United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1995 - Namibia, 30 January 1996, available at: http://www.refworld.org/docid/3ae6aa3b28.html [accessed 23 July 2014]
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NAMIBIA Namibia is a multiparty, multiracial democracy, headed by President Sam Nujoma, leader of the South West Africa People's Organization (SWAPO), which 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 Namibian 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 Government continued its policy of detaining civilians trying to cross the border from Angola, occasionally shooting at those who did not respond to orders to "stop." There continued to be unconfirmed reports that NDF forces murdered several persons along this border. Police officers 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. Mining, ranching, and fishing, the mainstays of the market sector, are still largely controlled by white Namibians and foreign interests. However, government policy 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. There remains a wide disparity between income levels of blacks and whites which perpetuates social and economic tensions in the country. The Government began implementing land reform legislation, enacted late in 1994. Citizens enjoy a wide range of constitutionally provided civil, political, and economic liberties. Nevertheless, there continued to be credible reports that police abused criminal suspects. SWAPO continued to delay providing a complete accounting for missing detainees held during the preindependence period. Prison conditions remain harsh. Abiding by a High Court ruling that Namibian citizens had the constitutional right to return to their homeland, the Government permitted former counterinsurgency fighters-- "Koevoets"--to return to Namibia. Inherited problems of racial discrimination and glaring disparities--especially in education, health, employment, and working conditions-- continued in 1995, despite sustained efforts by the Government to reduce them. Although the Constitution prohibits discrimination based on race and gender, in practice women continued to experience serious legal and cultural discrimination. Violence against women and children, including rape and child abuse, has risen to alarming levels. Societal discrimination against indigenous people 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 confirmed reports of political or other extrajudicial killings. However, there were repeated, though unconfirmed, reports that NDF members murdered between three and five civilians along the country's northeastern border with Angola. NDF members were reportedly enforcing a "shoot to kill" order from the President effectively sealing the border with National Union for the Total Independence of Angola (UNITA)-held territory in Angola. There is no indication that the Government has taken any action to investigate NDF officers accused of the 1994 shooting of civilians along the border. In January the Prosecutor General decided to reopen the 1989 inquest into the death of SWAPO activist Anton Lubowski. Although in 1994 the court determined that he had been killed at the behest of the former South African Civil Cooperation Bureau (CCB), the Attorney General later ruled there was insufficient evidence to prosecute successfully Lubowski's assassins.
There were no reports of politically motivated disappearances. Nevertheless, the public and political parties continued to focus on the unexplained disappearances of persons detained by SWAPO prior to independence. Roughly 200 former SWAPO detainees are still unaccounted for. In 1994 senior SWAPO officials promised a complete accounting of everyone who had died or disappeared during the liberation struggle, but at year's end this document had not been produced. This issue will likely remain controversial until the Government conducts a full investigation and releases its results.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution states 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, primarily during arrest and initial interrogation. Human rights organizations maintain that complaints of police brutality are not taken seriously by police officials in the northern part of the country, and that these officials have refused to accept criminal complaints against police officers. The case against three NDF soldiers who were accused of an unprovoked attack on two persons in Outjo in 1993 was dropped and the policemen were reinstated. The 1994 court case involving four police officers accused of beating prisoners in Oshakati police cells was similarly dropped; the police officers in question were reportedly reinstated during the year. Prison conditions are harsh, but do not generally threaten the life or health of prisoners. Human rights organizations continued to complain about overcrowded prisons and severe disciplinary action taken against prisoners. The Government admitted serious resource constraints leading to overcrowded detention facilities, but in March it began important administrative reforms by creating a Ministry of Prisons and Correctional Services. This new Ministry, charged with administering the country's prisons and jails, has put special emphasis on correctional and rehabilitation functions, including vocational training. The Government also took an important step by deciding to end the practice of holding youthful offenders in the same cells as adult criminals. At year's end, the new policy had been put into effect only in the Windhoek area. It also stepped up the training of police and prison officials and continued to grant legal counsel, nongovernmental organizations (NGO's), and diplomatic officials regular access to 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. A trial must take place within "a reasonable time," or the accused must be released. The accused are entitled to defense by legal counsel of their choice; the State provides counsel for the indigent. Some traditional leaders reportedly continued to detain and imprison persons accused of minor offenses without recourse to police or judicial review. The Government repeatedly condemned these actions and called upon the public to report such practices to the authorities. It also continued training traditional leaders on the legal limits to their authority. The Government does not use exile for political purposes, but until a court ruling, it temporarily blocked the return of former members of the preindependence counterinsurgency group, Koevoets who were in self-exile in South Africa (see Section 2.d.).
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: magistrate's court, 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 they were consistent with constitutional protections and existing laws. At year's end, the Government had not yet presented its draft enabling legislation to Parliament. The constitutional right to a fair trial, with a presumption of innocence until proven guilty, is generally afforded by the judiciary. However, problems in the traditional system and the long delays in hearing some cases in the regular courts limit this right in practice. The lack of qualified magistrates and other court officials has resulted in a serious backlog of criminal cases. There is also a shortage of attorneys; there were only about 140 lawyers engaged in private practice in Namibia in 1995. As a result, the courts continued to have a backlog of over 2,400 cases, which in some instances translated into a 6-month or longer delay 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. The authorities respected these rights in practice.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for these fundamental freedoms, including academic freedom, and the Government respected them in practice. The government-owned Namibian Broadcasting Corporation (NBC) operates most radio and television services. Although the NBC provides significant coverage of the opposition and airs viewpoints critical of the Government, there were growing complaints that the NBC, in particular the television service, became less balanced in its coverage of sensitive issues. Human rights groups complained that reporters engaged in self-censorship and felt pressure to portray the Government favorably. NBC radio has a much wider listenership than the television service and is acknowledged to be much more balanced in its reporting, but there have been allegations that Herero language programs have been taken off the air because of antigovernment rhetoric. There are three private radio stations and a private television cable service which broadcasts Cable News Network and South African news programs. A variety of privately owned newspapers operate without government restriction and no apparent self-censorship.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for freedom of assembly and association, and the Government respects these rights in practice. During 1995 various organizations, including political parties and religious groups, held large meetings and public gatherings without interference. In October police forces in the capital used tear gas and rubber bullets on a demonstration by ex-independence fighters injuring 12 persons. The ex-PLAN (People's Liberation Army of Namibia) fighters had taken a deputy minister hostage for several hours while pressing their demands for jobs and monetary payments from the Government (see Section 6.e.).
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 citizens with the rights to travel freely, both domestically and abroad, to reside and settle in any part of the country, and to repatriate. In practice, the Government respected these freedoms. Following a High Court ruling, the Government permitted former counterinsurgency fighters and dependents (Koevoets) who could document their Namibian citizenship, to return home. Koevoets, members of a notorious counterinsurgency unit organized by the South African army, were believed to have committed egregious human rights abuses during the preindependence period. U.N. High Commissioner for Refugees officials have observed a marked improvement in the Government's policy with respect to refugees. Those in the refugee camps have been permitted to leave the facilities and some have been allowed to work or study; however, some refugees' status had not yet been decided. The Government urged the Namibian public to contribute to refugee assistance activities and to treat refugees humanely. Some 92 percent of the 1,320 recognized refugees in Namibia are Angolans.
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 and seek voter support. 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 president 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 challenged the results of the election in January, based on discrepancies in four constituencies in northern Namibia where votes cast exceeded the number of registered voters. In March the three-member Namibian High Court rejected the DTA's challenge, ruling 2-to-1 that Namibia's 1992 Electoral Act does not empower the judiciary or Electoral Commission to order the inspection of ballots in civil cases. The High Court did, however, permit the DTA to appeal to the Supreme Court. At year's end, the Court had not ruled on the case. Women are increasingly involved in the political process, but remain seriously underrepresented. During 1995 women held six positions at the Cabinet or subcabinet level and six seats in the two houses of Parliament. An additional three women were elected to the National Assembly in the December 1994 elections. Historic economic and educational disadvantages have served to limit the participation of the indigenous San ethnic group in politics. The only San member of the National Assembly died recently, and at year's end had not yet been replaced.
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
Local organizations, such as the National Society for Human Rights (NSHR) and the Legal Assistance Centre, operated freely, criticizing the Government's handling of the SWAPO detainee issue, the treatment of refugees, misconduct by members of the police, and other matters. 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 for Southern Africa worked openly on a variety of human rights problems affecting women, ethnic minorities, students, and other groups. In January, however, the Government brought charges against the leaders of the NSHR, for allegedly contravening a section of the Racial Discrimination Prohibition Act of 1991. The charges arose from a report NSHR published that sought to demonstrate the relationship between ethnicity and voting patterns in Namibia. In February the Government dropped the charges. Represntatives of international human rights organizations traveled to Namibia and discussed human rights issues with governmental and nongovernmental representatives. The Government also invited international observers to witness the December 1994 elections.
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." Individual members of the Government have actively decried discrimination against women, the disabled, and those afflicted with AIDS, but little concrete action has been taken to end effectively discrimination in these and other areas.
Violence against women, including beatings and rape, is a widespread and growing problem. Because of traditional attitudes regarding the subordination of women, many incidents of abuse are never reported to the authorities. However, in those few grave abuse cases where legal action has been initiated, the courts often sentenced male offenders, including spouses, to long terms of imprisonment. The courts sentenced convicted rapists to prison terms averaging 6 to 9 years. During the year, the police opened another Women and Child Abuse Centre in the town of Rehoboth, adding to existing centers in Oshakati, Windhoek, and Keetmanshoop. The centers are staffed with specially trained female officers to assist victims of sexual assaults. Despite constitutional protections, women faced persistent discrimination in both formal and customary law and, most importantly, in deep-rooted societal practices by all ethnic groups. A number of preindependence statutes continued to discriminate against women in such areas as property, business, and employment. For example, a married woman may not open a bank account without the approval of her husband or other close male relative. Also, under existing community property laws, married women of all groups are defined as legal minors and need the written consent of their husbands before they may legally acquire or purchase property. Traditional practices also permit family members to confiscate the property of deceased men from their widows and children, particularly in northern Namibia. The Government, prodded by women's groups, began to address these inequalities, and on December 4 the National Assembly passed the Married Persons Equality Bill which would effectively abolish a husband's marital right as sole head of household and legal guardian of the children of a marriage. Upon passage by the National Council (the other house of the bicameral legislature), women in civil marriages may own property, take a job, and open a bank account without their husband's written consent.
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. Child abuse is a serious and growing problem. The authorities vigorously prosecuted cases involving crimes against children, particularly rape and incest, and encouraged discussion and the issuance of printed materials in the schools. The Women and Child Abuse Centres also worked to reduce the trauma suffered by abused children and provided training to police officials on handling this problem. In August the Ministry of Basic Education issued new directives instructing schools to readmit teenage mothers. Previously, pregnant schoolgirls were expelled and not permitted to continue their education. The problem of teenage pregnancy as a result of sexual contact between teachers and students is widespread and has led to calls for disciplinary action against teachers who engage in sexual relations with students.
People with Disabilities
There were no reports of official discrimination on the basis of disability, and the Government continued its efforts to provide the disabled with appropriate treatment and education. The Government does not legally require special access to public buildings for the disabled. However, some municipal governments have installed ramps and special curbing at street crossings for the disabled. Disabled rights groups have complained, however, about a lack of rehabilitation facilities.
The San people, Namibia'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. 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 many 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 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 to lessen the continuing and serious inequalities in education, health, housing, employment, and access to land. Also, some opposition parties, including members of the Herero and Nama ethnic groups, claimed 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 the application by the "Baster" community for the Government to return its traditional land in the Rehoboth area was denied by the High Court which ruled that the community's "traditional lands" reverted to the central Government upon independence. The Basters have appealed the decision to the Supreme Court, which in October announced that it needed more time to consider the case.
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. The Government's intention to prohibit both labor unions and the application of the 1992 Labor Act within the export processing zone (EPZ) in Walvis Bay was successfully challenged by the National Union of Namibian Workers (NUNW). Unions are independent of government and may form federations. The two principal trade union umbrella organizations are the National Union of Namibian Workers, 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 those providing essential services (e.g., jobs related to public health and safety), 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 on an ad hoc basis in the existing magisterial districts) for arbitration. The Labor Act protects legally striking workers from unfair dismissal. Unemployment, which is near 40 percent, remained a significant problem in Namibia, affecting largely the black majority. Apartheid-era attitudes among employers contributed to a Namibian labor scene characterized by growing tensions and turmoil. The deteriorating state of labor-management relations is evidenced by the spate of actual or threatened strikes, and an atmosphere of mistrust. 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 in 1995.
b. The Right to Organize and Bargain Collectively
The 1992 Labor Act guarantees employees 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 now applies to the prospective EPZ in Walvis Bay, after a compromise was reached by the Government and NUNW representatives in August. The original EPZ legislation, enacted by Parliament early in 1995, exempted the new EPZ from the provisions of the Labor Act, thereby outlawing trade union activity within the zone. The compromise calls for revision of the EPZ act to allow application of the 1992 Labor Act, but still precludes strikes and lockouts. 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 has yet to get under way by year's end, the effectiveness of this compromise in securing the rights of workers in the EPZ could not be determined. Many trade unionists continued to challenge the constitutionality of the compromise, which effectively bars the fundamental right to strike in the EPZ.
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 Namibia's expansive, privately owned commercial farms in order to document possible Labor Code violations. A Wage Commission investigation into the plight of farm workers was started in 1995, but was not completed because funds to conduct the survey were reprogrammed for drought relief.
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. Boys in the rural areas traditionally start herding livestock at age 7.
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 Namibians earn significantly more on average than their black compatriots, in large part because whites own most of the country's productive resources and had access to education that enabled them to take advantage of the skilled labor shortage. In 1995 former members of the People's Liberation Army of Namibia (PLAN) demonstrated on several occasions to demand jobs and financial assistance. Although the Government established a special commission to find suitable employment for the ex-PLAN fighters, PLAN frustrations boiled over in October when the veterans, dissatisfied with the Government's compensation package, detained a deputy minister for several hours against his will. At least a dozen ex-PLAN fighters were injured when police used tear gas and rubber bullets to disperse the unruly crowd (see Section 2.b.). After independence, the standard legal work week 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. 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 and provides for their right to remove themselves from dangerous work situations.