be referred to a labor court (which is convened when needed in the existing magisterial districts) for arbitration. The Labor Act protects legally striking workers from unfair dismissal. Unemployment, which is nearly 40 percent, remained a significant problem in Namibia, affecting largely the black majority. Apartheid-era attitudes among some employers contributed to a divisive, 10-week strike at a major mining firm. While the atmosphere at the three mine sites was tense and occasionally violent, the confrontation was eventually defused by high-level government intervention. Trade unions are free to exchange visits with foreign trade unions and to affiliate with international trade union organizations. Unions have exercised this right without interference. The American Federation of Labor-Congress of Industrial Organizations, through its African-American Labor Center representative in South Africa, provided technical assistance to the NUNW during regular visits to Namibia.
b. The Right to Organize and Bargain Collectively
The 1992 Labor Act provides employees with the right to bargain individually or collectively. Collective bargaining is not widely practiced outside the mining and construction industries; wages are usually set by employers. As unions become more active, however, informal collective bargaining is becoming more common. The Labor Act provides a process for employer recognition of trade unions and protection for members and organizers. The law also empowers the labor court to remedy unfair labor practices and explicitly forbids unfair dismissals, which may be appealed to the labor court. The Labor Act applies to the prospective EPZ in Walvis Bay. A compromise on this point was reached by the Government and NUNW representatives in August 1995. However, trade unionists continued to challenge the constitutionality of the compromise because it precludes strikes and lockouts. Under the compromise, labor-related issues in the EPZ would be referred to a special EPZ Dispute Settlement Panel, composed of employers and workers, for expeditious resolution. As business activity in the Walvis Bay EPZ had just begun to get under way by year's end, the effectiveness of this compromise in securing the rights of workers in the EPZ could not yet be determined.
c. Prohibition of Forced or Compulsory Labor
Forced labor is prohibited by law. Although there were no formal complaints filed with the Ministry of Labor, there were ongoing reports in the media that farm workers often receive inadequate compensation for their labor and are subject to strict control by farm owners. Ministry of Labor inspectors sometimes encountered problems in gaining access to the country's large, privately owned commercial farms in order to document possible Labor Code violations.
d. Minimum Age for Employment of Children
Under the 1992 Labor Act, the minimum age for employment is 14 years, with higher age requirements for certain sectors such as mining, construction, and night work. Ministry of Labor inspectors generally enforce minimum age regulations, but children below the age of 14 often work on family and commercial farms, and in the informal sector. A report on the status of children estimates that 13,800 children under 15 years of age are already in the labor force. Of these, 41 percent are working as unpaid laborers on family and commercial farms. Boys in rural areas traditionally start herding livestock at age 7. According to 1991 figures, approximately 2 percent of farm workers are children (mainly from the San ethnic group). There were also reports that Angolan and Zambian children, who are not protected by the Labor Act, worked on communal and cattle farms in border areas.
e. Acceptable Conditions of Work
There is no statutory minimum wage law. In Windhoek's nonwhite townships, many workers and their families have difficulty maintaining a minimally decent standard of living. White citizens earn significantly more on average than do black citizens, in large part because whites own most of the country's productive resources and have had access to education that enables them to take advantage of the skilled labor shortage. After independence the standard legal workweek was reduced from 46 to 45 hours, and includes at least one 24-hour rest period per week. An employer may require no more than 10 hours per week of overtime. The law mandates 24 consecutive days of annual leave, at least 30 workdays of sick leave per year, and 3 months of unpaid maternity leave. In practice, however, these provisions are not yet rigorously observed or enforced by the Ministry of Labor. During 1996 two important NGO studies one of farm workers and the other of domestic employees highlighted the dismal conditions which some employees encounter while working in these occupations. The Government mandates occupational health and safety standards. The Labor Act empowers the President to enforce them through inspections and criminal penalties. The law requires employers to ensure the health, safety, and welfare of their employees. It provides employees with the right to remove themselves from dangerous work situations.