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TITLE: NAMIBIA HUMAN RIGHTS PRACTICES, 1994 AUTHOR: U.S. DEPARTMENT OF STATE DATE: FEBRUARY 1995 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 and the National Assembly and presidential elections in December 1994. President Nujoma and the SWAPO party received just over 70 percent of the vote in the December 1994 presidential and National Assembly elections, which 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 responsibilities for internal security. NDF soldiers reportedly killed two civilians along the country's border with Angola, and police members were accused of human rights abuses against civilians, including beatings of detainees. The authorities punished some police officers or charged them in court for committing such 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. In September the Government introduced legislation to redistribute underutilized, privately owned farmland, with owners to be compensated at fair market value. Namibians enjoy a wide range of constitutionally provided civil, political, and economic liberties. Nevertheless, there continued to be credible reports that police tortured or otherwise abused criminal suspects. SWAPO continued to delay providing a complete accounting for missing detainees held during the preindependence period. The Government refused initially in August to permit former counterinsurgency fighters to return to Namibia, but it abided by a subsequent High Court ruling that Namibian citizens had the constitutional right to return to their homeland. Inherited problems of racial discrimination and disparities--especially in education, health, employment, and working conditions--continued in 1994, despite sustained efforts by the Government to reduce them. Although the Constitution prohibits discrimination based on race and gender, women continued in practice to experience serious legal and cultural discrimination. Women also experienced widespread societal violence. 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 politically motivated or other extrajudicial killings during 1994. However, there were credible reports that NDF soldiers killed two unarmed civilians in late 1994 along the river boundary between northern Namibia and southeastern Angola. Reportedly, NDF members shot the two while they were attempting to evade capture, as officially authorized by their commanders. The NDF actions may have been in response to an October campaign speech. At year's end, the Government had not taken any disciplinary action against the soldiers responsible for the shootings. While several cases of preindependence political killings remained unsolved, in June, following lengthy inquest proceedings, the High Court determined that SWAPO activist Anton Lubowski, assassinated in 1989, had in all likelihood been killed by Irish citizen Donald Acheson at the behest of the former South African Civil Cooperation Bureau (CCB). The Government expressed its intention to put Acheson and his accomplices on trial for the murder, but extradition proceedings had not been initiated by year's end. The Court also determined that high-ranking officials of the preindependence police and military forces, accused in 1993 by a local newspaper of planning Lubowksi's killing, had not been involved in the act. b. Disappearance There were no reports of disappearances in 1994. Nevertheless, the public and political parties again focused on the unexplained disappearances of persons detained by SWAPO prior to independence. The number of SWAPO detainees still unaccounted for range between 154 and 256. In April senior SWAPO officials promised a complete accounting before the end of the year of everyone who had died or disappeared during the liberation struggle, but it had not done so by year's end. This issue will likely remain controversial until the Government conducts and releases the results of a full investigation. 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 allegations, however, that members of the police beat or otherwise abused civilians, primarily during arrest and initial interrogation. For example, in one case in 1994, an NDF soldier sued the Government for his unlawful arrest by four police officers in October 1993. He was reportedly kicked and punched repeatedly by police at the Katutura police station before being released without charge. His case was pending trial at year's end. The authorities suspended at least four police officers from the police force for beating prisoners in the Oshakati police cells. At year's end their cases had not yet been prosecuted in court. In connection with past offenses, in July the Windhoek magistrate's court ruled in favor of a person who charged that a joint police/NDF patrol had falsely arrested, beaten, threatened, and interrogated him in early 1993, based on his former status as a SWAPO detainee. At year's end, he was pursuing in the High Court a civil damages suit against the police and NDF members involved in the incident. Court proceedings also continued against three NDF members who carried out the June 1993 unprovoked assault and beating of a farming couple near the town of Outjo. In the meantime, the three accused were initially dishonorably discharged from the military but were subsequently reinstated. Prison conditions are harsh but do not generally threaten the life or health of prisoners. During the year, the National Society for Human Rights charged that police and prison cells were overcrowded and that food was inadequate, particularly in Windhoek and Oshakati. Despite admitting its resource constraints in addressing this problem, the Government did take an important step in ending the practice of holding youthful offenders in the same cells as adult criminals. It also stepped up the training of police and prison officials and continued to grant legal counsel, local 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 has generally respected these provisions in practice. According to the Constitution, persons who are arrested must be informed of the reason for their arrest, and they 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 a 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 began training traditional leaders on the legal limits to their powers. As far as known, the Government held no political detainees or prisoners at year's end. The Government does not use exile for political purposes, but it temporarily blocked the return of former members of the preindependence counterinsurgency group, "Koevoet," who were in self-exile in South Africa (see Section 2.d.). e. Denial of Fair Public Trial The constitutional right to a fair trial, with a presumption of innocence until proven guilty, is generally afforded by an independent 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 formal system consists of 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 in 1993 that traditional cultural practices and structures should be maintained, provided they were consistent with constitutional protections and existing laws. The Government had not yet presented its draft enabling legislation to Parliament at year's end. 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 100 lawyers engaged in private practice in Namibia in 1994. As a result, as of August 31, the Government had a backlog of over 2,000 cases, which in some instances translated into a 6-month 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. f. Arbitrary Interference with Privacy, Family, Home, or Correspondence The Constitution grants all citizens the right to privacy and requires arresting officers to secure a judicial warrant for certain listed offenses before conducting a search. These rights were respected in practice. Section 2 Respect for Civil Liberties, Including: a. Freedom of Speech and Press The Constitution provides for these 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 routinely gave prominent coverage to the activities of government officials, it also provided significant coverage to the opposition and viewpoints critical of the Government. There are two private radio stations. 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. Police or municipal permits are required for large, publicized public gatherings but are granted routinely. During 1994 various organizations, including political parties and religious groups, held large meetings and public gatherings without interference. c. Freedom of Religion There is no state religion, and the Government does not restrict the exercise of religious freedom. d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation The Constitution provides citizens 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. However, in one controversial incident in early August, the Government denied entry to a group of Namibian former counterinsurgency fighters and dependents, who attempted to return home from South Africa, because of their preindependence military activities as members of the notorious Koevoet counterinsurgency unit, organized by the South African army, which many believe committed egregious human rights abuses. Two weeks later, the High Court ruled that the Government had acted illegally and unconstitutionally in refusing them the right to return to Namibia. The Government honored the Court's decision and allowed the group, plus other former counterinsurgency members who could document their Namibian citizenship, to return home. Local NGO's and opposition political parties continued to criticize the Government for its alleged lack of a consistent refugee or asylum policy. At midyear, the Government acceded to several U.N. conventions on refugees. Although it expressed initial reservations over Article 26 of the 1951 U.N. Convention (concerning freedom of movement and residence), the Cabinet subsequently ruled that skilled, recognized refugees would be allowed to work or study on a case-by-case basis, and this policy was in effect as the year ended. It was unclear, however, whether this policy would have any impact on the numbers of refugees allowed outside the camps. Some 90 percent of the approximately 1,500 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 free and fair presidential and parliamentary elections in 1994. The Constitution established 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 the 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 the three smaller parties obtained a total of 4 seats. Women are increasingly involved in Namibia's political process but are seriously underrepresented. During 1994 women held three positions at the Cabinet or subcabinet level and seven seats in the two houses of Parliament. An additional three women were elected to the National Assembly as a result of the December elections. Historic economic and educational disadvantages have served to limit the participation of the indigenous San ethnic group in politics. For example, the only San member of the current National Assembly has been unable to participate effectively because he cannot read or write in English and could not obtain a reliable San-English interpreter. 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 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. 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 its December 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." Women 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 unfair preindependence statutes continued to discriminate against women in such areas as property, business, and employment. For example, a 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 in October the Government announced its intention to introduce in Parliament in early 1995 a "married persons equality bill" aimed at removing provisions of law that discriminate against married women, but not single women. Violence against women remained widespread, most commonly in the form of beatings and rape. 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 Namibian police opened new "women and child abuse centres" in the towns of Oshakati and Keetmanshoop, with specially trained female officers to assist victims of sexual assaults. The first facility of this kind was opened in Windhoek in mid-1993. 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. Child abuse is a serious 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. Women and child abuse centers (see above) also worked to reduce the trauma suffered by abused children and provided training to police officials on handling this problem. Indigenous People 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 in Namibia 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. National/Racial/Ethnic Minorities 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 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. The application by the "Baster" community for the Government to return its traditional land in the Rehoboth area was still being considered by the courts as the year ended. 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. Section 6 Worker Rights a. The Right of Association The Constitution provides for freedom of association, including the right 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 serves as a union official. No union has been dissolved by government action. Unions are independent of government and may form federations and confederations. The two principal trade union umbrella organizations are the National Union of Namibian Workers (NUNW), and the Namibia People's Social Movement (NPSM). 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 may be used only in disputes involving 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. Trade unions are free to exchange visits with foreign trade unions and to affiliate with international trade union organizations. The unions have exercised this freedom without interference. The American Federation of Labor-Congress of Industrial Organization, through its African-American Labor Center representative based in South Africa, provided technical assistance to the NUNW during regular visits to Namibia in 1994. b. The Right to Organize and Bargain Collectively The 1992 Labor Act provides 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 a labor court to remedy unfair labor practices and explicitly forbids unfair dismissals, which may also be appealed to the labor court. At present, the Labor Act also applies in the only existing export processing zone (EPZ), located at the town of Arandis. News reports that the Ministry of Trade and Industry might exempt an EPZ in Walvis Bay from the provisions of the Labor Act prompted the NUNW to come out strongly in opposition to any area of Namibia being declared "union free." Draft EPZ legislation was presented to the Parliament in late 1994 but had not been debated or enacted as the year ended. 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 in 1994, there were continuing reports that farm workers sometimes 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. 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 and 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 preferential access to education that enabled 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. Government-mandated occupational health and safety standards are set by law. The Labor Act empowers the President to enforce them through inspections and criminal penalties. The Government carried out a national survey of health and safety standards but had not released any report or upgraded standards by year's end. 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. (###)
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